Police discretion poses an interesting paradox in our democratic society. As Ramirez et al (2000) explains, we entrust the police to enforce the law, to maintain order, and to use legitimate force if necessary'. Not only do we expect police to complete this rather demanding task, but we also expect them to accomplish these tasks by treating the public in a fair and even-handed way'. Thus a major problem is the over policing' and stereotyping' of marginalized groups such as the mentally ill, homeless, indigenous or juveniles. The use of police discretion in the context of traffic stops is also an issue worthy of attention. Whilst some believe the use of police discretion unavoidably marginalizes these groups, others think the police should adopt and enforce a zero tolerance' stance to combat the problems discretion causes. Despite the law enforcement problems discretionary powers have caused, to completely abolish it could in fact exacerbate the problems already present.
Brown (1981: 170) describes three types of indicators used by patrolmen in deciding whether or not to stop someone. These are incongruity, prior information and appearance. As two of these relate solely on looks and initial perception it is not surprising the most cited problem with police discretion is the tendency to over police and stereotype particular groups. In Australia, the empirical evidence shows that Aboriginal people are arrested at a far greater rate than others in the population (Smandych et al 1995:250) and similarly that that apprehension rates for young Aboriginal are approximately nine times higher than for non-Aborigines Luke and Cunneen (1995:81). Similar patterns emerge in other countries (such as the US) where people of African-American or Latino descent are in contact with the criminal justice system at disproportionate rate to the general population, with the youth being the major sub group affected. Teplin (2000) also identified those exhibiting signs of mental illness as 67 per cent more likely to be arrested than those who do not and the homeless as also sharing an increased risk of police encounters and arrest (Markowitz 2006).
In urban areas the most common situations which give rise to over policing relate to the use of public space. Beresford & Omaji (1996:75) noted the high frequency that Aboriginal youths (and indeed other disadvantaged youths) use public space for recreation and social gatherings, making them more vulnerable to being labeled as wrongdoers'. The same situation can thus be said for the homeless. People suffering from mental illness are another group commonly associated with over-policing, but perhaps can be put down to the high correlation between being homeless and mentally ill. Hodder, Teeson & Burich (1998) examined the inner-city homeless population of Sydney and found that 75 per cent of participants had at least one mental illness. This was compared to a general population rate of 20 per cent. Similar findings have been also been identified in major cities such as New York (Reich & Siegel 1978). The point is, is it so wrong that the groups that are the major users of public space, also the groups most often the victims of police attention? It seems the police are faced with a no win situation as the public expectation is that police should maintain order on the streets (and public space), yet do so in a manner which doesn't target those predominantly on the streets. Perhaps then the problem is not with police discretion per se, but on the conflicting expectations society has of the police. Maybe the greater focus should also be on finding appropriate space for the homeless and similarly providing adequate and accepted public space for youths and other disadvantaged groups to ensure police aren't placed in the conundrum they are.
As Luna (2003) describes all professions create shortcuts to deal with the everyday routine of their job. For example doctors...
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