Useof Force and Discretion in Criminal Investigations
Useof Force and Discretion in Criminal Investigations
Inlaw, police discretion is the ability of law enforcement officers to make decisions at the scene of a crime. In other words, theofficer decides whether to arrest a person, issue a warning, or writea ticket after arriving at a crime scene. For instance, if a policeofficer pulls a motorist over for a traffic violation, such asrunning a red light, he/she has the choice of warning or issuing aticket to the offender. Nevertheless, the use of discretion isusually limited to minor infractions Côté-Boucher (2016) explainsthat minor offenses can be pardoned. Force, usually in the form ofarrests, is the most common measure for serious offenses such asfelonies — in case of a felony, law enforcement officers arecompelled to arrest the culprit on site. According to the law, forceoften refers to the effort required by the police to elicitcompliance by an unwilling suspect. Essentially, the use of forceduring arrests is usually allowed under certain circumstances, suchas when defending another person or group, or in self-defense. Theuse to kill directive, which is a form of forceful policing, is apopular way of dealing with terrorists. For this reason, James,Klinger, and Vila (2014) assert that force is a vital part of lawenforcement. However, there is no universal standard for how muchforce officers should use and when.
Overthe past few years, there has been a discourse about which betweendiscretion and force is most suitable for police investigations andarrests. Critics of discretion argue that force is necessary in orderto punish offenders they propose that discretion is too lenienthence ineffective. Nevertheless, the reality is that prevailingresearch shows that discretion is the most preferable approach topolicing between the two. This paper evaluates the levels ofdiscretion by the police, its advantages, and criticisms, and thedisadvantages of force.
Levelsof Police Discretion
Fundamentally,discretion is applied throughout the entire police system from thehighest levels of the hierarchy to the lowest ones. At the top of thechain of command, discretion is important for deciding which sectorsof crime need the most urgent attention as well as the bestinitiatives to use for the agenda for instance, discretion isimportant for developing policies that target various crimes. Forinstance, discretion is essential for determining the various ways ofdealing with traffic infractions (Nowacki, 2015). In the middlelevels of the police force, discretion may be used to address crimesor offenses in particular regions of jurisdiction. Overall,discretion applies throughout all aspects or levels of policing. Someof the departments in policing that exercise discretion most are thepatrol and detective departments.
Notably,police discretion is mostly practiced in the patrol departmentinherently, this is due to the fact that this sector deals with ahigh number of infractions committed by cyclists, pedestrians, andmotorist. For instance, discretion is suitable for dealing with anindividual who crosses the road without using a zebra crossing. Sincemost of the violations that the patrol department deals with areminor, discretion is useful as it helps in dealing with the trivialmatters quickly, instead of engaging the judicial process, whichwould be time-consuming and cumbersome.
Detectivesalso need a great deal of discretion in their investigations in orderto ensure that justice is served. Inherently, justice necessitatesthat all people have access to equal opportunities of therepresentation and protection of their interests. Correspondingly,every person has a right of their harms and interests to beconsidered by the police this is where police discretion comes in.In this regard, it is the job of a detective to use discretion todetermine whether there was a crime or otherwise, if there is a needto conduct investigations, and how soon to conduct them. In asimilar, manner, the U.S. Supreme Court works using a discretionaryreview this means that it chooses which cases to listen to and whichnot to evaluate. Essentially, the use of discretion allows detectivesto interpret the law and relate them to different facts and clues ina crime scene in a manner that makes sense to the victim. This isimportant due to the fact that it allows investigators to determineand apprehend culprits, as well as because it allows the victim toreceive justice.
Advantagesof Police Discretion
Discretionallows police officers to make competent decisions duringunpredictable circumstances. In essence, discretion demonstrates aform of independent thinking among police officers, allowing them toapply regulations and rules the way they should apply to localcircumstances. This is unlike other disciplined forces such as thearmy, which necessitate a strict adherence to rules, impedingindependent and situation-specific thinking among police officers.Failure to carry out orders religiously is considered insubordinationand punishable (Meltzer, 2014). Essentially, this is important foravoiding unfair arrests or punishments, especially in specialcircumstances. For instance, assuming a driver was in a traffic jam,but his passenger got a random heart attack and the driver shifted tothe wrong lane in order to access the hospital faster, a policeofficer can choose to issue a warning to the driver, instead ofarresting him for a traffic violation. Inherently, this leniency canarise from the fact that the scenario that led to the infraction wasunpredictable.
Discretionalso increases the courage of police officers in making personaldecisions, contributions, and respecting the conscience of otherofficers even if the superior officer revokes the decisions later on.Inherently, this is due to the fact that discretion encourages policeofficers to make personal contributions, judgment calls, individualsolutions, and exercise individual autonomies. In other securityforces, officers are expected to follow the orders of their superiorsblindly, even when they do not agree with them lest they facedishonorable discharges. Correspondingly, this can weigh heavily onthe consciences of the officers, especially if they feel that whatthey have been ordered to do is unethical. Nevertheless, a policeforce that promotes discretion encourages officers to act in a mannerthey seem most fit when faced with a tough decision during an arrestor an investigation.
Besides,discretion is a form of discernment that allows officers to develop ahabit of making good, virtuous decisions. Inherently, this is due tothe fact that it requires a high degree of tactfulness, foresight,prudence, empathy, and tolerance to make an appropriate decision in asituation that requires discretion. It is not merely a basic show ofleniency or taking soft decisions as many people assume. In such amanner, discretion fosters fairness in decision making by the police,as it takes into account all factors that affect the case and usethem to determine the most appropriate decision within a particularcircumstance.
