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What is police discretion and why is it an important issue in policing? (30th November 1PM) 1500 words. Word count: 1405 This essay will discuss what police discretion is and why it is an important issue in policing. It will further discuss issues with police discretion. It will do this by defining discretion in relation to the police, discussing different approaches to explain it and discussing the different types of discretion. It will also discuss potential issues relating to the use of police discretion, and how these may be mitigated by police accountability. Police discretion refers to the power police officers have to use their own judgement to decide a course of action to take in a situation; also including the decision to take no action (McLaughlin and Muncie, 2006). Police discretion is inevitable and inescapable due to the nature of policing; officers must use discretion to prioritise and decide what actions to take. In his 1981 report, Lord Scarman described discretion as the heart of policing and stated that successful policing depends on discretion, and also that it is the policeman’s “daily task” (Scarman, 1981). Dworkin and Hart describes discretion as “the hole in the doughnut”, meaning discretion is the void in policies and procedures. Police can use discretion to simplify their job and identify priorities, as they have to implement broad and often contradictory laws. Police discretion is used at all levels within the force, from the highest levels of, for example, deciding what areas of crime to target, to the mid-levels involving proactive decisions to fight crime in certain jurisdictional areas, to the lower levels of police on the streets in their daily routine encounters with offenders. Police on patrol is where discretion is used the most due to the high levels of minor offences committed by motorists etc. Not all these minor offences require arrest, some may only be judged to require a warning. There are different approaches to explaining discretion; individual, cultural and structural. The individual approach focuses on the police personality being that of an authoritarian personality, suggesting that police are drawn to discretion as it gives them more power. It is a negative view in that it suggests action orientated work attracts particular recruits. The cultural approach, however, focuses on beyond the individual and instead on the nature of police work. In this view, discretion becomes a pattern of accepted behaviour which is engrained in officers, allowing them to explain decisions and working patterns. Finally, the structural approach to explain discretion focuses on the fact that laws and regulations that officers have to follow may not be in line with what they agree with; they do not have choice, they must uphold and enforce the laws of the state. However this could lead to the possibility of resentment and links to Reiner’s idea of the police officer as ‘moral street sweepers’ (Reiner, 2004:742). There are also different types of police discretion; supervised and unsupervised. Supervised, also referred to as reviewable, places regulatory limits on police power by ensuring the officer can justify the course of action they decided to take. For example, an officer exclaiming why their chose to not enforce the law in a specific case. Unsupervised police discretion, also referred to as non-reviewable, refers to action that cannot be proven to have taken place, for example when an officer is alone in a house with a victim. This is

typical of street-level policing as police are given more discretionary powers. It is only reviewable if the officer decides to act. Seri (2005) describes police discretion as an unwritten law. Due to the fact that police report to incidents that are often unpredictable, they need a certain level of discretion. Seri describes discretion as judgement in that officers must decide themselves on a course of action that they may not be used to when responding to something routine. Discretion as choice allows officers to exercise autonomy in their decision making. Discretion as a form of discernment involves officers making good decisions by habit and judging situations well using wisdom and foresight. Describing discretion as liberty allows the officer to act as a free agent and equal. Finally, describing discretion as a form of license suggests that discretion should be a privilege to be able to decide on a course of action, irrespective of what the law states. Also it helps develop accountability for the decisions they make. Neyroud and Beckley (2001) highlight 4 perspectives on discretion. The first being rule tightening and accountability mechanisms. Another being the need to temper law with humanity i.e. doing what the officer themselves thinks is right in a certain situation despite what the law says on the books. The third being a process of discrimination. And finally the thought of a police officer instead as a professional clinician. Linking also to Mastrofski who stated that discretionary powers should not be curtailed, instead be ‘celebrated as essential to the practice of a profession, just as a physician is expected to exercise discretion in diagnosing and treating patients’ Mastrofski (1998: 164). Discretion allows officers to treat people humanely and potentially give them a second chance by giving a warning instead of arresting. This may improve the public’s perception of the police. If police did arrest everyone who committed a crime, the system would be overwhelmed with cases, and the police may be seen as being unfair for arresting someone for a relatively minor offence. It also takes into account that the police are often faced with unique situations, so discretion allows for an officer to judge depending on the situation. Not only is discretion seen as an important issue in policing, but it is also a source of issues. Too much discretion can promote discrimination, unpredictability and injustice. One issue is the problem of police using their discretionary power to discriminate against certain people or groups through under or over policing (McLaughlin and Muncie, 2006). Discrimination is found throughout the nature of police work, whether accidentally or purposefully. For example, in the case of Eric Garner police used discretion to decide that his crime (selling loose cigarettes) warranted arrest, leading to his death. As Brogden etc al (1988) stated, police must discriminate between ‘friend’ and ‘foe’. Regulation of discretion is important to ensure the establishment of consistent criminal justice policies and the equal treatment of everyone in society (McLaughlin and Muncie, 2006). If police discretion is abused it can lead to soft law enforcement, which may then lead to the public being motivated to commit offences if they will not be punished adequately. Due to judicial judgements and complaints about police misconduct, miscarriages of justice and civil actions, police forces have focused more on the structuring of the discretionary powers of officers. This has resulted in training programmes to teach officers to use their powers appropriately, the creation of ethical principles and guidelines, codes of practice, strategies to raise the visibility of work practices, and the establishment of review

bodies (McLaughlin and Muncie, 2006). These strategies are based on the premise that police discretion is an inescapable part of police work (McLaughlin and Muncie, 2006). To mitigate certain issues that come along with police discretion, there is a system of police accountability. Accountability is defined by Wakefield and Fleming as requiring ‘police officers and the institutions to which they belong to explain, justify and answer for their conduct’ (Wakefield and Fleming, 2009:1). It involves holding individual officers or agencies responsible for their actions. Holding the police accountable is important to maintain the public’s faith in the system and allow them to feel safe around the police and feel that ‘justice’ has been carried out. To prevent the misuse of discretion, a code of ethics was established to serve as a guideline for officers; it provides a flexible set of codes to guide the police depending on the situation (Schafer, 2002). A way to enforce this is through the use of police body cameras. They allow for police actions to be proven, and if accountability is needed, they provide a useful tool. After the fatal shooting of numerous unarmed people, President Barack Obama suggested the increasing of funding for body cameras throughout forces in the United States. To conclude, this essay discussed police discretion by highlighting what it is defined as, discussing different approaches and types of discretion, as well as the potential problems with it, including discrimination or things that may occur if discretion is abused. It further discussed how police accountability mitigates these problems. Police discretion is central to policing, despite certain issues.

Bibliography McLaughlin, E. and Muncie, J. (2006). The Sage Dictionary of Criminology. 2nd ed. London: SAGE. Wakefield, A. and Fleming, J. (2009). The Sage dictionary of policing. Los Angeles: SAGE. Scarman, L. (1981), The Brixton Disorders: 10-12 April 1981, London: H.M.S.O. Schafer, J.M. (2002). "Making Ethical Decisions". FBI Law Enforcement Bulletin. Seri, G. (2005). Policing and democracy. [Gainesville, Fla.]: University of Florida. Neyroud, P. and Beckley, A. (2001). Policing, ethics and human rights. [Cullompton, Devon]: Willan Publishing....