Discretionary Use Of Police Authority

Police officers enjoy the much-envied monopoly of instruments of force. Only a state armed force has recognized legal rights to wage violence against the citizenry and employ all manner of force in the name of maintaining law and order. A look at a number of police actions leaves a doubt whether all might be provided for by the law. The police are permitted to use a certain level of force in enforcing the law and while making arrests and maintaining order.
The force used in this case is supposed to be reasonable; this reasonableness is not measurable and is at the discretion of the police or to a large extent to the court of law. In their day to day activities, police follow scripted rules and guidelines, guided by the law and their professional ethics, but rarely is all that they do contained in the written codes. Majority of what they go through depends on their personal intuition and judgment of what is right.
They are supposed to make a split judgment on the most appropriate decision in a certain situation, whereas such a provision may not be provided in the rules. The legality of such decisions sometimes is in question. It is not possible for the law to contain all the likely scenarios that the police can come across. The unpredictable nature of their work makes it hard to do that and it is only through effective training and a high level of discipline that proper judgment and sound decisions can be made; even in an extremely uncertain environment.

This however is an ideal situation and most of the time police officers have been noted to go to the extreme ends and making unreasonable decisions that are inconsistent with the publics’ expectations. In carrying out their duties, the police sometimes seem to be following their own discreet codes, codes that cannot be fathomed by civilians. Their rules are paternalistic in nature and may not be in line with the spirit of democracy. This and more is what this paper hopes to look at. It will scrutinize the police use of discretionary authority and note whether sometimes this authority is extremely and unreasonably overstretched.
Discretion can simply be referred to as that power or freedom accorded to individuals, or the police for that matter, to make judgment or decisions that they think are appropriate to a certain situation. It is the judgment of police on how to bridge the gap that exists between what the stipulations in the law contain and the challenges on the ground (Seumas M. , et al, 2006). The laws governing the police forces are not specific and should under no certain terms be specific. They leave gaps and spaces that can only be filled through individual intuition.
Most of these laws are said to be ambiguous and clearly requiring the reasoning of a well trained police officer to enforce (M. L. Dantzker, 2005. ). While it is prudent to say that almost all state or public departments and agencies use discretionary powers, it is in the policing agencies that they are most often applied and with major consequences. It is the legislature that determines the nature of laws that exist in a certain region, but it is up to the people on the ground, who are the police officers, that determine how those legislations are to be enforced and in what manner.
The law sometimes is strict on certain issues but it is up to the law enforcement agents in touch with the public to make it more flexible while at the same time making it less or more punitive depending on the situation. Question stands on whether such discretion cannot be abused. For example whereas the law categorically prohibits the arresting of individual on mere suspicion with no form of evidence, the police in most case will arrest people and claim it is on ‘reasonable grounds of suspicion’. This suspicion is based on subjective judgments of a person’s behavior at the moment.
Some officers are trained to believe that if one moves away hastily after seeing the police, he or she is likely to be guilty of something. This is what some would call ‘behaving in a suspicious manner’. This might not be true as there is no law against hastening ones pace upon coming across the police officers, but the forces discretionary powers allow them to hold such person and search him or her. “Reasonable suspicion” becomes an ambiguous term that is hard to define or quantify. It is not measurable and at the same time not disputable.
Interestingly though, contrary to what one would expect, discretionary powers in the police force decrease as one goes up the ladder while increasing down the cadre and hierarchy. This is because the officers up in hierarchy rarely come face to face with the public. Theirs is mostly limited to the boardroom meetings, strategy laying and maybe dealing with the ever-inquisitive media. This is not to mean that they top chiefs do not possess discretionary powers. On the contrary they do, but it is the lower ranking officers that have more opportunities of exercising this authority due to their daily contacts with the pubic.
This discretionary authority turns them into policy makers, only this time it is at the ground or street level. This is because the most important decisions are made at the point of contact or encounter. It is here that the police officers make the most vital decisions regarding the step to take after a wrong has been committed. Depending on the weight of the crime, the officer on the ground will know what action to take. He might decide to warn, book or jail depending on the gravity of the situation. This may not be what the law has provided for.