Anotheradvantage of discretion is that it allows officers to operate as freeand equal agents. Essentially, this means that officers have thefreedom to make independent decisions, which they feel best upholdthe law, even if their superiors feel otherwise. Correspondingly,this allows them to extend the duties and rights of the officetowards inalienable rights, liberty, and the freedoms that majorityrule cannot take away from individuals. In addition, it preventsofficers of the law from being used by their bosses to conductunethical acts since they act as free and equal agents.
Lastly,discretion gives officers the freedom of disobeying superiors orgoing against the rules when necessary without degenerating the rulesor fostering a hateful relationship with the public and the policebosses. Correspondingly, this allows officers to developaccountability for their actions. This is because whenever they actin a manner that is defiant to the instructions or orders of theirsuperiors, they must have a good reason and must demonstrate howtheir decisions were in the best interests of the office and thepublic in such a manner, they learn to be accountable for theirdecisions instead of hiding behind orders from their superiors.
Criticismof Police Discretion
Theuse of discretion can allow serious offenders to escape punishment.This is due to the fact that most statutory and common laws do notcover all potential situations that officers might encounter in thefield hence, in the event where the officers do not act diligently,lawbreakers may escape justice due to various reasons, includingcorruption, cronyism, and relations all in the guise of policediscretion. Besides, in criminal justice systems that endorse the useof discretion by the police, the public tends to believe that theirencounter with law enforcement officers should always be smoothconsequently, this makes them defy the orders of the police. Wood etal. (2014) agree that defiance is one of the main challenges ofdiscretion. As a result, the officers must use force to make thoseindividuals to comply, defying the very purpose of discretion.
Anotherflaw of discretion is that, if not regulated/monitored appropriately,it can lead to the abuse of power by the police. A good example ofsuch an instance is when corrupt officers use discretion privilegesas kangaroo courts for protecting their personal interests. Moreover,if police discretion is abused, it can lead to the enforcement of thesoft law mechanism, which in turn can encourage people to commitoffenses. Essentially, this problem can be remedied by creatingregulatory bodies that review the decisions of the police that aremade through discretion. Ideally, this would prevent law enforcementofficers from exploiting discretion privileges to drive their ownself-interests. Ariel, Farrar, and Sutherland (2015) recommendincreasing surveillance, for instance using cameras, in the policeforce to ensure that officers do not abuse discretion in policing.
Despitethese shortcomings, it would be impossible for police departments tooperate without discretion. If discretion did not exist, policeofficers would be like mechanical instruments that arrested alllawbreakers regardless of the seriousness of their offenses.Correspondingly, this would culminate in a huge backlog of crimecases, making the work of the police very difficult. Besides, ifpolice officers were not capable of overlooking small infractions,they would be overwhelmed by a high rate of arrests, which would inturn impede their efficiency. In such a manner, the use of discretionis an indispensable part of the criminal justice system. In thisregard, its demerits should be addressed promptly to promote theefficiency of police work.
Disadvantagesof the Use of Force by the Police
Althoughthe use of the force is necessary in some instances, such as whenhandling defiant offenders or in self-defense, it has severaldisadvantages that make it less preferable compared with practicingdiscretion. First, the use of force encourages the abuse or misuse ofpower by the police this is due to the fact that it gives officerstoo much power over others (Rider, 2013). For instance, it is commonfor police officers to use excessive force when dealing with themembers of certain ethnic or racial groups such as African Americans,leading to an increased rate of the injury and death of innocentsuspects (Umsted, 2014).
Secondly,the use of force can strain the ties between law enforcement and thepublic. If officers use excessive force when handling suspects, theymay be feared or hated by the public, which in turn can preventpeople from cooperating with them to maintain law and order in thesociety. Correspondingly, this can lead to increased suspicion andtension in the society, further impeding the work of police officersin the society. According to Umsted (2014), the use of excessiveforce by the police when dealing with the members of certain groupshas increased violence and hate speech directed towards the police.
Lastly,the use of force, for instance in the form of arrests, can lead tothe congestion of prisons and other holding facilities. This can beavoided by using discretion, which guarantees that only serious orrecurrent offenders are punished, while conductors of minorinfractions are pardoned or let off with a simple warning.
Prevailingresearch demonstrates that the use of discretion is more appropriatethan using force in policing. By definition, discretion refers to theact in which officers make decisions at a crime scene their actionsare determined by their opinions on the seriousness of theinfraction. If it is minor, they might let the offender off with awarning or a ticket. On the contrary, force in policing is employedwhen an offender resists arrest, or during the defense of others oroneself. Force should only be used only when necessary. Nevertheless,there has been an ongoing debate about which between discretion andforce is the best approach to policing. Correspondingly, discretionis the most preferable between the two options.
Notably,discretion is important due to the fact that it allows officers tomake relevant decisions during unpredictable circumstances.Additionally, it makes law enforcement officers more courageous whenit comes to making personal decisions in the daily activities. Italso allows the police to develop a culture of making good, virtuousdecisions. Moreover, it allows officers to operate as free and equalagents, which prevents them from being misused by their superiors.Lastly, discretion allows the police to disobey direct orders when itis necessary while avoiding conflict with bosses as well as thedegeneration of laws. Despite these benefits, discretion has severaldisadvantages, including a risk of being misused by corruptindividuals among others. Regardless, discretion is important due tothe fact that it is virtually impossible for the police system tooperate without it. If it did not exist, police officers would behavelike machines that would arrest all lawbreakers, leading to excessprisoners and consequently, an unsustainable criminal justice system.
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