Discretion

Forrest Zimmerman

Definitions

·     Police’s decision-making power not explicitly defined by law(lecture)

·     An official action that is taken by a criminal justice official (i.e. police officer, lawyer, or judge, etc.) in which they use their own individual judgment to decide the best course of action (Halliday 3)

·     A public officer has discretion whenever the effective limits on his power leave him free to make a choice among possible courses of action or inaction (Pepinsky 250)

Note: Discretion always involves some level of bias, whether it be implicit(unknown to the actor) or explicit(actively acknowledged or admitted by the actor). Explicit is significantly more rare than implicit, as very few would openly admit to holding contempt to another group, if they even have those feelings at all. Implicit is the more common bias, because everyone has some form of it(Epp, Maynard-Moody, and Haider-Markel, 7). Learned implicit biases effect the actions of police officers everywhere in every kind of town or department. As commitment to investigatory stops has deepened, the practice of ‘proactive’ stopping has become institutionalized(Epp, Maynard-Moody, and Haider-Markel, 10-11).

History

            The term “discretion”, specifically in reference to the police (and as it pertains to our class), is relatively new in the context of the lengthy history of law. In fact, it really didn’t even exist as a concept until the late 1950s. Up until that time, police discretion solely held a negative connotation. It was actually often looked down upon because the police were expected to perform their duties to the exact specifications of the law. The entire criminal justice system, the judges, prosecutors, and police, followed an extremely inflexible uniform standard. If an officer was not going exactly by the book, it was seen as corrupt and possibly even illegal(Halliday 3). 

            This rudimentary standard changed when the American Bar Foundation conducted a study in 1956 in three states concerning this new idea of ‘discretion’. The study found that officers do in fact often use discretion without really knowing it, and of the three criminal justice professions mentioned in the previous paragraph, they far and away use it the most often in their jobs(Halliday 3). Police were said to “use enormous discretion, that discretion is at the core of police functioning, and that police use criminal law to sort out myriad problems.” The more regimented and regulated a department was, the less effective their police work ended up being(Kelling 6). This was the first time this phenomenon was really pointed out to the public. Once this study was completed and published, the controversy of police discretion began. 

Term’s Relation to LSJ 200

            Early in the quarter, Professor Herbert introduced to us the idea of ‘police discretion’. In a particular lecture (January 16th lecture), he discussed the term in relation to the uniqueness of police power. The police are the only group in our society that are legally permitted to exercise coercive force. In other words, it is completely up to their discretionto utilize this ‘monopoly on violence’. This power is tricky to handle, to say the least, which is why law enforcement is considered to be such a difficult profession. The saying “to whom much is given, much is expected” comes to mind in this discussion. 

The main components of the role of police in society include maintaining order, keeping peace, and enforcing the letter of the law. Their discretion is a huge aspect of these duties. As defined above, discretion is the decision-making power granted to the police that is not strictly outlined in the legal code. Professor Herbert petitioned us to come up with the advantages and disadvantages of this special power. The pros that the class produced included more efficient peacekeeping as a result of discretionary action, enhanced police legitimacy, and the ability of an officer to draw on specific knowledge and experiences to handle a variety of situations. The cons argued that there is too much variation from officer to officer, the room allowed for bias and emotions to take hold, and the general fallibility of humans. Both sides offer very sensible points, and Professor Herbert provided us with a real-life scenario that demonstrated each one. 

The positive use example he gave told a story of dispute resolution. A shop owner’s car was illegally parked near his storefront and a tow truck was called. The officer was writing the ticket and waiting for the tow truck to arrive when the owner came rushing out, pleading for mercy. The tow truck told him he could either pay the tow fee of $150 now and he would let it down, or he would have to come get it from the yard later for a higher price. The ticket the officer had the option to write would also be quite pricey. The shop owner lamented that he did not have the cash to pay either of those amounts in that current moment. The officer asked the tow truck driver if he would allow the owner to pay half the fee now on the condition that he immediately finds a legal spot. The tow truck driver obliged, as he was still getting money out of it and he would save a trip back to his yard. The owner walked away grateful too in saving a lot of money. The officer then chose to not write the ticket because he felt that the owner had learned his lesson and already paid enough money. His discretion perfectly fostered a solution that both sides happily consented to.

