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Are Laws Being Enforced?
by Michelle Calderon, staff writer for AnaiRhoads.org
Discretion often referred to as "the hole in the doughnut" theory is practiced by Police Officers "where the law runs out": meaning when there are no natural law specifications (Anonymous, 2004). Discretion involves the ambiguous area in the middle of policies and procedures (where the rules do not apply), which often are practiced through the officer's individualized judgments and choices. However, police officers must be more than competent at adapting as well as applying the rules to actual situations in a rule-bound way. Discipline, foresight, the ability analyze people, tactfulness, tolerance, empathy, and being discreet are all necessary elements in making good decisions.
Discretion is a privileged license which gives police officers tremendous amount of liberty. Discretion gives permission to act as a free and equal agent, and using that permission in extending the rights and duties of policing. At the same time, discretion can sometimes mean going against the rules, disobeying superiors, and be less than perfect all the time. Such a license obviously involves accountability. There is a lack of agreement for the types of actions committed by police officers in controlling crimes.
AREAS OF DISCRETION: Actions, Non-Action, and Abuse of Power
(1). Domestic Violence: Laws have been amended that are complex:
- Victims do not file complaints.
- DV is common within sub-cultural groups and seen as a private matter.
- Arrest may cause loss of valuable public support or unduly harm status in the community.
- Arrest of the breadwinner would hurt the family.
- Male officers would side with the male assailant.
- Arrest increases violence among people unemployed or the poor.
- Arrest deters violence in cities with higher proportions of whites and Hispanics reside.
- Arrest deters violence in the short run, but escalates violence later in cities with higher proportions of blacks
- A small portion of violent couples are responsible for the majority of calls.
- Offenders who flee before the police arrive are deterred by arrest warrants while offenders that stay will most likely offend again.
*Domestic Violence involves many factors that make enforcement very difficult. Acting on bias and disregard for the victim is improper. However, an officer has a duty to enforce the law and put the offender(s) in jail.
(2). Drunk Driving: There are three kinds of officers who do make DUI arrests:
"(1) Rate busters; (2) moralists, or drunk-haters; and (3) bounty hunters, who wish to
collect the overtime pay. The following are reasons why the police would NOT make
DUI arrests:" (Anonymous, 2004).
- Laziness, visibility, court dates, paperwork, unwilling to work overtime by the officer
- Preferential treatments of the officer
- Acceptance of bribe
- Officer opinion that DUI is not serious or a low priority
- Lack of faith in utility of arrest: prefer to follow the person home or have someone else drive.
- Social service resources as in detox centers allow officers to use non-arrest
* DUI’s cause many deaths. There is no excuse for non-action regarding this matter. Non-arrest or non-enforcement of the law against offenders is unacceptable.
(3) Mental Illness: "Some 8-11% of police calls for service involve the
mentally ill" (Anonymous, 2004). The following are problems associated with this:
- An officer who encounters an irrational person creating a disturbance has three choices: transport to a mental institution, arrest, or handle the matter informally.
- Conflict over the proper uses of available public facilities.
- Public demand for actions that is only marginally criminal.
- Social service resources in mental health facilities, allow officers to use non-arrest.
*Complaints regarding criminalization of mentally ill persons are of concern due to lack of medical attention as well as the treatment they may receive in jail. Failure to protect the mentally ill from harm is a negligence of duty.
(4) Use of Force: The amount of force to be used by police officers is usually
described in police manuals as no greater than necessary and reasonable in a given
situation. The following factors are also worthy of consideration:
- Police officers' rights to protect themselves
- Precedent set by the past behavior of police officers.
- Need to build security access for future police officers.
- The presence of weapons or acts of resistance often results in police overreaction.
*Police officers have beaten and shot resisting suspects; they have misused batons, chemical sprays and electric shock weapons; they have injured or killed people while placing them in dangerous restraint hold; unarmed suspects have been shot while fleeing from minor crime scenes; the mentally ill or disturbed people have been subjected to excessive force in circumstances where they could have been subdued without use of lethal force; victims have been shot at, kicked, punched, hit with a baton many times even after they have been apprehended or disabled.
(4) Vice Crime; Vice involves victimless crimes against the public order (e.g., prostitution, nude dancing, gambling, pornography, illegal sale of alcohol, narcotics). Vice enforcements are uneven, sporadic, and ineffective:
- The laws are almost unenforceable.
- Investigation leading to conviction requires complaints, and the activity being Commercial and conspicuous.
- Most police departments cannot afford special vice units, and such investigations are costly and time-consuming.
- Vice enforcement encourages illegal police activity, like wrongful searches, planted evidence, entrapment, corruption, and organized crime infiltration.
*The opportunity for financial gain is readily available. But strong ethics should prevent such event from occurring. Leniency towards police offenders is a problem.
