Discretion In Criminal Justice PDF

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Discretion In Criminal Justice...

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Discretion In Criminal Justice The application of discretion is evident throughout the criminal justice field. Discretion, in its simplest terms, is when one makes an informed choice between more than two options. Discretion is more formally defined as “the authority to make a decision between two or more choices” (Pollock, 2014, p. 2). The act of discretion, initiates with legislators; that creates and defines laws, and discretion extends to all areas of the criminal justice field to include prosecutors, judges, correctional officers, and to police officers. By empowering law enforcement officers with the authority of discretion, there is room for abuse, especially when the power is not respected. When the power of discretion is not respected or abused there is an opportunity to cross the ethical boundary. One can remain within the ethical boundaries of discretion by merely making a moral and ethical decision. Discretion plays a significant role for the law enforcement officer. Discretion gives the officer choices that he or she may explore and allows the officer to apply the best particle decision for a particular encounter. Without discretion, in my opinion, I believe that police

officers would never have the time to answer calls for service or conduct any other job function with the exception of conducting traffic stops. If an officer had to enforce all traffic laws, all of the time, the officer would never make it far from the station. At the start their shift and for the entire shift they would commit to only being able to enforce traffic violations. “Discretion in enforcement and prosecution of crime is inevitable; it can be restrained at the margin, but it cannot be eliminated” (Thomas III, 2005, p. 4). The use of discretion in the law enforcement field has become quite debatable. How much discretion should an officer have? Should an officer be permitted to use more discretion the longer his/her tenure? Should officers be restricted to only using discretion in certain types of criminal activity? Should law enforcement officer be permitted to use discretion? These are just a few questions that are raised when officer discretion is discussed; even within the law enforcement community. In my opinion, discretion is a vital component of the criminal justice field, especially the law enforcement field. As one explores and researches discretion, one can conclude that there are two major forms of discretion, good discretion and bad discretion. An example of good discretion may be an officer who does not stop a speeded

unless they are over by 14 miles per hour; however, will stop a speed at 9 miles an hour over the speed limit in a school zone. An example of bad discretion may be permitting one to speed up to 14 miles an hour over the speed limit is they are green; but not if they are red. Opponents to the use of law enforcement discretion understand that there are some benefits, but outline more problems than benefits with officer discretion. One of the primary concerns related to officer discretion is consistency; one officer may permit a particular behavior and one officer may not. Inconsistency in application of the law leaves the community with a sense that the law is not enforced equally among the community. Each officer who encounters a violation of a law approaches the situation with different background, and each officer may react in a different way. This action, which could be different for each officer, leaves the public with a sense of distrust and issues the equitability of discretion. Once the community distrusts and questions the equitability of discretion; there is room for unnecessary confrontations between the two parties ("Police Discretion," n.d). One area where discretion can be considered problematic is when discretion is used in an uncontrolled manner. “We can find particular wrong in uncontrolled use of discretion in the area of violation of

individual rights, particularly those requiring due process of law and equal protection of the law, protection from unreasonable searches and seizures, and protection against compelled self-incrimination” ("Police Discretion," n.d, para. 13). Additionally, problematic use of discretion may be seen in the use of force. Police officers are given an extreme amount of discretion as it relates to the use of force. Officers are taught to use a reasonable amount of force to mitigate the threat, and to escalate and de-escalate the use of force as the situation changes; however, all of this has to be accomplished with a split second decision. When this discretion is asserted inappropriately “the community itself is harmed and the relationship between the police and community along with it” ("Police Discretion," n.d, para. 16). Supports to the use of law enforcement discretion cite many reasons and needs for officers to use discretion. These supports do admit that there are pros and cons; however, feel that the pros outweigh the con when it relates to officer discretion. Officer discretion is a vital component in the decision-making process for an officer. Factors that are considered acceptable when an officer is using discretion range from the nature of the offense; that may have been harmed; and the amount of supporting evidence. All critics, supporters and opponents,

agree that the use of discretion should never include racism, sexism, and social class. There are many contributing factors that have been considered prior to allowing officers to use discretion. Police officers work in rapidly changing environments that are often unpredictable. Many officers work alone and in environments with restricted or low visibility (night or darkness). The decisions made are often made must be made in a split second and do not allow time to reference prior court decisions or research. The nature of the law “the law is such that, in many cases, officers discretion extends to interpreting the meaning of the statutory text” ("Police Discretion," n.d, para. 7). For an officer, this becomes nearly impossible to remain current on each interpretation of each and every law. An additional support for officer discretion stems from a financial avenue; if police officers were not permitted to use discretion, the criminal justice system as a whole would not be able to support the number of violators. The jails, courts, and prisons would not be able to keep up with the workload. Law enforcement discretion has the opportunity to cross the ethical boundary. The following case provides examples of officer and prosecutor discretion and recently happened to a newer investigator

