Running Head: DISCRETION AND POLICING 1

Discretion and Policing

Discretion is the ability of criminal justice professionals making operational decisions

based on personal judgment instead of formal rules, laws, or official information (Gaines &

Miller, 2008). The question of whether or not police officers should exercise discretion has been

continually debated over time. I feel that discretion plays a vital role in helping law enforcement

and public safety as well as assisting the criminal justice system function more effectively, as

long as the discretion is guided and in cooperation with community views. In this paper I will

discuss the use of discretion in domestic violence, protests, and policing minors.

According the United States Department of Justice, domestic violence is defined as a

“​felony or misdemeanor crimes of violence committed by a current or former spouse or intimate

partner of the victim...” (U.S. Department of Justice, 2019) With an increasing amount of

domestic violence cases, many argue that discretion can facilitate racially or ethnically

discriminatory policing. ​In order to address these new concerns, many jurisdictions have put into

place new policies such as pro-arrest and mandatory arrest policies for domestic violence.

(Deimer, Ross, Humphreys, & Healey, 2016) Studies were conducted in Minneapolis and

California to determine if these reforms showed a reduction in reoffending. Many cases showed

that there reforms did reduce the amount or reoffending but there were not enough of these cases

to produce consistent results. (Deimer, Ross, Humphreys, & Healey, 2016) Other studies found

that mandatory arrest policies were associated with increased levels of violence because the

perpetrator was left with a criminal record making it very difficult for them to seek employment.

An officer interviewed during this study stated that mandatory charging was detrimental to the
Running Head: DISCRETION AND POLICING 2

relationship between the two parties involved and made it more difficult to resolve their issues.

(Deimer, Ross, Humphreys, & Healey, 2016)

In the case of domestic violence, I feel that policies such as mandatory arrest are

extremely ineffective as they eliminate all powers of discretion from a police officer. All

domestic violence cases that police officers encounter are different. Therefore, the way in which

they should be handled varies. Policies that are black and white do not fit every scenario and that

is why we must rely on police discretion. Instead, policies should be developed that restrict and

guide police discretion. These policies should have collaborative problem solving approaches

that involve working with the individuals involved with the domestic violence case.

A protest is a “formal declaration whereby a person expresses a personal objection or

disapproval of an act.” (Encyclopedia, 2008)​ ​Policing protests is an area in which police rely

heavily on their ability to use discretion therefore it is also the area in which they are criticized

the most for their alleged underuse or overuse of discretion. These criticisms bring to play

important questions such as when police should enforce criminal law against protestors and to

what extent. Currently, formal law does little to prevent either overenforcement or

underenforcement but instead gives police broad discretion to warn, issue citations or arrest

protestors as they see fit. (Burke, 2013) Many protestors and their supporters argue that police

use excessive force when retaining and arresting protestors and this may be true as there is no

formal law to prevent this. (Burke, 2013))

Many wish to put into place new policies to make policing protests more clear cut. In my

opinion, from viewing and reading about these studies, I think that stern policies would be
Running Head: DISCRETION AND POLICING 3

extremely ineffective as each protest and protest location creates different variables that require

the use of discretion by officers that are policing the protest. Instead, I feel that the most effective

way to police protests is to create flexible and transparent guidelines in which police use their

discretion. These guidelines should not be unilateral but instead cooperate with the community in

which these protest affect the most. Making the efforts to do this gives a voice to those who are

most affected by police officers’ decisions and in some causes can even prevent problems before

they occur.

Policing young offenders is another area in which police use a lot of their discretionary

powers. When dealing with young offenders, there are many pivotal factors that determine the

outcome of an altercation. The attitude of the suspect, the offender’s past record, and the nature

of the offense are the most influential. In a study that interviewed officers regarding these

factors, the majority of them declared that the attitude of the young offender was a pivotal factor

and any challenge to an officer’s authority would increase the likelihood of arrest. (Parker &

Sarre, 2008) The nature of the crime is another pivotal factor. In the same study, it was found

that in cases of shoplifting offenses with young offenders, 30 percent were issued warnings, 50

percent were diverted, and 20 percent were arrested. (Parker & Sarre, 2008) In cases of burglary

offenses with young offenders, 5 percent were issued warnings, 20 percent were diverted, and 75

percent were arrested. (Parker & Sarre, 2008) In cases of underaged drinking 64 percent were

issued warnings, 31 percent were diverted and 5 percent were arrested. (Parker & Sarre, 2008) In

cases of assault with no weapon involving young offenders, 17 percent were issued warnings, 55

percent were diverted and 28 percent were arrested. (Parker & Sarre, 2008) This study concluded
Running Head: DISCRETION AND POLICING 4

that police officers do not behave uniformly when it comes to young offenders and therefore

should not be considered a homogenous group.

There are also personal factors that contribute to the use of police officer discretion. In a

study conducted in New Jersey in 1979, when a group of police officers were asked whether or

not they had chosen not to arrest young offenders because they believed the judge would let them

off with a slap on the wrist, 50 percent of them responded affirmatively. (Parker & Sarre, 2008)

In this same study officers also confessed, off the record, that they may or may not have made

arrests or traffic stops because of bad weather, an argument they had with their significant other

the previous night, the attitude of the defendant, race of the defendant, and in attempts to avoid

paperwork. (Parker & Sarre, 2008) Many of these personal factors especially race should not

contribute to an officer’s use of discretion when dealing with young offenders but unfortunately

do. Race is a topic that is extremely important when it comes to discussing an officer’s power of

discretion. Unfortunately individuals that belong to different ethnic minorities such as African

Americans and Hispanics are involved in crime as they live in poverty stricken areas. This is

where guidelines for officers’ use of discretion should come into play to provide more

consistency and fairness for young offenders in the justice system.

Up until 1990 policing orthodoxy stated that discretion by front line police was both

necessary and desirable in order to effectively maintain public order. (Diemer, Ross, Humphreys,

& Healey, 2016) It was considered a vital aspect of police work and was carried out on a regular

basis by highly experience and knowable officers. Today these views are being challenged and

many argue that discretion can facilitate racially or ethnically discriminatory policing and

provide the opportunity for police officers to deviate from the rule of law and ultimately operate
Running Head: DISCRETION AND POLICING 5

in an unethical and corrupt manor. After conducting some intensive research on the topic I feel

that there are reforms that need to be made regarding police discretion in cases of domestic

violence, protests, and policing young offenders in order to provide more consistent and fair

policing. But in the end, I feel that discretion plays a vital role in helping law enforcement and

public safety as well as assisting the criminal justice system function more effectively, as long as

the discretion is guided and in cooperation with community views, and therefore should not be

eliminated
Running Head: DISCRETION AND POLICING 6

References

Burke, A. (2013, March). ​Policing, Protestors, and Discretion​. Fordham Urban Law Journal.

Diemer, K., Ross, S., Humphreys, C., & Healey, L. (2016). A ‘double edged sword’: Discretion

and compulsion in policing domestic violence. ​Police Practice and Research,18​(4),

339-351. doi:10.1080/15614263.2016.1230853

Gaines, L. K., & Miller, R. C. (2008). ​Criminal justice in action​. Australia: Cengage.

U.S. Department of Justice. (2019, January 03). Domestic Violence. Retrieved from

https://www.justice.gov/ovw/domestic-violence

Parker, A. L., & Sarre, R. (2008). Policing Young Offenders: What Role Discretion?

International Journal of Police Science & Management,10(​ 4), 474-485.

doi:10.1350/ijps.2008.10.4.100

Encyclopedia. (2008) ​West's Encyclopedia of American Law, edition 2​. (2008).