Police Discretion and Control Study Notes

Definition and Nature of Police Discretion

Discretion exists when an individual makes decisions based on personal judgment rather than following prescribed directions.
Police selective enforcement occurs when officers use judgment to decide which laws to enforce, on what occasions, against whom, and how.
A decision is a cognitive mental process where an option is chosen based on available information, resulting in an action or behavior.
Decision quality is evaluated by its outcome, the process used to make it, and the information considered.

Discretion Across Police Roles

Patrol Officers: Decide whether to conduct traffic stops, issue warnings or citations, stop and question suspicious individuals, select patrol beats, initiate high-speed pursuits, make arrests for minor offenses, and select the type and level of force to apply.
Detectives: Decide what investigative actions to take, how much time and effort to allocate to a case, whether to seek search warrants, and which tactics to use during suspect interrogations.
Supervisors and Administrators: Decide whom to hire, whether to discipline or terminate employees, how to draft or revise departmental policies, what legal infractions to prioritize, and how to allocate departmental budgets.

Potential Problems with Police Discretion

Significant Impact on Citizens: Discretionary choices can lead to citations, arrests, employment loss, altered child custody, or life-and-death outcomes.
Potential for Bad Outcomes: Decisions made with proper justification can still produce tragic or unintended results due to factors outside an officer's control.
Decision-Making Flaws and Bias: Bad choices stem from inadequate training, misinterpretation of threats, errors in judgment, or malicious intent such as racial or sexual bias.
Misinterpretation by Citizens: Legitimate, non-biased enforcement actions may be perceived by citizens as unfair or discriminatory, damaging police-community relations.
Low Visibility Operations: Many patrol decisions occur in private settings with only one officer present and no supervisor oversight, though Body-Worn Cameras (BWCs) help increase transparency.
Time Constraints: Officers must usually make split-second decisions without time to gather full information or evaluate all consequences.

The Necessity of Police Discretion

Resource Limitations: Time and financial constraints prevent full enforcement of all laws, forcing agencies to prioritize serious offenses (e.g., investigating homicides over burglaries or citing drunk drivers over speeders).
Need for Flexibility: Discretion allows officers to account for individual motivations and circumstances (e.g., treating a speeding physician saving a life differently than a speeding teenager).
Complexity of Real-World Scenarios: It is impossible to write rules for every potential situation; eliminating discretion in one area (e.g., automated traffic enforcement cameras) creates new discretionary decisions elsewhere (e.g., camera placement and enforcement thresholds).

Factors Influencing Police Discretion

Officer Characteristics: Factors like age, sex, race, and education generally have minimal overall effect. However, female officers conduct fewer searches, make fewer arrests, and use force less often than male officers. Black and Hispanic officers in certain jurisdictions make fewer stops/arrests and use force less often than white officers. Younger officers make more arrests.
Suspect Demographics and Demeanor: Disrespectful, defiant, or uncooperative demeanor ("Popo" or "assholes" as described by John Van Maunen) significantly increases arrest and force rates. Meta-analyses (e.g., 2014 analysis of 42 studies and 2011 analysis of 40 reports) consistently show Black, male, and Hispanic suspects face higher arrest rates across most crimes except domestic violence.
Implicit Bias: Unconscious cognitive shortcuts process group identity under time pressure. Countermeasures include realistic scenario-based training, exposure to diverse communities, and workforce diversification.
Victim Characteristics: Uncooperative victims reduce the likelihood of investigation or arrest, except in serious violent crimes or domestic violence incidents.
Offense Characteristics: Offense seriousness (injury, property loss, or harm) and strength of evidence needed for probable cause are the strongest predictors of arrest, often overriding other factors.
Neighborhood Characteristics: Stops, frisks, arrests, and citations occur at higher rates in low-income neighborhoods.
Organizational Culture: Shared values and unwritten rules (such as Elizabeth Rusynani's NYC police culture rules) shape behavior. Survival skills center on managing potential danger through "symbolic assailants" (Jerome Skolnick) and maintaining a code of silence.
Supervision, Training, and Standard Operating Procedures (SOPs): Restrictive departmental policies directly reduce firearm discharges, high-speed pursuits, and use of force incidents when actively enforced.
Legal Decisions: Supreme Court rulings constrain discretionary power (Miranda v. Arizona 1966, Terry v. Ohio 1968, Arizona v. Gant 2009, Tennessee v. Garner 1985).
Community Preferences and Critical Incidents: Public expectations shape agency priorities. Major events (e.g., Ferguson shooting of Michael Brown, George Floyd murder) can induce temporary depolicing or shifts in enforcement patterns, known as the "Ferguson effect".

Methods for Controlling Police Discretion

Administrative Policies and Supervision: SOPs set behavioral boundaries, but vague language requires clear interpretation through training and enforcement by first-line supervisors (sergeants).
Personnel Selection: Background investigations evaluating past conduct serve as the most reliable method for screening out violence-prone applicants.
Transparency and Public Accountability: Releasing policy manuals online, publishing use-of-force statistics, making complaint data accessible, implementing civilian review boards, and engaging with media/universities foster accountability.
Ethical Standards and Values: Integrating explicit values (integrity, respect, accountability) across hiring, evaluation, discipline, and academy instruction (moving beyond the typical $1\%$ academy time allocation) helps guide judgment in ambiguous situations.

Questions & Discussion

What is police discretion and why is it necessary? It is decision-making using individual judgment. It is necessary due to limited agency resources, the need for flexibility based on individual context, and the impossibility of writing rules for every complex scenario.
Why must discretion be controlled? To prevent decisions based on improper considerations (such as racial or gender bias) and to minimize bad decisions that severely impact citizens' lives.
What is the primary limitation of SOPs in guiding discretion? SOPs are often vague, cannot cover every contingency, and require subjective officer interpretation under stressful, time-sensitive conditions.
How do danger and suspicion shape police culture? Inherent physical danger creates suspicion as a survival mechanism, leading officers to identify "symbolic assailants" and adopt an "us versus them" mentality or code of silence.
How can ethical standards be successfully embedded in a police agency? By establishing clear departmental values that govern all organizational processes (hiring, evaluation, discipline, rewards) and providing candid, reality-based ethics training.