Brittany Harnicher

CJ- Cupello
Term Paper
26 July 2014
Should the Police Use Discretion?
Discretion is defined as the poer !i"en to a police officer# or criminal $ustice professional# to
ma%e a decision re!ardin! particular cases usin! their on $ud!ement& 'ather than usin! formal las#
they use their e(perience from trainin! or from pre"ious incidents to determine hether to cite or arrest
someone# or to let them off ith a arnin!& Discretion is a dou)le-ed!ed sord )ecause of the
pro)lems it causes and the resolutions it )rin!s& *or instance# there are many times hen a person
encounters a situation that seems entirely ne and they are left to determine hat to ma%e of it& This
can happen hen la enforcement needs to ma%e a decision# )ut mi!ht not ha"e anythin! to relate the
incident to# such as a common la or procedure they follo# so they mi!ht use their personal
$ud!ement to ma%e a decision on the outcome of the matter# hich is )y definition discretion& There are
some ne!ati"e conse+uences that the e(ercise of discretion )rin!s as ell as some )enefits that e as a
society and the criminal $ustice system share )ecause officers ha"e the ri!ht to ma%e personal
decisions&
,a enforcement can face serious issues hen their policies are not up-to-date or -in the
)oo%s. and thats hen an officer has to ma%e an official $ud!ement )ecause there is not a set solution
that he/she should use& There can )e so many options in certain situations here an officer has to
determine hich ill )e the )est resolution in re!ard to the situation& 0ot only that# )ut one officer
mi!ht interpret a la differently than another officer ould# 12oldstein# pa!e 1034& Hoe"er# officers
-cuttin! corners send improper messa!es to citi5ens a)out ho pro)lems should )e sol"ed#. 16ellin!#
pa!e 174& 8 )elie"e this to )e true )ecause if certain "iolations normally lead to you recei"in! a arnin!
due to an officer usin! their on $ud!ement# then people mi!ht )e!in to i!nore the la that is
repeatedly )ein! )ro%en& 2eor!e 6ellin!# author of -9Broken Windows' and Police Discretion#. states
that police departments face serious liti!ations# hich can )e a lasuit or other resort to court process
that )rin!s to +uestion a particular le!al matter& :hen a department faces liti!ation# they can $eopardi5e
current and future efforts to address disputes that are thron their ay 1pa!e 174& 8 don9t %no if 8
necessarily )elie"e in this statement )ecause hen 8 personally face an issue# 8 learn from my mista%e
and 8 come )ac% stron!er& Hoe"er# if a person has already encountered a similar issue then they ould
%no ho to sol"e it or at least ha"e an idea of hat to e(pect& Therefore# it mi!ht hurt a department
facin! a lasuit# )ut 8 don9t understand ho it ould affect their a)ility to ar!ue any current or future
pro)lems& This mi!ht )e somethin! that 8 could do additional research on thou!h&
0ire$ ;e%hon )elie"es in these conse+uences that la enforcement faces hen discretion is
utili5ed& He said# -police departments should also )e re+uired to demonstrate that a !i"en arrest is part
of an e!alitarian distri)ution of arrests#. 1Pa!e 11<24& =!alitarian means to )elie"e in the principle that
e"eryone is e+ual& 8n other ords# ;e%hon )elie"es that a police officer should not ha"e the ri!ht to
decide hether or not a person should recei"e punishment for any criminal acts to hich they ha"e
committed& ;ome citi5ens )elie"e this as ell# thin%in! that this can cause a predicament )ecause the
officer ill rite tic%ets for certain people hile lettin! the others !o& This can )e %non as fa"oritism#
hich as su!!ested )y my father hen as%ed a)out his thou!hts on police discretion& Hoe"er# there
is a hi!hly unli%ely chance that the officer mi!ht %no the person they are pullin! o"er dependin! on
ho "ast the city is& Hoe"er# ho is to say that a person doesn9t deser"e a little slac% once in a hile>
:hat if there ere to )e a condition in hich the officer felt as thou!h no)ody as )ein! harmed )y
lettin! the offender off ith a arnin!>
8 )elie"e that Discretion mi!ht raise some ethical issues )ecause some may feel animosity due
to the fact that some people recei"e citations hereas others only !et a arnin!& This mi!ht cause a
pro)lem )ecause a cop# may unintentionally or intentionally# cite specific types of people hich can )e
associated ith criminal or racial profilin!& ?nother issue that is raised is hen an underco"er police
officer# or other criminal $ustice professional is pulled o"er# )ut are not tic%eted )ecause the on-duty
officer decides to !i"e them a professional courtesy )y lettin! them !o ith or ithout a documented
arnin!& This can )e "ieed as unfair to the rest of us# ho are not a part of la enforcement&
Hoe"er# in my opinion# many people use professional courtesy for coor%ers or those ho are in the
same field as them and althou!h it mi!ht seem unfair# a lot of people recei"e arnin!s# not $ust cops or
other off-duty professionals&
Ta%in! this research into consideration# 8 )elie"e that la enforcement should )e a)le to
e(ercise discretion& The reason 8 say this# is )ecause in my last paper 8 rote a)out prison
o"ercrodin!# and ithout discretion there mi!ht )e more 9criminals9 )ein! incarcerated for minor
offenses rather then )ein! su)$ect to fines or other forms of punishment& 8 also thin% that there are some
situations in hich there on9t )e anythin! to compare to and you ould ha"e to decide on the
outcome )ased on the situation# hich is $ust common sense& There also mi!ht )e instances here a
person mi!ht recei"e a arnin!# for e(ample a cop mi!ht !i"e them a )rea% )ased on their dri"in!