(5) Application of the Law often becomes a catalyst for discrimination: offender variable.
- Not everyone apprehended of committing a crime is arrested
Police take adult complaints more seriously than those made by juveniles.
- Arrest and force is more likely to be used against African Americans.
- Citizens who show deference toward police are treated more leniently.
- People in middle to upper income brackets receive more and better service
Gender and mental health status affect how police handle many incidents.
- Police sympathize with and only lecture some offenders.
- Police give serious matters more attention than minor matters.
- The type of property involved in a property crime determines police response and investigatory effort.
*This is the biggest area where discrimination charges result from because often, the ones chosen to be arrested complain of the situations where some suspects were not.
(6) Traffic Enforcement:
- Police has the power to ignore, issue citation, a warning, or make an arrest.
- Police action is based on many factors such as type of citation, demeanor of the suspect, mood and attitude of the officer.
- Police tend to become strict when the city needs revenue.
- Complaint regarding unequal treatment of citizens, interference with due process, reduction in deterring traffic violations.
- Police believe the community wants lenient or lax enforcement.
*Preferential treatments of certain offenders would qualify as abuse of power and a cause for upheaval among the community. Discrimination over the majority of enforcement among minorities is not easily welcomes.
(7) High-Speed Pursuits:
- The police have final decision whether to get involved in dangerous pursuits.
- Initiating or ending a pursuit is difficult.
- The use of force to stop a car is very dangerous.
- Previous use of guns to fire warning shots or try to shoot the felon has now been prohibited.
*The safety of the environment is at stake. Minimal errors can result in death or major injuries that involve law suits.
(8) Shooting the Gun:
- Training is a very important part of the decision-process.
- Police give serious (crime) matters more attention than minor (non-crime) matters.
*Individuals vary in how they react to danger. Shooting a gun on a suspect while their backs are turned or with no weapons is an abuse of power. Over shooting on a suspect is also unacceptable.
(9) Provisions of the Law: Inequality in services from the police.
- Government subsidies, size and structure of the department controls individual discretion.
- Police tend to become lenient when the court/correctional systems are clogged.
- Police believe other duties are more important.
- Police trade non-enforcement for other favors, deals, or to gain informants.
- Police perception that politicians are making symbolic statements, expressing an ideal, or appearing to be tough on crime.
- Some statutes are full of ambiguity, and some penalties police think too severe.
*Although enforcement of the law must be upheld, the police often have many responsibilities that entail urgency over certain situations, consistency and fair treatment of the law should be a priority. Abuse can take place when an officer has trouble being true to his duties or error in judgment.
(10) Hate Crimes:
The primary law enforcement action regarding hate crime is documentation.
Police have widespread discretion in deciding which acts, which individuals, and which groups in the community are minor nuisances or community threats.
*The police are supposed to be accustomed to protecting every group's rights, regardless of belief or ideology but that does not always happen.
In summary, police discretion can be used for good or bad. Discretion is bounded by norms with effectiveness depending upon whether the decision can be put to good use. The difficulty is enhanced by the fact that sometimes the public wants non-enforcement, and other times they want strict enforcement. Certainly if the sources of discretion only included individual police officer prejudice, whim or caprice, this would be completely wrong. The options an officer has when using discretion often entail other factors. While departments use the explanation on the validity of decisions as policy being fully enforced, we know from the situations, alternatives, and motives mentioned above that this is in fact, a myth that has been towards the appeasement of the community. There are no policies that would give police officers directions in how to react to the inconsistencies as well as consequences of their actions.
To counter-act the myth of full enforcement, there are two policy methods proposed: Actual Full Enforcement and that of Selective Enforcement. “Actual Full Enforcement would qualify arresting all suspects involved or caught in the act of crime” (Dantzker, 2003, 223). While idealistic, Active Full Enforcement is merely another form of the myth of full enforcement which is unrealistic. Such restrictive policies tend to be big rule books that specify as many situations as possible and contain severe restrictions on officer judgment. “Selective Enforcement and admitting to its use is much more realistic and involves being candid about the organizations actual practice of enforcement” (Dantzker, 2003, 223). This would only produce public scrutiny and could produce legal implications or it could merely list the most severe circumstances on its policies. So rather than just admit to Selective Enforcement, the organization might be better at just “sharing its policies to the public” (Dantzker, 2003, 224). Judgmental policies will tend to only give general guidance that is generic to all circumstances. Explaining to the public how to handle certain situations might better alleviate the public in realizing how and why the police might respond the way they do.
References:
Anonymous. (2004). Police Discretion. Retrieved August 12, 2005, from:
link
Dantzer, M. L. (2003). Understanding Today’s Police, Third Edition. (223-224).
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