Policing: Police and Attorney Uses Discretion

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Police Discretion

One of the most controversial distinctions of police authority is their discretion over

individual rights. Our nation's concept and respect for individual rights stems from our

forefathers and the creation of the Constitution. Being a country with grassroots in freedom and

revolution, our outlook towards individual rights and liberty remain strong. Therefore much

emphasis is placed on the Constitution as the rule of law and its interpretation of individual rights

affects the way police organizations conduct themselves.

Three styles of police behavior in America have been identified: 1) legalistic style of policing; 2)

watchman style of policing; and 3) service style of policing. The legalistic style of police

behavior is concerned with those police officers who believe they are representatives of the law

that they are sworn to uphold. Legalistic police officers refrain from judgment on the basis of the

spirit of the law, trying to judge only whether a law is broken or followed. The legalistic style of

policing could be equated with the "police officer who would give his own mother a ticket for

speeding' philosophy. The watchman style of policing produces the opposite type of police

officer. The watchman police style "overlooks" or ignores many violations of the law. These

police officers, when not acting on a violation, are inclined to issue more warnings than tickets,

and make fewer arrests. The service style of policing makes the greatest use of discretion. These

police officers judge each situation on its own merits and base their decision to arrest on the

well-being of the community. The service style of policing is a balance between the legalistic

and the watchman styles of policing and has been suggested as providing one of the better forms

of police-community relations.

Police discretion has been defined as "the power to consider all circumstances and then

determine whether any legal action is to be taken. Many citizens as well as police officers feel police should not have the authority of discretion. These individuals feel it should be left to the

court's discretion whether to inflict punishment upon a lawbreaker or ultimately to decide

whether an offense has been committed. The conception of police officers as non judges is a

misnomer. Police officers must utilize judgment daily in their job performance. Police discretion

is used as an arrest or not-to-arrest judgment in the same manner a prosecuting attorney uses

discretion in the plea-bargaining process. However, the prosecuting attorney and the judge

usually do not have the power of discretion until the police officer makes the decision to arrest.

Police officers exercise a tremendous amount of discretion in carrying out their functions. Police

encounter a wide range of behaviors and a variety of situations that the law hasn't even thought

about yet. One of the most amazing things about policing is not who they arrest, but who and

how many they let go (non-arrest options, leniency, under reaction). On the other hand, police

work is dangerous, and officers sometimes view non-dangerous situations as more dangerous

than they really are (overzealous, brutality, deadly force, overreaction). That is, they make many

choices from a range of possible actions or inactions available to them that are not specifically

prescribed by law. This simple notion that seems self-evident to some and controversial to

others, lies at the heart of many issues of policing in democratic societies.

That police do exercise discretion was only openly acknowledged beginning in the 1960s. The

conventional views prior to that time, and persisting among some long thereafter, was that the

police function was entirely a ministerial one, that police took only those actions specifically

authorized or mandated by...
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