DISCRETION IN LAW ENFOCEMENT

Discretion is the power of a judge, public official or a private party (under authority given by contract, trust or will) to make decisions on various matters based on his/her opinion within general legal guidelines. It is a public official’s power to act in certain circumstances according to personal judgment. Judicial discretion is the exercise of judgment by a judge or court based on his/her personal judgment and guided by the principles of law. Prosecutorial discretion refers to the varying options available to a prosecutor when prosecuting a criminal case. In criminal law and tort law, discretion is the capacity to distinguish between right and wrong, sufficient to render one responsible for one’s own actions.

Discretion has the meaning of acting on one’s own authority and judgement. In law, discretion as to legal rulings, such as whether evidence is excluded at a trial, may be exercised by a judge. Some view discretion negatively, while some view it positively. Discretion is at all levels of law enforcement.

Discretion in law enforcement, and especially within policing, is critical to both the functioning of the police department and to the relationship with the public the police department serves. It is unusual within the paramilitary policing environment, due to the inverse relationship between discretion at the top of the rank structure and that of the lower end of the rank structure, compared to military bodies and some commercial enterprises (Manning, 2010). Officers who have recently started in patrol exercise more discretion than the chief constable or the highest rank within the department. In comparison, a general in the army possess discretionary powers at a much higher level than does a low-ranking soldier.

“The Art of suiting action to particular circumstances” (Lord Scarman)

‘the quality of being discreet’ (Concise Oxford Dictionary)

The one who is going to decide.

Those in a position of power are most often able to exercise discretion as to how they will apply or exercise that power.

The shift to more professionalism requires the need for management to proactively promote operational decisions in a manner that is reflective of an organic organization and still be able to control its members (Jones, 2008).

However, Sanders and Young (2007) take a dim view of police management’s ability to control the discretion of operational police officers. Discretion, they argue, has the potential to:

  • Lead officers to fabricate evidence
  • Look for guilt rather than truth
  • Summarize statements with bias
  • Handle exhibits poorly and fail to disclose evidence

The ability to control and provide effective leadership to officers, who possess more discretion and autonomy than the management, raises serious implications for police managers.

Crawshaw, Devlin, and Williamson (1998, p.24) argue that it is due to the discretion afforded to police at the operational level that police work is unsupervised and for large amounts of the officer’s day “unsupervisorable.” Pagon (2003, p.159) refers to this as the “discretionary paradox” in which police officers are answerable to their superiors even though they operate with a high degree of autonomy and out of view of their supervisors.

An irony within law enforcement exists because while a law enforcement structure is different from the military, the police still have a quasi-military structure. To further complicate matters, within policing specifically, sergeants have an increased role in administration, which has limited their ability to provide supervision on the street. Ultimately, this does not allow for close supervision of junior officers who are forced to exercise their discretion often without the benefit of the wisdom of experienced supervisors (Butterfield, Edwards, and Woodall, 2005). Lipsky (1980) warns that the need for a high degree of control through supervision is critical in allowing discretion to be effective; without such control, officers will make decisions that are self-promoting and in opposition to organizational goals. Direct supervision and control is a difficult task for front-line managers who are faced with an increased workload.

The ability to make decisions which represent a responsible choice and for which an understanding of what is lawful, right or wise may be presupposed. see Websters Third New International Dictionary (unabridged)

In the legal system, discretion is often defined as the ability to choose where, how and with what severity to act. A person chooses to utilize his or her options and decides which to use, whether this is arresting a person on the street (criminal) or evicting someone from an apartment (civil) or anywhere in between. There are some arguments that implementing discretion overrules or weakens the rule of law. However, laws cannot be written without using discretion and therefore the rule of law serves to guide discretion towards societal expectations, norms and, at least in part, public interest

It is impossible for the police to detect all crimes all the time. However, even if the police were able to detect every crime, resources would not be sufficient to investigate each one and make an arrest. Discretion is needed to filter offences so that only those that are most important will be investigated, even though at times such discretion may be misused (Tillyer and Klahm IV, 2011). Without discretion the police, and indeed the whole criminal justice system, would become overwhelmed with cases, resulting in public displeasure (McLaughlin, 2009). Lipsky (1980) further asserts that discretion among police officers will always be mandatory due to the inevitable lack of resources and the need for an efficient service. Decisions, ethically made, will allow for charges to be limited to only those that matter and will render the police service more efficient in prosecuting only such offences.

