Transcript Discretion & Police Behavior

Police Discretion
Discretion as Decision-making
1. By a criminal justice official
2. Official action (formal or informal)
3. Based on individual’s judgment about the best or
proper course of action
Discretion is not limited except by law and
administrative policy
Does discretion Increase/Decrease as you
move up the police bureaucracy/chain of
command?
Police Discretion
• When police see something unusual, two discrete
decisions:
• 1) Whether to intervene?
• 2) How to intervene?
• Start to finish, in a routine traffic stop: 770 different
combinations of actions (Bayley & Bittner, 1989)
Discretion
• Another definition – more useful:
The decision not to invoke legal sanctions when
circumstances are favorable to them. e.g., legal
basis for an arrest is present.
• Examples — teens drinking in a park; traffic stops;
arrest decisions; use of force
Aspects of Police Discretion
• Street-level Bureaucrats (Lipsky 1968)
– Officers exercise most discretion
– Officers as gatekeepers
– Officer behavior determines how the law is experienced
• Positive Uses of Discretion
– Proper exercise of professional judgment
– Effective use of scarce resources (efficiency – gatekeeping is needed)
– Individualized justice?
• Potential for Abuse of Discretionary Power
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Discrimination – decisions (not) to invoke law
Denial of due process
Police-community relations problems
Poor management of personnel and planning/policy
Points of Discretion
Not limited to arrest; throughout the police repertoire of
legitimate action & department rank
– Patrol discretion
• Pursuit
• Making stops, questioning, frisking
• Arrest
– Order Maintenance/Peacekeeping
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Domestic disputes (mediation vs. arrest)
Mentally Ill
Drinking
Juveniles
– Investigation
• Seeking a search or arrest warrant
• Ending an investigation
– Organizational Policy Decisions
• Defining law enforcement priorities: traffic; crackdown targets;
tolerance for other kinds of activity
Sources of Discretion: where does it
come from?
• The Nature of the Criminal Law
– Substantive criminal law is vague
– Conflict b/t law and public opinion about wrongfulness of
behavior (traffic, drinking, etc.)
– Appropriateness of legal response to social problems
• Work Environment of Police
– Patrol is low visibility; Little direct supervision
– Results in significant Autonomy
– Police are concerned first & foremost with establishing
respect
• Limited Resources
– “Full enforcement” is not realistic or efficient (e.g., length
of time committed to an arrest)
– Discretion is efficient (officers manage time, resources,
energy)
J. Goldstein on Discretion
• Total Enforcement
– Police respond to every crime. Only a theoretical possibility.
– Impossible due to constitutional restrictions (privacy protections): Big
Brother imagery. This is known as the area of no enforcement
• Full Enforcement
– The investigation of every disturbing event the police become aware of and
suspect is a legal violation
– Determining that a law has been broken, an attempt to discover the
offender(s)
– Presenting all the information to the DA to determine appropriate action (plea,
trial, dismiss)
– Full enforcement is the expectation of the criminal law (and arguably the
public’s view of how police should do their job)
– Realistic expectation for police? Why?
• Actual Enforcement
– Determined by actions not to invoke the law
J. Goldstein on Discretion in the CJS
Discretion & Police Behavior
Following up on Goldstein’s distinction b/t
Full enforcement & Actual enforcement
Donald Black:
How often do police make an arrest with complainant
and suspect present?
• Felony situations - 58%
• Misdemeanor situations - 44%
Bottom Line:
Discretion NOT to invoke the law is common in policing
Discretion & Police Behavior
Brooks (D&A Ch. 5)
Factors related to discretion:
1. Organizational perspective & policy
guidelines (including police role
2. Community factors (community demand)
3. Situational elements (legal and extra-legal)
4. Officer variables (attributes, attitudes, etc.)
Discretion & Police Behavior
Factors related to discretion:
Organizational variables
Powerful influence on discretion.
Discretion is most effectively controlled through
policy
–Bureaucratic nature: Purpose of procedure—to
guide and direct behavior.
–Bureaucratic principles can backfire, contributing
to secrecy. Over-bureaucratic departments: too
much punishment alienates officers.
–Informal organizational culture may be more
important than policy
Discretion & Police Behavior
Informal Organizational Factors:
Police Subculture
•Moral grounds of decision making drawn from
subcultural sources
•Emerges from daily practices (routines)
–Social control of territory
•Masculinity & Control
–Uncertainty: exerting control in “risky” encounters
–Marked by strong internal solidarity: Loyalty
•Code of silence
•Master status
–Loose Coupling: Ends justify the means
•Bad guy focus – policy & law may get in the way – moral authority
Community factors
• Community or Ecological Demand
– How is discretion exercised in high crime areas?
– Klinger (1997) argues increased tolerance
thresholds in high-crime (urban) beats
• Neighborhood variables
• Minority neighborhoods:
– more reports
– more arrests
– more requests for police intervention
• Urban vs. suburban vs rural neighborhoods
• Low income neighborhoods
– More arrests
Discretion & Police Behavior
Factors related to discretion:
Situational variables take 2 broad forms:
1. Legal Factors
– Behavior constitutes a legal violation?
