Police DiscretionDiscretion as Decision-making

1. By a criminal justice official

2. Official action (formal or informal)

3. Based on individual’s judgment about the best or proper course of action

Discretion is not limited except by law and administrative policy

Does discretion Increase/Decrease as you move up the police bureaucracy/chain of command?

Police Discretion• When police see something unusual, two discrete

decisions:• 1) Whether to intervene?• 2) How to intervene?• Start to finish, in a routine traffic stop: 770 different

combinations of actions (Bayley & Bittner, 1989)

Discretion• Another definition – more useful:

The decision not to invoke legal sanctions when circumstances are favorable to them. e.g., legal basis for an arrest is present.

• Examples — teens drinking in a park; traffic stops; arrest decisions; use of force

Aspects of Police Discretion• Street-level Bureaucrats (Lipsky 1968)

– Officers exercise most discretion– Officers as gatekeepers– Officer behavior determines how the law is experienced

• Positive Uses of Discretion– Proper exercise of professional judgment– Effective use of scarce resources (efficiency – gatekeeping is needed)– Individualized justice?

• Potential for Abuse of Discretionary Power– Discrimination – decisions (not) to invoke law– Denial of due process– Police-community relations problems– Poor management of personnel and planning/policy

Points of DiscretionNot limited to arrest; throughout the police repertoire of

legitimate action & department rank– Patrol discretion

• Pursuit• Making stops, questioning, frisking• Arrest

– Order Maintenance/Peacekeeping• Domestic disputes (mediation vs. arrest)• Mentally Ill• Drinking• Juveniles

– Investigation• Seeking a search or arrest warrant• Ending an investigation

– Organizational Policy Decisions• Defining law enforcement priorities: traffic; crackdown targets;

tolerance for other kinds of activity

Sources of Discretion: where does it come from?

• The Nature of the Criminal Law– Substantive criminal law is vague– Conflict b/t law and public opinion about wrongfulness of

behavior (traffic, drinking, etc.)– Appropriateness of legal response to social problems

• Work Environment of Police– Patrol is low visibility; Little direct supervision– Results in significant Autonomy– Police are concerned first & foremost with establishing

respect• Limited Resources

– “Full enforcement” is not realistic or efficient (e.g., length of time committed to an arrest)

– Discretion is efficient (officers manage time, resources, energy)

J. Goldstein on Discretion• Total Enforcement

– Police respond to every crime. Only a theoretical possibility. – Impossible due to constitutional restrictions (privacy protections): Big

Brother imagery. This is known as the area of no enforcement

• Full Enforcement– The investigation of every disturbing event the police become aware of and

suspect is a legal violation– Determining that a law has been broken, an attempt to discover the

offender(s)– Presenting all the information to the DA to determine appropriate action (plea,

trial, dismiss)– Full enforcement is the expectation of the criminal law (and arguably the

public’s view of how police should do their job)– Realistic expectation for police? Why?

• Actual Enforcement– Determined by actions not to invoke the law

J. Goldstein on Discretion in the CJS

Discretion & Police BehaviorFollowing up on Goldstein’s distinction b/tFull enforcement & Actual enforcement

Donald Black:

How often do police make an arrest with complainant and suspect present?

• Felony situations - 58% • Misdemeanor situations - 44%

Bottom Line: Discretion NOT to invoke the law is common in policing

Discretion & Police BehaviorBrooks (D&A Ch. 5)

Factors related to discretion:

1. Organizational perspective & policy guidelines (including police role

2. Community factors (community demand)

3. Situational elements (legal and extra-legal)

4. Officer variables (attributes, attitudes, etc.)

Discretion & Police BehaviorFactors related to discretion:

Organizational variables

Powerful influence on discretion.

Discretion is most effectively controlled through policy

–Bureaucratic nature: Purpose of procedure—to guide and direct behavior.–Bureaucratic principles can backfire, contributing to secrecy. Over-bureaucratic departments: too much punishment alienates officers.–Informal organizational culture may be more important than policy

Discretion & Police BehaviorInformal Organizational Factors:

Police Subculture•Moral grounds of decision making drawn from subcultural sources•Emerges from daily practices (routines)

–Social control of territory•Masculinity & Control

–Uncertainty: exerting control in “risky” encounters–Marked by strong internal solidarity: Loyalty

•Code of silence•Master status

–Loose Coupling: Ends justify the means•Bad guy focus – policy & law may get in the way – moral authority

Community factors• Community or Ecological Demand

– How is discretion exercised in high crime areas?– Klinger (1997) argues increased tolerance

thresholds in high-crime (urban) beats

• Neighborhood variables• Minority neighborhoods:

– more reports– more arrests – more requests for police intervention

• Urban vs. suburban vs rural neighborhoods• Low income neighborhoods

– More arrests

Discretion & Police BehaviorFactors related to discretion:

Situational variables take 2 broad forms:

