POLICE DISCRETION

Police Discretion

Police Discretion

Introduction

When a police officer observes a violation of the law, for example, someone not wearing a seatbelt or driving 10 miles over the speed limit, or an underage teenager smoking a cigarette, or a middle-aged man eating a sandwich and drinking wine in a municipal park where no alcoholic beverages are allowed, Police officers have got a choice to make: must he arrest the lawbreaker? Warn him? Reprimand him severely, but not arrest him? Ignore the violation? Such decisions are required of police officers on a regular basis, and the decisions are typically made on their own, without supervision or public reporting.

As John Kleinig has noted, when a police officer chooses to beat up a homeless person in a dark alley, that is not a case of discretionary police behavior; rather, it is a obvious infringement of the laws and regulations that the police officer is under an obligation to follow and uphold. That a police officer may have the power and opportunity to commit such an offense does not make it discretionary. Genuinely discretionary police behavior falls within a range of allowed and legitimate choices. Thus, a police officer may have discretion over whether to ticket a driver who is exceeding the speed limit by 5 to 15 miles an hour; but giving a speeding ticket to a driver who is within the speed limit would fall outside the range of legitimate discretion.

Discussion

Police officers routinely exercise discretion while doing their jobs. They make important decisions that affect citizens' lives: whether or not to stop a car, whether or not to make an arrest, and so on.

Most of us have no objection when a police officer exercises her discretion, and chooses not to ticket us for driving 10 miles over the speed limit. But if blacks are routinely ticketed for driving over the speed limit, while similar behavior by whites is ignored, or if a noisy outside suburban party (perhaps involving some underage drinking) is ignored, while a similar party in a less affluent neighborhood draws police sanctions, then the police discretion becomes more troubling. Unfortunately, such discriminatory discretion—against young people, against minority races and ethnic groups, and against people of lower economic status—has occurred: “racial profiling” is the best known example, exemplified by complaints of minority youth that they received a ticket for “driving while black.” (Eadie, 2002)

Discretion in Police Work

A police officer patrolling a city park sees three young men hanging out together. He investigates and finds they are drinking beer in public in violation of a local ordinance. At least one and perhaps two of them may be underage. The officer confiscates the beer, pours it out, and tells them to get out of the park. He could have issued citations but exercised his discretion not to do so. (Gelsthorpe, 2003)

This incident is typical of police discretion. Officers routinely decide not to arrest people who are obviously breaking the law. Far more seriously, they make critical decisions involving the life ...