The negative use example exhibited the bias issue of police discretion. Professor Herbert told the story of a specific time-killing habit of a patrolman assigned to a lower-income neighborhood. When this officer had down time during his shift, he would park at a busy gas station and wait for several cars to come through. He would then run all their plates, checking for any expired registrations or outstanding fines. If he came across one, he would approach and write them a ticket. This is widely accepted as an extremely poor use of discretion. Registration tends to be quite expensive, especially in big cities, so many drivers in poorer neighborhoods may not be able to afford the hefty fee at one time. This practice essentially preys on the poor, and furthermore, does not keep the community any safer. 

Positive Discretion

            Some legal scholars, in addition to the police themselves, argue that police discretion is highly necessary, and there are many valid reasons for it. In his essay “Selective Enforcement and the Rule of Law”, John Kleinig argues that discretion happens all the time, it benefits us directly in certain situations, and societal function would diminish without it. 

            An initial argument made by the author is that police possess such regular discretion that us citizens truly rarely ever notice it. That is how commonplace the practice is. Kleinig quotes a different article on page 2: “they disperse unruly crowds, quiet noisy neighbors, break up fights before they begin, clear the streets of prostitutes, and so on.”In these situations, arrests could absolutely be made and citations surely issued. But because the police have discretion, they may simply resolve the dispute, satisfy the parties, and ensure everyone leaves happy. This is incredibly valuable in society and in terms of efficiency that may not be worth giving up. 

            Kleinig’s first specific example of good, basic police discretion is one that most have experienced at some point: getting pulled over for speeding. Technically, the speed limit is 65 on the highway. One single mile per hour over that is illegal by the book, but most drivers understand that they have a 7-10 mph grace window before they risk getting stopped. If a driver got pulled over for going just 5 mph over, they might be a little upset because they are used to having more wiggle room and they weren’t driving recklessly, regardless of the fact that it is illegal. The officer who stopped them will likely deliver a warning to slow down and be careful next time without issuing a ticket(Kleinig 6). Anyone who has been pulled over and gotten off with just a warning is surely grateful for this discretion, as it saves them a lot of money and hassle. It is a clear and obvious benefit that everyone would agree on – after all, nobody would rationally choose a ticket. Kleinig’s point is that yes, there are concerns when it comes to investigatory stops (that are explored in more depth below) and other issues related to implicit bias, but revoking police discretion is an idea stemming from this negative and does not consider the similarly frequent and common positives. 

In relation to the overall functioning of society, he states that eliminating police discretion would mean that officers are required to move to “full enforcement” of the law. As extreme of an example as it may be, Kleinig points to the laws banning sodomy and adultery in certain states as statutes that are rightfully not enforced(Kleinig 5). If they were, other rights could be violated and the police would alienate entire communities through these actions.

Negative Discretion

            A prime example of a text that discusses negative discretion comes directly from LSJ 200: “Pulled Over: How Police Stops Define Race and Citizenship” by Epp, Maynard-Moody, and Haider-Markel. This reading from early in the quarter is a lengthy study on the racial disparities in “investigatory stops” by the police. An investigatory stop is when an officer pulls over a car or stops a pedestrian for a minor, non-threatening violation (like jaywalking or a broken taillight) in order to further question and investigate them for possibly more serious criminal activity. It is important to note that an officer must have “probable cause” to stop someone.The idea of what probable cause exactly is has been hotly debated over the last few decades, making these investigatory stops questionable at times. For example, some drivers have been stopped for “looking suspicious” or being in the “wrong neighborhood”. These stretched probable causes are a main focus of “Pulled Over”. 

