Abstract This paper discusses whether the myth of the ability for police officers to use discretion when applying laws, does in fact exist or not. The paper begins by defining discretion. It then goes on to discusses certain situations when discretion is most commonly used by the police, such as domestic disturbances and dealing with juveniles or the mentally ill.
Table of Contents:
Abstract
Introduction
What is Discretion?
The Myths Regarding Enforcing the Laws
Examples of Officer's Discretion Discretion with Juveniles
Discretion with the Mentally Ill
Conclusion
From the Paper "What is Discretion?
In order to understand how police officers use discretion, an individual first must know what it is. Discretion is defined by the Merriam-Webster dictionary as, "the ability to make responsible decisions, individual choice or judgment, power of free decision or latitude of choice within certain legal bounds." (Merriam-Webster Online, unknown). An officer's ability to use discretion and have the ability to make good judgment calls sometimes in a split second is crucial. Otherwise, an officer most likely will not have an extensive career in law enforcement."
Abstract The paper discusses why the discretion of police to make autonomous decisions about whether to initiate enforcement action is integral to the realities of maintaining a police authority. The paper explores the benefits and problems with police discretion and explains how specific policing styles for different communities are conducive to effective administrative control of police discretion on patrol.
Outline:
Understanding Police Discretion Benefits and Problems Associated with Police Discretion Controlling Officer Discretion at the Operational Level through Policing Strategies
Conclusion
From the Paper "Effective police operations requires sound decision making at every level, starting with field contacts between first-line officers on patrol and citizens all the way up the ranks of operational supervision and department administration and policy making. Some of the most important decisions made by every police officer, beginning with his first probationary tour of duty, are the decision to refrain from taking enforcement action where, technically, enforcement is justified. That makes perfect sense: if every minor violation of penal law that allowed enforcement or arrest necessarily required enforcement or arrest, police agencies would be perpetually busy processing enforcement of the types of violations that do not threaten the safety and welfare of citizens and society."
An analysis of an article by J.E.Sowa and S.C. Selden, called "Administrative Discretion and Active Representation: An Expansion of the Theory of Representative Bureaucracy."
Abstract This paper examines this article whose purpose is to look at the theory of representative bureaucracy in a slightly different way. Most studies dealing with representative bureaucracy have focused on active representation, but have not looked into the administrative discretion that is often tied to it. It explains how this study seeks not only to discuss the theory of representative bureaucracy, but then move on to administrative discretion and how it is often tied into the active representation of what one does. The main research question is whether administrative discretion and active representation are actually tied together and whether it affects how individuals who are making decisions based on minority status tend to make decisions in favor of those who are of the same race or ethnic background as they are.
From the Paper "The research model that is used is an empirical analysis and is conducted based on a housing loans program and whether individuals who are of minority descent will have a better chance of getting a home loan if the individual who is helping them with the loan is also of their same background. There are several variables in this particular study, with the first one being administrative discretion (Sowa & Selden, 2003). The variables that were chosen were utilized because they were believed that they would affect the behavior of various administrators and this in turn would determine whether decisions that had to do with minority interest would be made by these individuals. The administrative discretion is used in this particular study to see what impact it has on the various policy outcomes that work in favor of minority interest (Sowa & Selden, 2003)."
Abstract This paper examines how discretion is a certificate of authority which gives police officers a vast amount of freedom and how it gives officers authorization to act freely and use that authority in carrying out the rights and responsibilities of policing. The paper further discusses how, in order for police officers to exercise good discretion, there must be guidelines and proper training to apply this discretion successfully. The paper concludes that, without using this unspoken practice, an officer's job would be burdened with another layer of complexity that they would have to overcome.
