Several myths, such as an inevitable abuse of power, are unsupported by the research. The main causes of police discretion are offender variables, situational variables, and systemic variables. The exercise of police discretion arises in many situations, such as domestic violence and juvenile delinquency, and can often lead to positive resolutions. Discretion is a valuable part of police work.
The issue of police discretion, while a seemingly natural aspect of the duties of a law enforcement officer, is a topic which generates much debate. Historically, the concept of police discretion was thought to be associated with police corruption and with an "extralegal" use of police power (O'Connor, 2005: np). Indeed, the recognition of police discretion as a legitimate aspect of police duties was not formally recognized until 1956 when it was formally identified and discussed by an American Bar Association study. This revelation, that the police did in fact use discretion in the course of their duties, generated a substantial amount of controversy: "When it was finally exposed, people like the American Friends Service Committee (1971) called for its abolishment, and police administrators sought a clampdown on discretion (administrative rulemaking)" (O'Connor, 2005: np). In the beginning, though police discretion was an integral part of daily police work, it was viewed with suspicion.
A more modern view posits that police discretion is a valuable and necessary part of police work. To this end, calls for the elimination of police discretion have been replaced by proposals to more carefully define when and how police officers should use discretion. This modern view operates on the assumption that police work is often complex, that situations are rarely neat and simple, and that discretion results in better police work than a mechanistic application of the law. As noted by a National Institute of Justice Research Report, "Each tactical choice by the police, each citizen's response, counter responses by each, and changes in other variables in the context (for instance,
intervention of strangers) create a fluid, ever-changing encounter" (1997: pg.35). This essay will define what is meant by "police discretion", a number of common myths associated with the concept, and the real-life sources of the need for police discretion. The essay will then present ten practical illustrations of police discretion in operation in order to compare situations in which discretion is used appropriately and situations in which discretion very well might be abused.
Police Discretion: Definitions, Myths, and Sources
Discretion means many things and encompasses a tremendous variety of different situations. From a theoretical point of view, it has been referred to as the making of decisions where the law is not clear, where the police officer has alternative courses of action, and where a cost-benefit analysis cautions against the rigid application of the law. Some scholars have defined police discretion as judgments made within the realm of a "regulated autonomy" (De Lint, 1998: pg. 2) and others have characterized discretion as a police officer's role as a public servant whom is sworn to balance the intent of the law against the interests of