            One of the most notable specific findings in the overall study on investigatory stops was the likeliness of being stopped depending on a variety of characteristics.This part finds “African-Americans face the greatest risk. They are 2.7 times more likely than whites to be stopped in investigatory stops.”(Epp, Maynard-Moody, Haider-Markel 64). To add validity to this claim, the three researchers propped the investigatory stop statistics (divided by race, gender, and age) up against the same groups for traffic stops, which are considered to be wholly legitimate because they are executed with public safety as the primary motivator. Young black men have the highest likelihood of the different groups of being stopped for investigatory reasons and also for being stopped more than once in a year (40% chance!). These rates increase as the value of their vehicle decreases too(Epp, Maynard-Moody, Haider-Markel 66-67). 

            The question now is how does this relate to discretion? Well, investigatory stops are completely discretionary actions. The police are often basing them off a hunch or a slightly abnormal action they witnessed. Unfortunately, this has led to thousands upon thousands of these intrusive, at times demeaning, stops for minorities. These repeated personal violations have led to significant mistrust and animosity between African-American communities and the police around the country. In class, we have discussed the constitutionality of these stops and how they have often been challenged in court, generating mixed results. One notable case was U.S. v. Drayton. In this case, the police asked to search two men on a bus in Florida who were wearing heavy winter clothes, which was determined to be out of place given the sunny climate. The police found a couple of kilos of drugs on the men, under their clothes. The men argued that their 4thamendment rights had been violated. The court ruled that because they consented to the search, even if they did not know they were allowed to say no, the search was legal. Some critics questioned whether the policemen had enough of a reason to initiate a search, because their only probable cause was the clothes the men were wearing. Winter gear in a hot climate may be strange, sure, but nothing is inherently illegal about it. It is a bit of a weak reason to stop someone. Most opponents of freer police discretion will point to this long-term development of questionable probable cause to support their stance on the matter. 

These are just a couple of specific examples of negative discretion, many more are out there that have been subjected to equally rigorous study. There are always examples cycling through the news of negative discretion. One recent, and tragic, one comes out of Alabama, where a black man responding to gunshots was fatally shot by an officer on duty at the mall. Emantic Bradford Jr., known to friends and family as “EJ”, was legally carrying a handgun that was drawn but pointed down, trying to find the source of the gunshots in the mall. The officer saw him running with the weapon and assumed him to be the shooter. Without giving any verbal commands to stop and drop the weapon, the officer fired. He will not face any criminal charges, and the Alabama attorney general stated he acted reasonably(see: glossary entry on reasonable officer standard and its controversial history) and within his training(New York Times). People around the country are upset with this decision because the officer made an assumption, potentially partially based on race, did nothing to clarify the veracity of this assumption, and acted impulsively, resulting in the tragic loss of life of a man who had been helping people reach safety.

Conclusion

            Police discretion is undoubtedly an important term for society to consider and debate. Controversy is aplenty surrounding the debates of its applications to daily police operations and the treatment of this country’s citizens. At this point, there is no clear, foolproof solution to the failures of discretion that result from implicit biases, but various non-governmental organizations continue to work with and press departments around the country to better their practices. Humans are fallible, meaning that discretionary mistakes causing harm may never be completely eliminated, but hopefully law enforcement can continue to improve to a point where all members of our communities feel safe. 

Works Cited

1.    Halliday, Gemma L. “Enforcing the Law Without Fear or Favor.” Macomb, IL: Western Illinois University. http://www.wiu.edu/coehs/leja/cacj/research/documents/past/haliday.doc

2.    Pepinsky, Harold E. “Better Living Through Police Discretion.” TBC

3.    Epp, Charles R., Haider-Markel, Donald, and Maynard-Moody, Steven. “Pulled Over: How Police Stops Define Race and Citizenship.” Chicago and London: University of Chicago Press, 2014.

4.    Kleinig, John. “Selective Enforcement and the Rule of Law.” Journal of Social Philosophy, 29, Number 1, 117-131. https://onlinelibrary.wiley.com/doi/pdf/10.1111/j.1467-9833.1998.tb00100.x

5.    Herbert, Steve. “Law in Action: The Case of the Police.” University of Washington, Seattle. 16 January 2019.

6.    Fausset, Richard. “Officer Faces No Charges in Fatal Shooting in an Alabama Mall.” The New York Times, The New York Times, 5 Feb. 2019, www.nytimes.com/2019/02/05/us/alabama-mall-shooting-death.html.