1. Legal Factors– Behavior constitutes a legal violation?– Seriousness of the violation– Availability of evidence

2. Extra-legal factors- Factors beyond the legal circumstances of the

situation: Suspect, Victim characteristics

Discretion & Police BehaviorFactors related to discretion:

Situational variables. •Mobilization of the law. Proactive (by police) encounters more antagonistic. Less likely to be supported by citizens. Police are consequently likely to treat citizens more harshly. Potential for escalation.•Demeanor and attitude. Disrespectful people more likely to be arrested. (Black - B&B p. 184)•Attitude of the complainant. Arrests more likely when the complainant wants an arrest. •Race. Police more likely to arrest or treat minorities harshly. May be due to (1) minorities more likely to resist authority, but (2) such an attitude may stem from a history of mistreatment. •Gender.

Police BehaviorFactors related to discretion:

Situational variables. •Victim-complainant relationship.

If close, police less likely to arrest (cf. rape). And police more likely to take action if complainant wants them to. •Type of offense.

Police more likely to arrest in felony situations. Common- sense arrest should be based on probable cause, not seriousness. Domestic Assaults•Location.

Stronger response in public settings.•Presence of others.

Presence of other officers—their expectations. Two-person units: more likely to treat suspects harshly. Wolfpacking at traffic stops.

Police BehaviorFactors related to discretion:

Individual Officer variables.•Education, age and experience. Younger officers tend to be more punitive and aggressive. Quality of older officer’s work higher.•Gender. Some evidence suggests that female police officers are less aggressive. Women less likely to use force. •Career orientation and family situation. Walsh (1986) career-oriented officers more aggressive, increase chance of being promoted. •Race – some evidence Black officers more likely to arrest

Explanations of Police Behavior and the use of Discretion

•UNIVERSALISTIC Perspectives: look at how officers are similar:

–Sociological perspective: emphasizes the social context in which officers are hired, trained, and police citizen interactions.–Psychological perspective. Concerned with the “police personality.”–Organizational perspective: departmental factors play an important role in police behavior.

–Police culture: police work characterized by its own occupational beliefs and values. –Subculture: police work has values imported from outside

society.

Discretion & Police BehaviorPredispositional theory (Psychological approach):

Police behavior is determined primarily by characteristics, values, and attitudes of the individual prior to job.

Focus becomes the police personality

DA14 (Breeding Deviant Conformity):

Authoritarian Personality values•Conformity (in values, appearance, conduct)•Rigid – black/white view of the world•Support status quo

Discretion & Police BehaviorPredispositional theory (Psychological approach):Police behavior is determined primarily by characteristics, values, and attitudes of the individual prior to job.

•Rokeach, Miller and Snyder (1971): police hold similar political values and share values of authority with professional fulfillment. •Caldero (1997). Extension of R,M&S Central principles:

–Police have distinctively different values from others–Values are similar to the groups from which they are recruited–Largely unaffected by occupational socialization; Police socialization has little impact on values–Values are stable over time–Regardless of race-ethnicity, values are similar–Education has little impact on values

•Crank and Caldero (1999) Screening processes insured that officers held similar values regardless of background.

Discretion & Police BehaviorSocialization Theory: Individuals (police officers) are socialized as a result of their occupational experiences. •Two kinds of socialization

–Formal socialization: results from the selection process, training, and learning about policies and procedures–Informal socialization: new recruits interact with older, established officers

•Informal socialization may contradict formal socialization “forget everything you learned in training” •Thin Blue Line, Wall of Silence – reflects high degree of integration within the rank & file police subculture

–Values loyalty and solidarity above other values –Rule of law may conflict with Loyalty to Colleagues

DA14 Breeding Deviant Conformity

• Sociological Paradigm – Emphasizes professionalism

• Anthropological Paradigm– Emphasizes subculture

• Police WORLDVIEW– Cognitive filter used to process info re: people,

events, places, ideology– Emphasis on military, violence, danger– Symbolic Assailants

DA14 Breeding Deviant Conformity

• Spirit of Police Subculture– Ethos of Bravery– Ethos of Autonomy– Ethos of Secrecy

• Themes of Police Culture– Isolation– Solidarity

Police DevianceBehavior that does not conform to the standards of norms or expectations.

–Ethical standards: principles of appropriate conduct officers carry internally. An expression of personal values.–Organizational standards: formal and informal; from rules and regulations, and from peer expectations.–Legal standards: The laws officers are sworn to uphold, due process establishes means officers can use.

–These can conflict with each other—e.g., formal dept. standards may conflict with peer expectations.

–Barker and Carter (1994)Deviance is a “generic description of police officers activities which are inconsistent with the officer’s legal authority, organizational authority, and standards of ethical conduct.”

