Police discretion is an unwritten law meaning it is not concretely represented in the constitution or any other rules or regulations governing law enforcement. However, it is a practical part of law enforcement because there are times when sound personal judgment and decision-making becomes necessary in the process. Police discretion is highly important in situations wherein the role of rules and laws are ambiguous or inapplicable. Although unwritten in documents presenting laws, it is valid because the police is an institution granted authority and power.
Moreover, law enforcement agencies are expected to abide by ethics and morality at all times when practicing police discretion. Police discretion is valid because it is exercised by an authority or power, but then it becomes steadfast and trustworthy if it is practiced within the bounds of ethics and morality. (Atherton, 2001) Herein lay judgments and criticisms regarding police discretion. Police discretion is ideally utilized to determine whether to intercede with behavior and activities.
This is supposed to be the primary purpose of police discretion. (Seri, 2008) For instance, a police man happens to chance upon a man shouting at his wife in a public place. Police discretion concerns making the decision of whether to intervene in the process with considerations to privacy issues since it is a private matter between husband and wife, but since it is in public, the situation’s relation to public disturbance is not something to be disregarded.
At this point, police discretion addresses the matter of whether to intervene or not. (Kelling, 1999) The fabled and fictitious source aspect of police discretion is its relation to the philosophical foundations of ethics and morality. Conflicts in the practice of police work require discretion for its resolution. However, conflicts and ambiguities do not depend on just discretion, but count on morality to frame the judgment and decision-making process in order to uphold sound preferences when carrying out decisions.
Morality talks about what is right from wrong – the right, based on the rules and commandments presented by God to man. Moreover, morality talks about intention as a primary factor in determining the goodness of an action, behavior or decision. This philosophical concept builds on what police discretion is about, guiding judgments and rationalizations in order to arrive at a morally good action. (Greenawalt, 1987) Perhaps it is rational to include the mythical concept of ethics and morality in framing police discretion guidelines and policies.
Controlling philosophical concepts as a means to guide police discretion practices ensure that intentions are upright and the end action of the decision is morally good. This upholds accountability and values development in the field of law enforcement. Moreover, it addresses the matter of debate regarding the negative implications of allowing law enforcement agencies freedom to make decisions in their line of industry. It eliminates the abuse of power, and shifts it to the use of police discretion conscientiously.
Another purpose of police discretion is making a decision of whether to label a particular action, behavior, or activity as criminal. (Seri, 2008) Juvenile crimes are primary targets of this issue since charging children with crimes is a sensitive concern. If for instance a police man catches a minor stealing from a grocery store, police discretion is practiced to make a decision on whether to charge the child with a criminal case.
Other options include giving the child a chance by advising him to not repeat the act again and then letting him go, talking with the child’s parents directly to ensure that a the negative nature of the child does not go undisciplined, turning the child over to social welfare services, and charging the child with a criminal case. The decision of what to do in this particular scenario as well as similar situations, wherein there are opportunities of making sound judgments and decisions unguided by laws, is part of police discretion.
Overall, police discretion is a power granted to members of the law enforcement as a means of raising the accountability of the institution by empowering them to learning and applying sound and moral concepts that promotes progress and development in the field of law enforcement. (Seri, 2008) To delineate further the concept of police discretion, five police actions will be discussed and analyzed in order to determine the expediency of practicing police discretion and identifying whether it is reasonable or an abuse of power.
Harnessing the influence of the community as an effort to promote community policing is one task that law enforcement should work on. This is reasonable as the decision to formulate a neighborhood watch program to realize the goal of community policing sustains peace, order and security in the community. This action becomes an abuse of power if members of the community are forced to help in the process of enforcing laws. Community policing should be a voluntary effort.
Minors are given light sanctions for criminal activities because of their inability to think rationally and independently without guidance from people in authority. Police discretion is acceptable when it comes to adjusting the enforcement of law to a particular situation where a minor is concerned. Police discretion becomes an abuse of power if minors who are caught committing crimes are directly charged with criminal cases without reviewing the need for social work intervention, counseling, and other lighter sanctions and disciplinary actions.
When it comes to police interrogation, questioning techniques is part of police discretion. Policemen are given authority to subject suspects, witnesses, and victims to interrogations. Police discretion is acceptable if questions, in whatever form or manner executed, are relevant to the case and properly carried out in the process. It becomes abuse of power if people who are being interrogated are subject to threats and hostilities, forced to answer questions, and are asked personal matters. This goes the same with searching properties to look for evidence.
Police discretion is deciding what areas within the properties to search, of course with the grant of a search warrant. It becomes an abuse of power if damage is inflicted to property as a means of hostile interaction with other people. Lastly, respecting the privacy of any individual should be maintained by law enforcement agencies. Although sustaining laws requires the obtainment of truth and factual information, police work should also consider privacy of other people in order to practice police discretion ideally and not abusively.
Courtney from Study Moose
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