Discretion

Definition of Discretion

Discretion is defined as ‘liberty of deciding as one thinks fit, absolutely or within
limits’ (Concise Oxford Dictionary).

Discretion and Policing

Philip C. Stenning wrote in the SAGE Dictionary of Policing all the following about Discretion:

“It is a central feature of every stage of the administration of criminal justice within common law jurisdictions (and in this respect may be contrasted with the ‘principle of legality’ which prevails in many European civil law systems). The legal authority of the police is a critical element of this system of discretionary justice. Most of the legislation from which police derive their most significant legal powers (of investigation, detention, arrest, surveillance, search and
seizure, use of force, laying criminal charges, etc.) states that police ‘may’, rather than ‘shall’, do this or that when carrying out their duties. In exercising these powers, therefore, police are authorized to exercise discretion.

Distinctive Features

Because of the typical organizational arrangements of most police services, frontline
officers in practice most frequently exercise power over citizens and spend most
of their working hours either alone or in pairs. Because they are often out of direct
communication with supervisors, effectively governing their exercise of discretion, and
holding them effectively accountable for it, presents significant problems for police
management.

Supervision is by necessity indirect and remote most of the time, and often the only
witnesses to the exercise of coercive legal powers are those in relation to whom they
are exercising them. The question of whether any given power has been exercised
lawfully or in accordance with the service’s policies, therefore, often comes down
to the suspect’s word against the officer’s word (and commonly there will be more
officers than suspect witnesses).

This largely explains why such a high proportion of complaints against abuses of power by police officers are determined to be ‘unfounded’ or ‘unsubstantiated’ when investigated by police or external civilian bodies. Both laws and police services (through policies and training), however, seek to place limits within which discretion is to be exercised by police officers in the execution of their duties. Such limits are said to ‘fetter’ discretion, and police officers and other criminal justice operatives are typically not (officially at least) recognized as enjoying ‘unfettered’
discretion.

One of the common legal limits within which the discretionary power of arrest
is usually required to be exercised, for instance, is that before exercising this power
officers must have a ‘reasonable suspicion’ or belief that the suspect has committed,
or is committing (or, in some circumstances, is about to commit) an offence. Court
rulings have established criteria for determining what ‘reasonable suspicion’ entails and
whether this requirement has been met in particular cases.

Of great concern in many jurisdictions in recent years have been allegations of
discriminatory exercises of discretion by police officers against members of particular
groups, such as racial and ethnic minorities, youth, members of particular religious
groups, gays and lesbians, low-income and homeless people, etc. Sociologists of the
police have long observed how police, in doing their patrolling and investigative work
often seem to focus [p. 86 ? ] disproportionately on the activities of those whom they
perceive to be the ‘usual suspects’, who frequently belong to such groups. In their
most extreme and systematic form, these practices are known as ‘profiling’, whereby a
person is particularly targeted for police attention solely because he or she belongs to
such a group (the alleged ‘offence’ of ‘driving while black’ is a particularly controversial
example of this).

While discretion may thus often be abused to the detriment of members of certain less
powerful groups in society (referred to by some sociologists for this reason as ‘police
property’), it may also be abused to inappropriately benefit members of other, typically
more powerful, groups (including other police officers who are caught breaking the law).
If such abuse becomes widespread, of course, it creates a reality, as well as public
perceptions, that there is in practice ‘one law for the rich (or powerful) and one law for
the poor (or disadvantaged)’.

Evaluation

Despite these problems with discretion, it is more or less universally accepted (and has
been reflected in legal rulings) that discretion is an essential feature of the exercise
of authority by police. There are two main reasons for this, one pragmatic, the other
normative. The pragmatic reason arises from the reality that there would never be
enough police and other criminal justice resources to enforce the law strictly against all
violators at all times. This reality means that enforcement must inevitably be in some
way selective, and the instrument for applying such selectivity is, of course, discretion.
Discretion thus operates at two levels within police services.

At the institutional level, a police service has to decide how to prioritize the deployment of its limited resources to enforce the law and perform other policing tasks. This will vary both from one police service to another and, within any one police service, from one area to another and
from one time to another. This strategic discretion is exercised by police leaders and
managers, often after consultation with their governing authorities and members of the
communities that they police (so-called ‘community policing’). It is implemented, and
communicated to frontline officers, through line management, and provides the context
within which frontline officers exercise their routine operational discretion in performing
their duties, discussed above.

The normative justification for recognizing discretion as an essential (and desirable)
feature of the exercise of police authority reflects concerns that overly rigid enforcement
of the law, without appropriate compassion in suitable cases, will lead to injustice.
Society may not feel that it is just, for instance, for a police officer to arrest or charge
a man for speeding who is exceeding the posted speed limit in his car because he is
desperately trying to get his wife to hospital in time to deliver her baby. Police officers
frequently encounter such situations, in which they are expected to exercise good
judgement and would be praised, rather than criticized, for exercising their discretion not
to apply the law in situations where it is technically applicable.

In the training that they receive, police officers are instructed about the kinds of situations in which such benign exercise of discretion is acceptable, and the kinds of situations in which it is not.
Another, more controversial, type of situation in which the benign exercise of discretion
(that is, discretion not to invoke the law) is commonly considered acceptable, is when such discretion is considered helpful to the police service itself in its efforts to enforce
the law. A good example of this is when, in return for information about more serious
offending or offenders which it could not otherwise easily obtain, a police service
exercises its discretion not to charge an informant who may themselves have committed
an offence. This kind of discretion is highly controversial because it can so easily lead
to abuse and corruption, and for this reason police services typically have very detailed
and strict protocols for the handling of informants.”

Discretion

Discretion

Definition of Discretion

Discretion and Policing

Distinctive Features

Evaluation

Resources

Further Reading

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