However, while efficiency is important in all public organizations, there is the danger that police agencies will lose their way if efficiency is promoted over ethical and rightful decisions concerning the protection of the public and if citizens are denied justice. Rawls (1971, p.71), in his seminal theory on justice, observes that “the principle of efficiency cannot serve alone as a conception of justice.” Discretion, according to Rawls (1971), should not be used as a means of ensuring efficiency but rather as a way of applying a utilitarianism counterbalance to unjust laws within the justice system. The end result should never be efficiency at the expense of human rights and ethical policing. Dobel (2005, p.161) extends this thought process to discretion when noting “that the existence of discretion increases the tension between liberal democracy and public management and administration.” The end result of using discretion as a means to ensure maximum efficiency potentially leads to an abuse of process in which the rights of individuals are superseded by the will to maximize results with minimal resources (Dobel, 2005).

Therefore, the goals of the organization can become ambiguous, caught between ensuring democracy and individual rights and promoting efficiency. Goal ambiguity can lead to placing the rights of individuals at lower levels of importance and can be further fostered by the different subcultures within the police service (Lipsky, 1980).

Goal ambiguity is consistent with some of the inherent problems faced by police officers in operational decision making. Lipsky (1980) identifies a conflict that police confront between client-oriented goals, social-engineering goals, and organizational-centred goals, and spousal-assault policies are an example. In this instance, an officer is mandated to charge where there is evidence even if the officer feels charges are not appropriate and go against the goals of the client—for example, if the victim does not wish to pursue charges (Rowe, 2007). Likewise, an officer who is acting only to comply with policy guidelines may be inclined to perform poorly to compromise the investigation, thereby subverting the charge which he or she was obliged to make, however reluctantly (Lipsky,1980).

Proper use of discretion, within the parameters of McGregor’s definition (as cited in Kleinig, 1996), will effectively allow the state to save resources while enforcing only the violations that the public want enforced. According to Reiner (2010), police require the ability to use discretion due to the inevitable lack of police resources to enforce all laws all the time. While police services chronically lack the resources to formally enforce all laws, they must, as a result, allow officers to determine which laws will be enforced at the operational level (Crawshaw, Devlin and Williamson, 1998; Lipsky, 1980). The discretion allowed at the lower levels of the hierarchy allows police services to spare precious front-line resources while concentrating on those offences that should be enforced in accordance to the police service’s values and/or the values of the community the agency serves. While discretion creates an efficient system, the proper operational decisions must be made at the lower levels of the hierarchy, which will benefit the agency by fostering leadership throughout the organization.

Criminal

The term “Crime is defined as an action that is by law, banned or restricted and enforced via Punishment. But, where law ends and discretion begins lies in implementing those laws. The enforcers, police officers, are tasked with enforcing these regulations, but they often have the discretion of when to file charges and arrest. For example, a traffic violation, the police officer may simply issue a warning. In fact discretion can be found in all stages of the criminal justice system. The victim, has the discretion to use self defense and to report the crime given the opportunity. The Dispatch officer decides the priority of the call, an officer responding has discretion to take statements from witnesses as well as detain potential suspects. The suspect/the accused has the discretion to obtain a lawyer, how they will plead and to accept a plea bargain. The prosecutor has the choice to prosecute a case or drop the charges as well as suggesting plea bargains. The judge has discretion every time an objection is raised or evidence is given. The jury has discretion over the final verdict. These examples are only a small cross section of the chain of choices that is criminal law.

One article shows that when officers respond to a call for service, areas with a high rate of Black or wealthy citizens has a great impact on the officers’ decision to downgrade a crime or incident reported. Officers experience in different surroundings have an impact on the way they react to service calls. The economic status, poverty level, race and ethnicity have an impact on the officer and how he see’s and reacts to his surroundings. Scholar Michael Banton stated that “In different neighborhoods police provide different services”. This is a good example of how and why police are able to use discretion in the performance of their duties. Different environments and neighborhoods provide different levels of dangers and greater levels of crime taking place than others. Which is why an officer might choose to downgrade a crime in a wealthy neighborhood compared to an economically unstable one. The article also states that merely being in a different environment from the one the officer lives in or is accustomed to forces the officer to treat it differently. Thus, the officer would then treat the individuals differently. This can be an argument either for or against police using discretion. On the one hand, all people should be treated equally regardless of race or economic status. On the other hand, officer and public safety are the most important duties for an officer. If an officer can recognize that a certain area requires a different approach in order to keep that safety, they should use that discretion appropriately.