From the Paper "There are a number of strategies that could be implemented for controlling discretion. First and most important is for law enforcement to hire officers who exhibit use of good police judgment and this comes from having good character. Law enforcement should take more time in hiring officers to be able to assess if they have common virtues of character as honesty, modesty, and empathy. After they determine these features, then the other police requirements for using discretion can be learned from on the job training. Another strategy for controlling discretion is for officers to be properly trained on how to use discretion. With the denial of this practice, discretion training is not part of the academy's program, but it should be incorporated into the procedures of when and where an officer can use discretion. "
Abstract This paper examines the controversy that has arisen over the use of police discretion and discusses several of the myths that have come to be connected with it. The paper also explains that, since full enforcement of all the laws is not possible, and since not every scenario is covered by the law, police discretion continues to be a necessity. The author concludes that a more open agency policy will foster a trustworthy relationship with the public which will enable police officers to use discretion without fear of reprisal, civil liability or corruption.
From the Paper "Police work encompasses what other professions do not, in that there are few uncontroversial areas within its realm. Professionalism, thus, comes at a cost to police officers because the public seems unwilling to trust them informally; instead, the public seems to want strict, formal accountability mechanisms in place. Simply put, society at times, desires loose enforcement, at other times, strict enforcement. "
Abstract This paper examines the subject of judicial discretion, specifically as it was applied by the United States Supreme Court in "Tome v. United States, 513 U.S. 150 (1995)". In that case, a majority of the court ruled that reports of prior consistent statements made by the victim of sexual assault were inadmissible unless they occurred prior to any incident drawing the victim's credibility into question. The paper contends that the dissent in Tome presented a more reasonable position, giving the trial judge more discretion in admitting evidence of this sort. To conclude, the paper notes that the states have not invariably followed Tome.
From the Paper "In Tome v. United States, 513 U.S. 150 (1995), the Supreme Court considered a case which turned on an issue of judicial discretion. Matthew Tome was charged and convicted of felony sexual abuse of a child, his daughter who was four years old when the abuse occurred. Tome had primary custody of the child, A.T., during the 1989-90 school year; Tome's wife had custody during the summer of 1990. In August, the mother contacted police, alleging that A.T. had been sexually abused. The prosecution alleged that A.T. had been abused during the school year; the defense contended that the story was concocted to prevent Tome from retaining custody. (The matter was tried in federal rather than state court because the abuse allegedly occurred on a Navajo reservation.) (513 U.S. at 152)."
Abstract This paper explains that the problem of discretionary police judgment, in some cases, clearly leads to abuses of police power, even among police who are academically educated and have attended structured training in discretionary decision-making. The author points out that any time a police department uses racial profiling as part of a process to decide whom to stop, that practice requires judgment and discretion on the part of the officers. The paper reveals that police officers routinely choose whom to stop for traffic violations and how to deal with them once they have been stopped because they do not have time to stop everyone who commits a traffic violation; but the departments should have clear priorities about traffic violations, so that officers can be free to deal with more serious issues, such as reckless driving and incidents of road rage.
Table of Contents
Public Substance Abuse
Different Neighborhoods Handled Differently
Racial Profiling
Traffic Violations
Public Soliciting
Public Drunkenness
Domestic Abuse
Public Disturbances
Police Chases
From the Paper "When William Bratton, former New York City Police Commissioner, was interviewed, he argued that different neighborhoods might want laws enforced differently. He argued that this was the basis for ?community policing.? He said that different communities want different kinds of crime made a priority. He used Harlem as an example, and said that in 1994 and 1995 they had to deal with drug dealing, prostitution, gaming, and other public crimes. He also said that after public street problems were under control the police were under pressure to make more arrests, which to Bratton didn?t make sense (Newfield & Jacobson, 2000). However, it's hard to imagine any neighborhood that would be willing to have those crimes, when taking place in full view of the public, ignored. If the police target drug dealing say, in Harlem, more than, say, the Upper East Side, charges of racism would inevitably follow. While there may be a place for police discretion, it should not be up to the police officer on the street to decide which public crimes get ignored and which get dealt with."
Abstract In this article the writer examines the decision of the police regarding the pursuit of a person who has committed a crime. The writer explains that many criminals believe that they can escape the police once they have committed a crime. The writer uses the example of a criminal who believes that he will be able to escape either by foot or by driving. The writer points out that this occurrence is followed by a police chase that may end in injuries or even fatality.