It is these powers to make such discretions that raise tension and discontent from the public, as they lead to discriminate and disproportionate application of laws. The general characteristic of discretionary authority is that in one way or another it has to be applied selectively. The prejudices that are held by the society have also been imported into the police force and must in a way impede upon the judgment of the police officers especially when they are exercising their discretionary authority.
To most people in today’s world, where vehicles are prevalently used as the single most preferred means of mobility. Peoples’ contact with the government is through the police. Interactions with the citizenry is most likely to be with the traffic police officers, and it is them that are likely to make decisions based on their own judgments. This most likely emanates from the fact that most of the traffic offenses committed by motorists are but of small consequence, they are minor and one can escape with a verbal warning.
The traffic laws prohibit over speeding or any other reckless driving that might be injurious or inconveniencing to other motorists. The patrol officers are always on the look out for such characters and can flag down any motorist they suspect is under the influence of alcohol. Police here use their discretionary authority in making the kind of decision to be taken upon a motorist who commits such an offense. A traffic offense that is not serious would carry a number of penalties ranging from citing, booking or ticketing in accordance with the dominant traffic policy.
Most people would like the law enforcement officers make lenient decisions in regard to such minor offenses and make hard stances on the major crimes such as kidnappings and bank robberies. More police discretionary powers should be extended towards passing lenient judgments on traffic offences rather than creating friction on their relationship with the motorists (Peak, K. J. , 2006). Most police agents have strict laws and policies in relation to traffic rules and tend to have punitive attitudes towards these offenses.
Most traffic officers end up citing motorists rather than letting them go off with verbal warnings. This is the ethical and professional dilemma facing most police officers, their discretionary authority not withstanding, even where the law is very clear on traffic offenses and the nature of penalties imposed. This how the law is, it is supposed to be comprehensive and touching on almost everything. However, the scarce resources allocated may not cater for this. The meager financial resources cannot facilitate the strict following of the law to the letter.
If all the provisions of the law are strictly adhered to, the courts would be clogged with cases and jails would be overcrowded. It is hence important that the police officers use their discretionary powers to sort these people out (Seumas M. , et al, 2006). As mentioned before, due to the subjective nature of the police duties, selective application of discretionary powers is probable and very common. Racial, religious, gender and ethnic profiling becomes real. For the traffic police officers, it is very likely to let of an elderly person off with over speeding than with a teenager or a middle age.
This is because it is not common to see aged people over speeding; the officers will tend to believe that there has to be a reason for such an action. The provisions of the law on over speeding not withstanding, most police officers are bound to make the same decision. A study of police application of discretionary powers also would reveal that it all depends on the behaviors and attitude of the subject under consideration. For those who are very confrontational and rude when addressed by police officers over their mistakes, they might not enjoy any leniency.
Those who are orderly and remorseful of their actions are likely to receive a lighter treatment. Police discretionary powers are likely to be applied favorably mostly when the subject displays a sign of respect. These powers may also be extended to the unpopular laws in the society. Police would shun taking action against offenders of some minor offences. This is if there has been a public uproar against such laws. They would not want to be dragged into a row, and hence opt to turn a blind away to such offenders.
There are exceptions however to this; no matter how unpopular some of these laws might be, discretionary powers might have applied harshly. The issue of police discretionary powers is dogged with controversy. There are those who claim that these powers are okay as they give the police an opportunity to apply their own judgment in meting out justice rather than waiting for the strenuous and elaborate process of the law. It gives the law a human face and gives the police a chance to act with compassion. The police sometimes are faced with situations where if they strictly adhere to the laws, catastrophes might happen.
A police arresting a driver for over speeding might result to a implication if for example such a driver was rushing a patient to hospital. It is important that discretionary powers be extended to allow police officers make decisions that are appropriate to a specific situation at hand rather than blanket application of the law just because the stipulations state so. This leniency in the discretionary powers is also a kind of public relations. As afore mentioned, contact of the public and the police in today’s world is mostly limited to the traffic.