Varieties of Police Wrongdoing:•Deviance -- behavior inconsistent with norms, values, or ethics •Corruption -- forbidden acts involving misuse of office for gain •Misconduct -- wrongdoing/violations of departmental procedures •Favoritism -- unfair "breaks" to friends or relatives (nepotism)

Most common Types of Wrongdoing:

Gratuities, Bribes, Theft, Internal Corruption, Brutality (LAPD Rampart CRASH unit)

Models of Police Deviance

•Knapp Commission (NYPD 1972):–Grass Eaters: Occasional , incidental, minor–Meat Eaters: Committed to corrupt enterprises; Actively pursue opportunities

•Larry Sherman: “Rotten Apple” vs. “Rotten Barrel”(1) Rotten apples/pockets

(2) Pervasive unorganized

(3) Pervasive organized

•Barker & Carter:

(1) All the wrong reasons (Type I)(2) All the right reasons (Type II)

Explanations of Deviance• Questions to consider:

– How does someone attracted to uphold the law become corrupted?

– Is power inherently corrupting?– Multiplicity of Standards?– Public Tolerance of Police Wrongdoing?– The importance of socialization & the aspects of

police subculture that support police wrongdoing

• Persistence and prevalence of a wide diversity of wrongful acts suggests that it is a systemic problem

Discretion & Police BehaviorSocialization Versus Predisposition

Why does this issue matter?

•Community policing issue:

How to hire new kinds of officers. –If socialization, managers will have to change the organization. –If predisposition, hiring practices have to be changed.

Discretion & Police BehaviorPARTICULARISTIC Perspectives: concerned with how officers differ from one another

Worden (1989): officers not psychologically homogenous. Five ways in which officers differ from each other.

(1) View of human nature. (Cynicism)

(2) Different role orientations. Crime fighters, problem solvers, crime prevention

(3) Attitudes toward legal and departmental restrictions. (Ends justify the means, lack of punitive criminal justice system; idealistic)

(4)Officer’s clientele. Judges, MADD—can lead to selective enforcement.

(5) Managers versus peer group support

Discretion & Police BehaviorStudies of Police Behavior

Police—Street-Corner Politicians (W. K. Muir).

Four modes of adaptation:•Professional style officers. Compassionate and comfortable with authority. •Enforcers: use force when they have the opportunity.•Reciprocators: compassionate but not comfortable with authority.•Avoiders: neither compassionate nor comfortable with authority.

Discretion: Domestic Disputes

• Prevalence of Domestic Violence– 1 in 6 relationships involve abuse annually– 25-30% of all couples will experience a violent incident in their lifetime– Women are much more likely to be victimized by people they know.

Consistent across class/race.– Data is lacking b/c of failure to report domestic violence to the police

(50-70% of the time depending upon community)• Women who report tend to be low income, working, non-white• Middle class women more likely to rely on alternative means of support• Most common reason for not reporting: perceived as a private matter,

followed by fear (retaliation)• Concentrated in certain families (geography – hot spots?)

– Victim/offender relationship complicates police response to domestic situations

Discretion: Domestic Disputes

• Police response:– Historically, has been an area of tremendous discretion.– Discretion as Not Invoking Law

Factors influencing decision NOT to invoke the law?– Belief it is a private dispute– Officer judgment victim will not follow through– Legacy of past dept. perspective to avoid arrest– Arrest is work for officers

• Presents risks of injury• Creates higher visibility of officer actions

– Police more likely to be batterers than the population as a whole

Discretion: Domestic Disputes

• Response options include:• Arrest – not so common• Mediation• Separation (physical) – police power is limited to enforce• Referral – police power is limited • No action

• Factors influencing decision to arrest?• Severity of injury• Victim’s preference• Relationship b/t v/o• Suspect demeanor (hostility)

Discretion: Domestic Disputes1970s Revolution in DV cases: Mandatory Arrest• 1st attempts to control officer discretion• Resulted from efforts to limit police discretion in the

courts on the grounds that ♀ were not receiving equal protection under the law– 14th Amendment

• (1984 Thurman v. City of Torrington, CA)– Police response should be guided by citizen behavior, not

by the relationship of the parties involved• Evidence that up to 90% of domestic homicides are

in HHs that police have already responded to a call for service

• Mandatory arrest policies based upon premise that arrest provides specific deterrence

Discretion: Domestic Disputes• Does mandatory arrest deter future DV

– Minneapolis DV Experiment (Sherman and Berk 1982)• Examined deterrent effect of alternative actions on Domestic Violence

– Arrest, mediation, separation• Cases randomly assigned to each treatment• Findings: Arrests produced lower rates of repeat violence• Resulted in widespread changes in policy toward mandatory arrest for

dom. Violence• Closer inspection revealed a number of flaws with the execution of the

experiment• Results have not been replicable in other cities• Why? Sample of recidivists; Abuse is normative in relationship; Arrest

alone is insufficient; disconnect between arrest and criminal sanctions; interaction effect with social capital

– Preferred (pro) arrest has been adopted by most departments• Other provisions have been developed: training in handling domestic

situations

– Officer response to such policies: generally prefer independence, officer gender, perceptions of danger, civil liability (both ways)