From the Paper "Many criminals have the idea that they can get away from the police once they have committed certain crimes. For example, many criminals believe that they can get away when driving a vehicle or running and once they realize that the police are on their tails, a police pursuit is apparent. The chase may risk fatal injuries between the criminal, police or innocent bystanders. In a 1997 National Highway Transportation Safety (NHTSA) report, "there were 255 innocent people killed across the country in police pursuits"."
Abstract This paper explains that racial profiling is any police-initiated action based on race, ethnicity or national origin; rather than being based on the behavior of an individual or on information that a particular individual is or has been engaged in criminal activity. The author points out that racial profiling is one of the most pressing civil right issues of our time because it extends beyond the direct victim to affect negatively all persons of color of all generations and income levels, undermines the legitimacy of the criminal justice system and hinders effective policing in communities, which need it the most. The paper suggests that the solution to the racial profiling controversy may lie in the ability to control the discretion of the police such as (1) stops must be initiated for a legitimate reason, (2) must be predicted upon an appropriate legal or policy standard, (3) must be perceived to be effective in the pursuit of a legitimate law enforcement need and (4) the officer's attitudes and behaviors must be perceived by the violator to be legitimate.
Table of Contents
Violates Civil Rights
Undermines Police Community Relations
Unsound Policing
Impact on our Community
Impact on the Law Enforcement Profession
Controlling the Discretion of the Police
Control Consent Searches
Deploy Policing Resources on the Basis of Actual not Perceived Demand
Manage the Leader's Influence and Message
Provide Proactive Training and Education
Use Technology to Document the Policing Process
Actively Seek an Avenue for Changing the Current Law
Pass Prohibitive Statutes that Provide Criminal Penalties
Make the Police More Accountable
From the Paper "Racial profiling is most commonly associated with driving while black or brown also known as DWB. This practice, however, is not limited to vehicle stops it also extends to other aspects of living in the minority community "walking while black; standing while black; shopping while black." Racial profiling states the cost associated with race related police abuses are significant and include psychological trauma, humiliation and degradation and a decline in the legitimacy of the criminal justice system. Police brutality lawsuits and institutional racism cost taxpayers ten millions of dollars."
Abstract Development of the roles of the English judiciary and the legislature. Includes observations of the impact of the Human Rights Act and subsequent loss of sovereignty to Strasbourg. Full dissection of the relationship between statute and the Common Law and the part that morality/justice should play in the law courts. Theoretical questions from legal theoreticians such as Dworkin and Hart discussed.
From the Paper "Answering this question involves discussing: what other forms of law (apart from statutory text) judges should refer to; which form of law takes precedence; how a judge should interpret a statute, especially if it is unclear or ambiguous; and what he is to do if he cannot operate within the bounds of existing statutory texts. These issues induce us to look at the use and scope of a judge's discretion. A consideration of the use of the word MUST is also needed. Must a judge operate in a certain way? Or are there merely guidelines as to how he should operate?"
Abstract This essay critically examines Ronald Dworkin's criticisms of Hart's positivism, in "Models of Rules 1", in order to determine the relative strength of Dworkin's critiques. The paper argues, with reference to the work of both men, on the issue of legal principles, Dworkin's criticism of Hart's positivism is strongest while, in contrast, Dworkin's criticism of the theory of discretion under Hart's positivism is notably weak.
From the Paper "Critiques of Positivism: Dworkin v. Hart Ronald Dworkin, in "Models of Rules 1," presents a range of criticisms of the philosophy of legal positivism as embodied in the work of H.L.A. Hart."
Abstract The paper explains that courts give the police discretion in who they stop during traffic stops, but statistics prove that more African-Americans are stopped than whites. The paper reveals that many African-Americans are frisked, their vehicles are taken apart and they either get a ticket or go to jail for some bogus reason. The paper points out the opinion that racial profiling is not a problem, but disagrees and argues that changes must be made to stop this racial profiling.
From the Paper "Imagine a young African American driving A Ford Explorer to an interview when he is pulled over by the Georgia State Patrol. The young man was driving five miles over the speed limit or less. The police officer asks for back up though he does not appear to have a valid reason for back up. The two officers take apart the Ford Explorer looking for drugs (Callahan and Anderson 2001). Would this same scene have happened with a white male? It is important to look at the definition of racial profiling, how the courts give police officers the discretion to stop African Americans and how the problem of racial profiling should be stopped."