record# the reason for the stop# or if the person has a reasona)le e(cuse for the "iolation of hich they
ha"e committed&
8 also )elie"e that discretion helps the practice of la enforcement and pu)lic safety )ecause
cops can decide on situations and determine if they are of importance& 8f they aren9t# the police officer
could mo"e onto different issues that are more necessarily important then ponder on the less strin!ent
situation& ?s mentioned earlier# discretion can help alle"iate the amount of prisoners or inmates in $ails
and prisons& This helps to assist the criminal $ustice system in functionin! more effecti"ely )ecause less
people are )ein! punished for petty crimes so that other people in the system# includin! cops# $ud!es#
and corrections can focus on more demandin! issues& :ith all this said# discretion should not )e
eliminated# instead it should )e put to use for certain instances and situations# as it is already )ein!
practiced&
:hen researchin! this topic it as hard to find primary resources# )ut 8 as a)le to locate some
from the ;alt ,a%e County ,i)rary& @ne as called -9Broken Windows' and Police Discretion#. ritten
)y 2eor!e 6ellin! 11AAA4# another as# -'edistri)uti"e Policin!#. ritten )y 0ire$ ;e%hon 120114# and
the last as# -Cate!ori5in! and ;tructurin! Discretion#. )y Herman 2oldstein 11AA<4& ?ll ere relia)le
sources of information and came from academic# or scholarly# $ournals re!ardin! police discretion&
*rom education and e(perience# 8 %no that 8 can trust this information )ased on the credi)ility of the
authors9 %noled!e and %noin! that to )e in a scholarly $ournal# the te(t must )e peer-re"ieed )y
others in that particular area of study& This is the )est form of information hen tryin! to research
hich is opposite of periodicals or media sources& Journalists# or anyone for that matter# can ma%e up
information and share it on the internet&
8 )elie"e that the conclusion 8 came to ma%es sense )ased on the research that 8 ha"e done and
the information that 8 already %ne re!ardin! discretion of police officers& The research definitely
supported my assumptions& Hoe"er# 8 )elie"e that there could )e more research done on ho
liti!ation can hurt a department# )esides fines# as ell as the other ne!ati"e effects that police discretion
has on the department and the community& @fficers ha"in! the ri!ht to use discretion# as 8 ha"e
mentioned# helps to sol"e many pro)lems# includin! ones that the criminal $ustice system mi!ht not
ha"e encountered )efore or relie"in! those ho ha"e committed minor offenses from ha"in! a criminal
record& 8 thin% it %eeps the communities )alanced&
Resources:
6ellin!# 2eor!e ,& BThe Disco"ery of Discretion and 8ts Ceanin!&B "Broken Windows" and
Police Discretion& :ashin!ton# D&C&D E; Department of Justice# 1AAA& 17& Print&
;e%hon# 0& ;& 120114& '=D8;T'8BET8F= P@,8C802& Journal Of Criminal Law &
Criminology# 11144# 11<1-1226&
2oldstein# Herman& 1A<<& Cate!ori5in! and structurin! discretion& Chapter 7 1pps& AG-1G04 in
Policin! a *ree ;ociety& Cam)rid!e# C?D Ballin!er Pu)lishin! Company&