There are two very different viewpoints on the use of police discretion. One viewpoint is that most officers enforce their discretion properly and that proper use of their discretion can be beneficial to citizens. Another viewpoint is that most police officers will abuse their power, and their discretion must be limited. Both viewpoints seem to agree that there are both positives and negatives to police discretion. The textbook talks about how police officers, “have a great deal of discretionary power”. The textbook states how many citizens have benefited from the use of police discretion, such as receiving a warning instead of receiving a traffic ticket.
The textbook also mentions the dangers that come along with police discretion. Police can use their discretion to make arrests and to decide when to use lethal force. In this paper, I will explore the use of police discretion and how it can be used both positively and negatively, and how some people believe police officers have too much discretionary power.
In an article from The Ann Abor News, Discretion is the measure of a police officer, author, Rich Kinsey, a retired Ann Arbor police detective sergeant, talks about the positives that can come from the use of police discretion. The article talks about how the police must have discretion because enforcing every single law all the time would be very difficult, practically impossible. The article states, “We give the citizens the lack of policing their demand”. For instance, Kinsey talks about how in Ann Arbor, Michigan, if a person is caught with marijuana possession, they are issued a twenty-five-dollar fine, which is much better than being hauled off to jail.
Kinsey talks about how if the police were unable to use discretion, then an officer would have to issue a traffic ticket to every individual they pull over for violating a traffic law. That would cause outrage among citizens because almost everyone has violated a traffic law in some way. As I mentioned before, the textbook talks about how many citizens will receive the benefits of police discretion.
However, the textbook also talks about how we are protected under the constitution of unlimited police power, and “police act as the guardians of the law, not merely enforcers of the law”. Often in the media, police are seen abused their discretionary powers. However, Marquette Law Review shows how police discretion is actually a very beneficial tool and should not be looked at as a way to abuse power. Marquette Law Review writes, “Police discretion should not be ordinarily perceived as a usurpation of power by the police, but rather, as a legitimate exercise of ambiguously implied authority necessary to realize perceived responsibility”. Pollock writes, police act as guardians, not just enforcers for those in power. In a Virginian-Pilot article, Matthew Taylor, argues that more discretion actually reduces crime. Taylor writes how today’s law enforcement is too strict and with more discretion the jailed population will decrease and probation will be more effective.
In an article by Legal Cheek, Policing the police — when does discretion become dangerous, author, Georgie Crotty, talks about the dangers of police discretion. Too much police discretion can lead to discrimination and ultimately injustice. The article talks about how police discretion can lead to the overcriminalization of impoverished areas. Kinsey talks about how there is “an inter-relationship between low socio-economic background and hanging around on the streets made young, poor males much more likely to have contact with the police than their affluent counterparts”. Police focusing on the lower class is dangerous because they are using their discretion to focus on street crime, instead of turning their focus on the more “serious ‘white collar crime’ such as commercial bribery and tax frauds”.
An academic journal by Joseph Tieger, explains how police officers often choose to enforce small crime rather than larger, more serious crime. Tieger writes, “The reality in the street is one of discriminatory and selective enforcement.” A man with one marijuana cigarette is more likely to be arrested than a more serious gambling statute violation in an upper-class gentleman’s club. This can lead to injustice because a lot of these crimes are not nearly as serious as the crime of tax fraud, and shows that the police do not always aim there focus on the more serious crime. The article also points out the problem of race-based discrimination. Police may have a biased view on who is criminal and this can lead to more minorities getting arrested and falsely accused of crimes, “for example, black persons are six times more likely to be stopped and searched than white persons — according to the Ministry of Justice”. Crotty writes how the discretion of police needs to be limited because if the police have too much discretion, they can be viewed as too powerful by the citizens and can lead to the lack of trust between the police and the community.
In some cases, police officers will use their discretion improperly by “bending the rules” to fit their own personal agendas and prejudices. To keep policemen from bending the rules, rules need to be put in place. In an academic journal by Michigan Law Review, states that police discretion is too vast and must be limited and controlled. In order to implement this, “many have concluded, a system of rulemaking by law enforcement agencies themselves is imperative”. The journal turns to the fourth amendment as an example to support their argument. The fourth amendment rules against “unjustified and arbitrary search and seizures”.
Law enforcement agencies should layout rules and standards for police officers to follow. Rulemaking is the best way to make sure everyone gets equal and fair treatment and eliminates any bias or prejudice’s an officer may have. Crotty explains how discretion is a must-have for police, but it must be used properly and consistently because uncontrolled discretion can even be harmful to the police themselves, “leaving them open to scrutiny; resented in the community and distrusted by minorities the result of which may not only be dangerous but as has been exemplified, potentially even fatal”. The textbook writes that we are protected under the constitution of unlimited police power, however, many times police are able to get away with using their power and discretionimproperly. The textbook backs up Crotty by showing how police officers often target minorities more than others, especially when deadly force is used, which has strung a big debate on how the police view minorities.
As previously stated, there are two different viewpoints on the use of police discretion. In the Ann Arbor News article, Kinsey points out the benefits of police discretion, showing how police can choose to give a warning or lecture to small crimes like traffic violations. Many citizens enjoy the use of police discretion because they have gotten a slap on the wrist or a fine, rather than thrown in jail. However, in the Legal Cheek article, Crotty points out the dangers of police discretion. Many people, specifically minorities, are unhappy with the use of police discretion because they believe the police target them when they should be out fighting the “real crime.” In Kinsey’s article, you see the police giving the citizens “the lack of policing they demand” and in Crotty’s article, you see how police use their discretion to target the lower class and minorities.
A major difference between the two viewpoints is how to control the use of discretion. In Kinsey’s article, a “checks and balances system” is the best way to control the use of discretion. This means an officer cannot have too much power and can only use discretion on specific crimes and they will be held accountable for improper use of discretion. Therefore, an officer most likely won’t abuse their discretion because they will be held in check. In Crotty’s article, confining police officer’s use of discretion is the best way to control the use of discretion.
This means police officer’s discretionary power will be limited and rules will be set in place for officers to follow. The rulemaking will give police officer’s a direct guideline on how and when to use their discretion. The difference between the two ways to control the use of police discretion is a checks and balances system recognizes that sometimes police officers do abuse their power, but they will be held accountable when they do. Rulemaking tells officers how to use their discretion to prevent the abuse of their discretion in the first place and will have a direct guideline to reference. Both articles state that discretion is a must when it comes to policing, otherwise the job would be impossible.
The use of police discretion is a very sensitive subject and there is good reason for that. Many people have lost their freedom and even died from the improper use of police discretion. I believe most policemen do their job the right way, or at least have the right intentions. However, there are police officers that are corrupt and abuse their power. Police discretion is too vast and must be confined because people view police discretion differently. I think by taking from both articles, the use of police discretion can be improved. By setting rules for officers to follow and using a system of checks and balances, police officers will not only understand how and when to properly use their discretion, but they will also be held accountable if they do not follow the rules set in place.
I believe this system will prevent many cases of abuse of discretion to occur. It will also set apart the officers who actually do the job correctly from the ones who are corrupt. Personally, I believe discretionary power does not need to be limited, but rather it should be less broad. Everyone has a different view on police discretion, but if it is defined and a set of rules are put in place that is the same throughout the country, then the problem of police abusing their discretion can be dramatically improved.