Most people’s attitudes and perceptions of the police might to a great extent be shaped by this limited interaction. Any harshness towards motorists may be interpreted to mean that the police are all harsh and inconsiderate. The law contains a mesh of provisions that cannot all be applied, as most likely they would turn the citizens into slaves of rules. Discretionary powers are hence important to sort these laws out and enable the police to make the best decisions possible at that instance depending on the prevailing circumstances (John Blackler, Seumas Miller, 2005).
However, opposition to discretion emanates to the discriminate application of justice. As said before, it is a highly subjective practice that embodies the incorporation of personal and emotional values. Issues such as racism, ethnics and other discrimination based on creed, socio-economic statues and gender will come into play. Personal prejudices might have an upper hand when a police officer is making the decision in regard to who will get what punishment, who will get a booking and who is to be released. A motorist may get away with over speeding, or driving under the influence just because he or she looks innocent or is remorseful.
Police have been known to apply leniency to people who look remorseful after giving them a stern warning and arresting those that they think are disrespectful and self-righteous. This however should not be a criterion to be used while deciding who is to booked and who is to be let go. The law is clear on this and should be applied non-selectively. Allowing the use of discretionary powers by police officers is jut but breeding ground for corruption and bribery. Police officers are likely to take in bribes from criminals or petty offenders so that they may look the other way and apply discretionary powers.
It may also lead to a breeding ground for more hardened offenders. A motorist who has escaped once with an over speeding offense may make it a habit of repeating the same mistake and preying on officer’s leniency. People might not be vigilant enough in regard to the petty offenses because there will be a likelihood of them getting away with such mistakes. A high number of people would be in favor of controlling the use of police discretionary authority, mostly as it is likely to be abused by police officers.
This emanates from the image that most people have of the police; an image imparted through their interactions with the police, who most of the time are found to hostile and unreasonable. The police are not trained in psychiatry and should not base an individual’s guilt on ones behavior, remorse or lack of it thereof. It should be left to the court or tribunals to pass a verdict. If the law states that a certain offense is finable then be it and this fine should be applied across the board and not selectively. The police are governed and bound by the law and all its comprehensive principles.
The law is dynamic but it is also very clear on many issues. It is predictable and outcomes in many cases are certain. The same case should apply to the police force; their decisions should be predictable and consistent. The police force is in the executive arm of the government, its function is to implement the laws passed by the legislature, allowing it to make decision regarding the law is superseding the authority and can be a recipe for chaos. Unlimited use of police discretionary powers can to a greater extent be said to be undermining democracy.
Laws under the tenets of democracy are a preserve of the legislature which is just but a of group of individuals representing the citizenry, who are democratically elected. The police represent the executive and in most cases will be furthering the sitting government’s interests. They do not consult before passing the extra judicial pronouncements. The public has no room to scrutinize these decisions. Had there been an opportunity to review some of these discretionary powers, the system could work out efficiently (John Kleinig, 1996).
However, as much as the public may wish to demonize the use of discretionary authority by the police, they are more than necessary. The law, despite being broad, is not comprehensive; it does not provide solutions to all the possible case scenarios likely to be faced by the police. Discretionary powers by the police come into play to bridge the gap between what the stipulations contain and what the situation on the ground is. The bone of contention is the likelihood of these powers being abused and applied selectively to favor a certain group of individuals over others. There is no provision in the law on how these powers are to be utilized.
They are mainly subjective and depend on a specific officer’s personality and orientation towards many issues in life. It would also depend on the nature of the mood of an officer at the time of the incident. It is unpredictable and lacks in consistency. It is apparent though that these discretionary powers cannot be done away with completely, effort hence should be geared towards curtailing them to a level that is acceptable to the public. Police should be well trained to ensure that their use of discretionary authority does not deviate from the law and is not applied discriminately.
John Kleinig, 1996. The ethics of policing. Cambridge University Press.
John Blackler, Seumas Miller, 2005. Ethical issues in policing. Ash gate publishing Ltd.
Seumas Miller, John Blackler, Andrew Alexandra, 2006. Police ethics. Waterside Press.
Peak, K.J., 2006. Policing America: Methods, Issues, and Challenges. 5th Edition.
Pearson Prentice Hall: Upper Saddle River, NJ.
M.L. Dantzker, 2005.Understanding today’s Police. Criminal Justice Press.

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