– Seriousness of the violation
– Availability of evidence
2. Extra-legal factors
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Factors beyond the legal circumstances of the
situation: Suspect, Victim characteristics
Discretion & Police Behavior
Factors related to discretion:
Situational variables.
•Mobilization of the law. Proactive (by police) encounters
more antagonistic. Less likely to be supported by citizens.
Police are consequently likely to treat citizens more
harshly. Potential for escalation.
•Demeanor and attitude. Disrespectful people more likely
to be arrested. (Black - B&B p. 184)
•Attitude of the complainant. Arrests more likely when the
complainant wants an arrest.
•Race. Police more likely to arrest or treat minorities
harshly. May be due to (1) minorities more likely to resist
authority, but (2) such an attitude may stem from a history
of mistreatment.
•Gender.
Police Behavior
Factors related to discretion:
Situational variables.
•Victim-complainant relationship.
If close, police less likely to arrest (cf. rape). And police
more likely to take action if complainant wants them to.
•Type of offense.
Police more likely to arrest in felony situations. Commonsense arrest should be based on probable cause, not
seriousness. Domestic Assaults
•Location.
Stronger response in public settings.
•Presence of others.
Presence of other officers—their expectations. Two-person
units: more likely to treat suspects harshly. Wolfpacking at
traffic stops.
Police Behavior
Factors related to discretion:
Individual Officer variables.
•Education, age and experience. Younger officers tend
to be more punitive and aggressive. Quality of older
officer’s work higher.
•Gender. Some evidence suggests that female police
officers are less aggressive. Women less likely to use
force.
•Career orientation and family situation. Walsh (1986)
career-oriented officers more aggressive, increase
chance of being promoted.
•Race – some evidence Black officers more likely to
arrest
Explanations of Police Behavior and
the use of Discretion
•UNIVERSALISTIC Perspectives: look at how
officers are similar:
–Sociological perspective: emphasizes the social
context in which officers are hired, trained, and
police citizen interactions.
–Psychological perspective. Concerned with the
“police personality.”
–Organizational perspective: departmental factors
play an important role in police behavior.
–Police culture: police work characterized by its own
occupational beliefs and values.
–Subculture: police work has values imported from outside
society.
Discretion & Police Behavior
Predispositional theory (Psychological approach):
Police behavior is determined primarily by
characteristics, values, and attitudes of the
individual prior to job.
Focus becomes the police personality
DA14 (Breeding Deviant Conformity):
Authoritarian Personality values
•Conformity (in values, appearance, conduct)
•Rigid – black/white view of the world
•Support status quo
Discretion & Police Behavior
Predispositional theory (Psychological approach):
Police behavior is determined primarily by
characteristics, values, and attitudes of the
individual prior to job.
•Rokeach, Miller and Snyder (1971): police hold similar
political values and share values of authority with
professional fulfillment.
•Caldero (1997). Extension of R,M&S Central principles:
–Police have distinctively different values from others
–Values are similar to the groups from which they are recruited
–Largely unaffected by occupational socialization; Police
socialization has little impact on values
–Values are stable over time
–Regardless of race-ethnicity, values are similar
–Education has little impact on values
•Crank and Caldero (1999) Screening processes insured
that officers held similar values regardless of background.
Discretion & Police Behavior
Socialization Theory:
Individuals (police officers) are socialized
as a result of their occupational
experiences.
•Two kinds of socialization
–Formal socialization: results from the selection process,
training, and learning about policies and procedures
–Informal socialization: new recruits interact with older,
established officers
•Informal socialization may contradict formal
socialization “forget everything you learned in training”
•Thin Blue Line, Wall of Silence – reflects high degree of
integration within the rank & file police subculture
–Values loyalty and solidarity above other values
–Rule of law may conflict with Loyalty to Colleagues
DA14 Breeding Deviant Conformity
• Sociological Paradigm
– Emphasizes professionalism
• Anthropological Paradigm
– Emphasizes subculture
• Police WORLDVIEW
– Cognitive filter used to process info re: people,
events, places, ideology
– Emphasis on military, violence, danger
– Symbolic Assailants
DA14 Breeding Deviant Conformity
• Spirit of Police Subculture
– Ethos of Bravery
– Ethos of Autonomy
– Ethos of Secrecy
• Themes of Police Culture
– Isolation
– Solidarity
Police Deviance
Behavior that does not conform to the standards of norms
or expectations.
–Ethical standards: principles of appropriate conduct officers carry
internally. An expression of personal values.
–Organizational standards: formal and informal; from rules and
regulations, and from peer expectations.
–Legal standards: The laws officers are sworn to uphold, due
process establishes means officers can use.
–These can conflict with each other—e.g., formal dept. standards
may conflict with peer expectations.
–Barker and Carter (1994)
Deviance is a “generic description of police officers activities which
are inconsistent with the officer’s legal authority, organizational
authority, and standards of ethical conduct.”
