Police Officer Discretion…and Focusing Our Efforts on Better Outcomes

“While improvements in policing have usually resulted from revelations of wrongdoing or the documentation of inadequacies, it does not follow that public dissatisfaction has always produced change. With monotonous regularity, peaks of interest in the police have been followed at both national and local levels by the appointment of a group of citizens to examine the specific problem that has surfaced and to make recommendations for dealing with it. In the heat of the moment the appointment of such a group has often, by itself, been sufficient to reduce public anxiety. And with a reduction in public anxiety, public interest begins to fade so that, by the time the study is completed, support to implement its recommendations is lacking.” ~Herman Goldstein, Policing a Free Society

This quote is as meaningful today as it was 40 years ago. In the 21st century policing which in my humble opinion is actually, old school policing, old school methods where cops hit the streets not to wait and respond, but to actually interact and engage the community in meaningful ways where we want the public to believe and feel that the procedures and practices that policing adheres to are “just”.  When police have discretion on what, when, and how to enforce those lawful procedures and practices, high feelings of Procedural Justice will encourage citizens to cooperate with police and help reduce violence and crime and develop a safer community. However, the public’s perception of legitimacy is subjective and will vary among individuals and communities.

Although a judge can determine if a police action was lawful, and a police supervisor can determine whether an officer acted within the bounds of departmental police, the citizen will form their own opinions about whether they view the actions of an officer as measured or excessive, as impartial or discriminatory. If you do not think this to be true, just take a look at the current climate of distrust of police across this country based not on facts and truth, but instead on emotion and what is perceived to be the case. Police officers have an extraordinary responsibility when policing a free society. One bad cop, one bad incident, one bad contact, one wrong perception about a cop on the part of a community can have huge implications and is why we must develop adaptability and expand the range of response alternatives to the types of problems we face. To do this means police officers must be allowed to use their discretion.

Defining Discretion in Law Enforcement

Discretion refers to 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. In theory, the criminal justice official considers the totality of circumstances before determining whether or not legal action should be taken against an individual(s). And, to what kind and degree that action will be taken (Walker & Katz, 2005), for example; issuing a warning, or actually arresting an individual(s) in the case of law enforcement officials. It should also be noted, that discretion is further “a permission, privilege, or prerogative to use judgment about how to make a practical determination. There are embedded constraints” (Kleinig, 1996, p. 3). Thus, criminal justice officials such as the police cannot just go out and freely make choices without consequences. They are bound by laws, rules, norms and guidelines when exercising discretion.

It wasn’t until 1956, when The American Bar Foundation (ABF) conducted a survey discovering that discretion operated at all levels of the criminal justice system, that discretion was “discovered” and really came to light. This survey was carried out in Kansas, Michigan and Wisconsin, relying heavily on low-level decision making by criminal justice officials i.e. police, corrections officers etc. The results on behalf of law enforcement showed that “police work is complex, that police use enormous discretion, that discretion is at the core of police functioning, and that police use criminal law to sort out myriad problems” (Kelling, 1999, p. 6). Furthermore, it was also found that police use a much higher amount of discretion than most other criminal justice officials. This is because as previously stated; the police are the first point of call acting as the gate-keepers of any criminal justice system. Thus, they are among the most important policy makers within society, because they make far more discretionary decisions concerning citizens within the community on a daily basis (Kleinig, 1996; Kelling & Coles, 1996). Dealing with so many different individual cases, it become recognized that law enforcement officers could not always strictly follow all rules and regulations as stipulated by law.

Achieving Better Outcomes in Our Communities

In his book Policing a Free Society (1977) Herman Goldstein states:

“It is ironic that there is so inverse a relationship between the diverse array of tasks the police are expected to perform and the extremely limited methods formally available to them for getting the job done. If the police are to fulfill their responsibilities in a fair and effective manner, they must be provided with a set of alternatives in the form of authority and resources, sufficient in numbers and variety to enable them to deal appropriately with the situations they commonly confront. This means informal alternatives now in use must be evaluated, legitimated and refined when necessary, or discarded. And it means new alternatives must be designed. It should not be necessary to label conduct criminal in order to authorize police to deal with it. Nor should it be necessary for the police to make informal use of other systems, or improvise, or function in a sub-rosa (in secret) or illegal manner.”

Goldstein wrote this back in 1977, and it’s been written about many times, in many different ways over for the past 40 years. Policing has no shortage of research, resources and alternatives to the criminal justice system. What we do have, is a reluctance to implement them, in a meaningful way that effects lasting change.

In today’s policing climate the idea behind procedural justice is to obtain legitimacy from the public or society.   But what is legitimacy and how do we obtain it? Essentially it is the measurement of the public’s trust and confidence in the police to do their job.  The public must believe that the police are honest, competent and treat people with dignity and respect.  As we continue on, we will see why this relationship with the public becomes so important. Legitimacy also plays a role in the internal relationships of the department.  An employee must have faith in their employer to manage conflicts and solve problems within the workforce. The idea behind procedural justice is to obtain legitimacy from the public or society.  The public’s support and trust in the police. What happens when people feel that a relationship is unjust, when they feel like they can’t turn to the police? Feelings of hatred, resentment, revengeful develop.  Reflect for a minute from a police officer’s point of view. Many may feel that they have had a supervisor who hasn’t listened to their side of the story or doesn’t seem concerned. How did this make you feel? Studies have shown employees are less likely to follow the rules, less willing to cooperate with supervisors, and traditionally less productive when trust is lacking in the workplace. The same holds true in the community.

If the focus in improving police operations is on the quality of the services delivered to the citizenry, as it should be, the design of new responses to commonly reoccurring situations (mental health, substance abuse, violence, etc.) holds tremendous promise.

“It is possible to visualize the day when a police officer will be provided with a wide range of alternatives for both immediate intervention and the disposition of cases, and when he will be highly trained in their use. Some of these alternatives may simply consist of new techniques and procedures; others may call for invoking some carefully limited forms of police authority; still others might consist of new community services with which police can interact and integrate their efforts. Whatever their form the alternatives would result from careful study and imaginative planning; and they would be molded to fit the situations to which they were intended to apply, have proper legal underpinnings, be accompanied by adequate procedural safeguards, and be fully recognized as appropriate methods for handling policing.” ~Herman Goldstein, Policing a Free Society   

Discretion requires making difficult choices subject to scrutiny, while exercising good sound judgment on behalf of that police officer(s). Discretion simply means choice, that’s all.  As a police officer, we have to make many choices. We are limited by law and our department policy, but, to be honest, often time’s real police work becomes an art of tapping into your common sense. When all is said and done with a police interaction procedural justice is tied more to the perceived fairness of the process than the perceived fairness of the outcome. People are more concerned with how they are treated by officers than they are about the outcome of the stop. They look for clues that the officer made a decision fairly and without bias. In the end, even if there was a bad outcome (ticket, arrest) but the citizen feels that they were treated good, procedural justice is obtained.

Herman Goldstein’s work Policing a Free Society is packed full of information you will find repeated in the latest study as in The President’s Task force on 21st Century Policing. My point is to illustrate studies and lessons learned mean nothing if our profession does not care enough to adapt and implement the ideas in a way that makes a difference. To those officers and departments that are already developing new and innovative alternatives that include conventional and unconventional methods to the criminal justice system. Stay the course and use the broad discretion in providing services to the community you police. The quality of police service depends on the manner in which this discretion is exercised.

Stay Oriented!

Fred