One will find that it is very common throughout the country that virtually all of police work involves discretion, with the exclusion of mandatory arrests. Furthermore, it is not just the police officer who has to use discretion, but it is also the prosecutor deciding what charges to file or how the offender should be sentenced, and the judge who has the most discretion of all when it comes to setting the ultimate punishment at the culmination of the case. Therefore, it is unlikely that discretion is a myth. It simply must exist for the criminal justice system to function as is. Laws cannot be passed to cover every possible scenario, which makes the practice of using discretion necessary in law enforcement.
According to Maggs (1992, pg. 1), "Few issues in criminal justice presently arouse the public's attention more than how much flexibility and discretion the police should have. Police departments and their officers traditionally have had broad authority to decide how to perform their work, and most people simply have trusted that they will exercise their powers in a professional manner. Yet, acceptance of the traditional arrangement has diminished, perhaps more in the past year than ever before. Disturbing incidents of misconduct, incompetence, and unresponsiveness have suggested to many a need for closer control over individual officers and for external constraints on departmental policy-making."
There are a number of causes of discretion that should be taken into consideration. They are commonly grouped into three categories: offender variables, situation variables, and system variables. There are stern but true facts that surround each of these variables (APSU, 2007).
The first group is offender variables. Juvenile complaints are taken less seriously than those made by adults. African Americans are more likely to receive excessive force or be arrested than other races. People who are polite and cooperative with police are treated better by them. Better police service is given to individuals with middle to upper income levels than other those in lower income brackets. Police also tend to handle situations involving individuals suffering from mental illnesses differently. Gender plays a role in how individuals are treated by police. Only some offenders are lectured and sympathized with by police (APSU, 2007).
The second group is situation variables. Matters involving crime are taken more seriously by police than matters not involving crime. Police often overact to the presence of weapons or to resistance by an offender. Police actions are also affected by the type of property that is involved in a property crime and their decision whether or not to pursue any investigation on that crime. If a police officer initiates an act versus a citizen, it is more likely to be acted upon. When it comes to vice enforcement, visibility of the vice is the major factor in acting upon it. When the media, an audience, or witnesses are present, the police are far more likely to behave more bureaucratically than they would otherwise (ASPU, 2007).
The final category is system variables.