Abstract The paper examines the article "Judging Judicial Discretion: Legal Factors and Racial Discrimination in Sentencing" where the authors attempt to determine whether judges in Maryland are racially discriminatory in their sentencing decisions. The paper studies their hypothesis that even in a state with voluntary sentencing guidelines, African-American offenders are being sentenced more harshly than whites. The paper looks at the trend the authors discovered regarding judges hiding behind legal factors to issue disparate sentences and agrees with the authors' conclusion that discrimination is happening in sentencing.
From the Paper "The authors first started by explaining previous research on racial discrimination in sentencing. The issue of warranted and unwarranted disparity was very important to understanding the different approaches to this topic. As discussed in our textbook, African Americans tend to have longer criminal histories and they are charged with more serious crimes. In the article it was explained that most researchers separate warranted disparity, such as a harsher sentence because of a long criminal history, and unwarranted disparity, which can only be explained by race or other extra-legal influences on the sentencing decision (Bushway & Piehl, 2001). The authors state, "there is little evidence of direct racial discrimination once these legal factors are included in the statistical models" (Bushway & Piehl, 2001, p. 734). However, the authors contend that by taking out the warranted cases the discrimination is actually masked because there is disparity in those cases. This is discussed further in their findings."
Abstract This paper presents a professional manual for employees of a specific administrative agency. It briefly looks at administrative law and the procedures the department should avoid to ensure that no legal problems arise. Specifically, the paper outlines the concepts of discretion, credibility (and how applicant credibility is to be determined), standards with regards to bias (that is to say, what will henceforth be expected of subordinate decision-makers) and the extent of duty that will now be expected from all employees.
From the Paper "Before leaving the issue of credibility, I wish also to point out the manner in which concerns about an applicant's credibility are to be spelled out. Henceforth, if there is a suspicion of deceit, precise instances of deception and contradiction must be noted in the final judgment. As well, particulars and context must be provided whenever a claimant cannot answer a question; in other words, if the client was unable to provide certain information because of extenuating circumstances, that needs to be highlighted. Finally, all decisions rendered by an adjudicator must be carefully examined by that adjudicator to ensure that logical fallacies, inconsistencies and contradictions are not present in the text of the decision - and that there is a complete apprehension of all the facts of the case by the adjudicator. For a good example of precisely the sort of thorough, post-mortem examination of their decisions that I want my adjudicators to undertake (especially with regards to decisions about the credibility of an applicant), please see the court decision in Hilo v. Canada (1991)."
An analysis of Celesta Albonetti's 1986 study, "Criminality, Prosecutorial Screening, and Uncertainty: Toward a Theory of Discretionary Decision Making in Felony Case Processings".
Abstract In this paper, the author summarizes and analyzes Celesta Albonetti's 1986 study on the influences of prosecuting attorneys on pursuing felony persecutions after grand jury indictments, entitled "Criminality, Prosecutorial Screening, and Uncertainty: Toward a Theory of Discretionary Decision Making in Felony Case Processings". The paper then goes on to critique the findings of Albonetti's paper, one of which states that discretion is motivated by the professional and career interests of the attorney. The author concludes that although the study may need more current data to reinforce its conclusions, its hypothesis remains to be a relevant concern in criminal justice systems because it suggests a threat to the equitable application of the law.
Outline:
Introduction
Findings and Conclusions
Critique
From the Paper "Celesta Albonetti (1986) studied the factors that influence prosecuting attorneys to pursue felony prosecution after grand jury indictments. The study was developed from several studies investigating the exercise of discretion in prosecutorial decision making. In addition there is also an interest in the mechanisms of uncertainty avoidance and in the efforts to establish standards of rationality in decision making. Under the perspectives of the study, from the discretion practiced on individual cases, insights to risk evaluation and rationality can be derived because they establish a pattern or routine that is used to determine the outcome of cases. Thus, by studying discretion patterns in determining the value of pursuing felony prosecutions, Albonetti suggests that the pattern of processing can also be established."
Tags: prosecution indictments motivations law criminal, justice