assigned to my office. This case will provide insight on the use of discretion, the application of discretion, and will question if the use of this investigator’s discretion crossed the ethical boundary of discretion. Recently, the police department responded to a past arson behind a business. The officer documented in his report that the owner of the business had the crime on video and positively identified the suspect as “Jane ”. The officer also documented that the person seen on the video was a “white female.” Additionally, the officer documented that the business owner reported that this female was terminated 8 hours to the fire occurring. The case was then assigned to the Fire Marshal’s Office and assigned to an investigator. The investigator assigned to the case responded to the business to conduct a follow-up investigation. During the follow-up investigation, the scene was processed; the video was reviewed, and a copy was secured for evidence; a victim statement was obtained from the property owner.. During the review, of the video the business owner identified the subject on the video as Jane due to her hair being in a ponytail and the clothing she was wearing. It was determined there was no damage to any building or item in the area of the fire. The fire

consisted of a cardboard box that was lit of fire next to a dumpster on grass; carried the box (on fire) over the grass to the parking lot; and then left to burn in the parking lot. The victim reported that; Jane was terminated 8 hours to the fire occurring and was removed from the property 1 hour to the fire for causing a disturbance. The business owner added that Jane was using profanity and yelled at him during the disturbance; additionally Jane yelled “you will be sorry.” The investigator in this case was faced with several options to pursue with this case and relied upon his discretion when making his decisions. In this case the fire area of discretion was which charge to pursue. Options before him were whether not to charge, charge a misdemeanor (VA Code § 18.2-87.Setting woods, etc., on fire intentionally whereby another is damaged or jeopardized) charge a felony (VA Code §18.2-86 Setting fire to woods, fences, grass, etc). He reviewed the elements to each crime and elected to pursue the felony opposed to the misdemeanor due to the totality of the circumstances. At this point in the investigation, the investigator determined that Jane was a threat to society; he was concerned for society due to the escalating behavior.

An arrest warrant was issued for Jane for the felony. Several attempts to locate Jane were unsuccessful and Jane turned herself in a day later. An interview was conducted with Jane, and she denied any involvement with the fire. She reported on the night she was terminated she was wearing a gray hoodie and had her hair in a ponytail. Jane was released on a signature bond and was scheduled for an arraignment the following day. The following day the investigator was contacted by the business owner who reported he had made a mistake in identifying Jane. The investigator met with the business owner; the business owner reported that “John ”, a cook, reported it was him who lit the fire, he could not sit around a let an innocent person be tried for something they did not do. The cook reported where and how he lit the fire; he reported he did not have a reason for lighting the fire; and added he was wearing a white hoodie and a long skull cap. The investigator interviewed John and confirmed the story. The investigator additionally re-interviewed the business owner and reviewed the video with the owner. The owner apologized for identifying the incorrect individual. At this point in the investigation; this is where this case could have crossed an ethical boundary as it relates to discretion. The

investigator could not have reported this information and allowed the incorrect individual stand trial for a crime they did not commit. This would not only violate the fundamental understanding of morals and ethics, the principles of right and wrong and determining good from evil (Pollock, 2014), but the investigator would have committed misconduct more formally known as nonfeasance misconduct. Nonfeasance misconduct is “acts of omission” (Pollock, 2014, p. 380), and in this case would have been not reporting the newly developed information. The investigator elected to take full responsibility for his actions and the use of his discretion. He immediately contacted the Commonwealth Attorney’s Office and informed the prosecutor of the situation. The prosecutor was able to nol-process the charge at the arraignment, and Jane was released from her signature bond. Both the prosecutor and the investigator were now faced with a decision of which charge if any to move forward on with John. The prosecutor and the investigator reviewed the elements and the parameters of the two charges and asserted their discretion to charge John with the misdemeanor. One may question how one individual could be charged with a felony and one a misdemeanor for the same act. The decision

was made based upon the totality of the circumstances and their discretion. In the case outlined above, there were several areas where the investigator asserted his discretion. The investigator had the opportunity to cross the ethical boundary throughout the case be remained professional. He used his discretion and remained within the ethical boundaries as it relates to discretion. Although the same type of crime occurred, the outcome showed how the use of discretion can play a part in determining which direction an investigator may go. If this investigator was not permitted to assert discretion; the outcome in this situation could have been entirely different. The business owner would have had to be charged for a false police report for identifying the incorrect individual. In this case the investigator used his direction to not charge the business owner and understood that he simply made a mistake. Some would say that Jane was overcharged for a crime that she did not commit. The investigator had to go with what he had he used his discretion to determine the crime to charge and supported the charge with probable cause. The ethical boundary that had the potential to be crossed in this case was the discretion to report the newly developed information. This investigator did not cross that

boundary; he reported the information even though there could have been repercussions for his actions. The use of discretion in the law enforcement field is a vital part to police work. The entire criminal justice system benefits from officer discretion and would be able to survive if officers were not permitted to use discretion. “Discretion in enforcement and prosecution of crime is inevitable; it can be restrained at the margin, but it cannot be eliminated” (Thomas III, 2005, p. 4). In my opinion discretion crosses the ethical boundary set forth when the officer asserting discretion does not follow the simple understanding of ethics and morals while he or she applies discretion; the principles of right and wrong and determining good from evil (Pollock, 2014). The majority of law enforcement officers uses discretion appropriately and do not cross the ethical boundary. For the minority that abuse discretion; they cause an unwanted reputation for other law enforcement officers, and the entire criminal justice field....