Varieties of Police Wrongdoing:
•Deviance -- behavior inconsistent with norms,
values, or ethics
•Corruption -- forbidden acts involving misuse of
office for gain
•Misconduct -- wrongdoing/violations of
departmental procedures
•Favoritism -- unfair "breaks" to friends or relatives
(nepotism)
Most common Types of Wrongdoing:
Gratuities, Bribes, Theft, Internal Corruption,
Brutality (LAPD Rampart CRASH unit)
Models of Police Deviance
•Knapp Commission (NYPD 1972):
–Grass Eaters: Occasional , incidental, minor
–Meat Eaters: Committed to corrupt enterprises; Actively
pursue opportunities
•Larry Sherman: “Rotten Apple” vs. “Rotten Barrel”
(1) Rotten apples/pockets
(2) Pervasive unorganized
(3) Pervasive organized
•Barker & Carter:
(1) All the wrong reasons (Type I)
(2) All the right reasons (Type II)
Explanations of Deviance
• Questions to consider:
– How does someone attracted to uphold the law
become corrupted?
– Is power inherently corrupting?
– Multiplicity of Standards?
– Public Tolerance of Police Wrongdoing?
– The importance of socialization & the aspects of
police subculture that support police wrongdoing
• Persistence and prevalence of a wide diversity
of wrongful acts suggests that it is a systemic
problem
Discretion & Police Behavior
Socialization Versus Predisposition
Why does this issue matter?
•Community policing issue:
How to hire new kinds of officers.
–If socialization, managers will have to change the
organization.
–If predisposition, hiring practices have to be
changed.
Discretion & Police Behavior
PARTICULARISTIC Perspectives: concerned
with how officers differ from one another
Worden (1989): officers not psychologically
homogenous. Five ways in which officers differ from
each other.
(1) View of human nature. (Cynicism)
(2) Different role orientations. Crime fighters, problem
solvers, crime prevention
(3) Attitudes toward legal and departmental
restrictions. (Ends justify the means, lack of punitive
criminal justice system; idealistic)
(4)Officer’s clientele. Judges, MADD—can lead to
selective enforcement.
(5) Managers versus peer group support
Discretion & Police Behavior
Studies of Police Behavior
Police—Street-Corner Politicians (W. K. Muir).
Four modes of adaptation:
•Professional style officers. Compassionate and
comfortable with authority.
•Enforcers: use force when they have the opportunity.
•Reciprocators: compassionate but not comfortable with
authority.
•Avoiders: neither compassionate nor comfortable with
authority.
Discretion: Domestic Disputes
• Prevalence of Domestic Violence
– 1 in 6 relationships involve abuse annually
– 25-30% of all couples will experience a violent incident in their lifetime
– Women are much more likely to be victimized by people they know.
Consistent across class/race.
– Data is lacking b/c of failure to report domestic violence to the police
(50-70% of the time depending upon community)
• Women who report tend to be low income, working, non-white
• Middle class women more likely to rely on alternative means of support
• Most common reason for not reporting: perceived as a private matter,
followed by fear (retaliation)
• Concentrated in certain families (geography – hot spots?)
– Victim/offender relationship complicates police response to domestic
situations
Discretion: Domestic Disputes
• Police response:
– Historically, has been an area of tremendous discretion.
– Discretion as Not Invoking Law
Factors influencing decision NOT to invoke the law?
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Belief it is a private dispute
Officer judgment victim will not follow through
Legacy of past dept. perspective to avoid arrest
Arrest is work for officers
• Presents risks of injury
• Creates higher visibility of officer actions
– Police more likely to be batterers than the population as a
whole
Discretion: Domestic Disputes
• Response options include:
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Arrest – not so common
Mediation
Separation (physical) – police power is limited to enforce
Referral – police power is limited
No action
• Factors influencing decision to arrest?
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Severity of injury
Victim’s preference
Relationship b/t v/o
Suspect demeanor (hostility)
Discretion: Domestic Disputes
1970s Revolution in DV cases: Mandatory Arrest
• 1st attempts to control officer discretion
• Resulted from efforts to limit police discretion in the
courts on the grounds that ♀ were not receiving
equal protection under the law
– 14th Amendment
• (1984 Thurman v. City of Torrington, CA)
– Police response should be guided by citizen behavior, not
by the relationship of the parties involved
• Evidence that up to 90% of domestic homicides are
in HHs that police have already responded to a call
for service
• Mandatory arrest policies based upon premise that
arrest provides specific deterrence
Discretion: Domestic Disputes
• Does mandatory arrest deter future DV
– Minneapolis DV Experiment (Sherman and Berk 1982)
• Examined deterrent effect of alternative actions on Domestic Violence
– Arrest, mediation, separation
• Cases randomly assigned to each treatment
• Findings: Arrests produced lower rates of repeat violence
• Resulted in widespread changes in policy toward mandatory arrest for
dom. Violence
• Closer inspection revealed a number of flaws with the execution of the
experiment
• Results have not been replicable in other cities
• Why? Sample of recidivists; Abuse is normative in relationship; Arrest
alone is insufficient; disconnect between arrest and criminal sanctions;
interaction effect with social capital
– Preferred (pro) arrest has been adopted by most departments
• Other provisions have been developed: training in handling domestic
situations
– Officer response to such policies: generally prefer independence,
officer gender, perceptions of danger, civil liability (both ways)