pros and cons of police discretion essay

Pros and Cons of Using Discretion in System of Criminal Justice Essay

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Introduction

Application of discretion in system of criminal justice, advantages of discretion in the criminal justice system, disadvantages of discretion in the criminal justice system, opinion on the amount of available discretion in the system of criminal justice.

According to (Skolnick, 1966), discretion is the process by which actors in the system of criminal justice try to determine whether a person is innocent or guilty which leads to either sentencing or freedom. These actors include prosecutors, jury, judges, as well as police officers. Application of discretion assists them in making various decisions which include penalization as well as a mode of punishing the offender. The initial stage in which discretion is applied in the system of criminal justice is where police officers make a decision on whether a suspect should be arrested for a particular offense or not.

(Cole, 2004), argues that, since discretion is applied by each of the various parties of the criminal justice system, uses of discretion may differ according to their roles as well as powers are given to them. For example, when police officers forward a suspect to a prosecutor, the decision is made on whether or not to pursue the particular charge that the suspect has been arrested for. Discretion powers allow the prosecutor to drop a case based on several considerations which include, offender’s characteristics, characteristics of an offense, likelihood of conviction as well as availability of civil remedies. Prosecutors may also make decisions on whether to reduce charges, seek indictments or have charges filed for adjudication. The second application is judicial discretion where a judge is allowed to make a decision concerning a case within a particular specification.

That is, the precedent or legislation lays down some constraints within which they expect judicial decisions to vary according to the judicial actor’s discretion. These may include probation, dismissal of charges, and setting of bails, and acceptance of pleas. Thirdly, discretion can be exercised by the jury in the system of criminal justice. Upon hearing the evidence presented before a court by the defendant and petitioner, a jury decides on a verdict based on the judge’s instructions as well as the evidence presented.

Discretion has been found to be very essential in a system of criminal justice due to its various roles in the system. One of the advantages of discretion is where it allows a variety of decisions that could not have been anticipated by bodies of legislature to be made. This is because, it’s impossible for these bodies to predict all circumstances regarding each and every crime, predict mores, and put forward laws that cover all criminal and noncriminal conducts. Therefore, the application of discretion provides room for flexibility of decisions where crimes are judged accordingly but within specific limitations put forward by law.

A high level of discretion leads to the professionalism of decisions made. That is an increased level of discretion results in considerations as well as discussions of various possibilities before arriving at final decisions. Increased discretion also provides an allowance for different laws that vary from nation to nation and region to region. This variation occurs as some countries may consider a certain aspect to be illegal while others may consider it legal. Other differences may be due to the fact that different charges are laid for similar crimes and that some nations allow a greater variety than others, calling for a high level of discretion in the system of criminal justice. (Cole, 2004)

(Cole, 2004), argues that, there are a number of disadvantages associated with theapple action of discretion in the system of criminal justice. These disadvantages are based on two problems, one related to the definition given to the term, while the other regards its job autonomy. Discretion has been found to receive irregular definitions which results from its ambiguity in literature. This consequently leads to irregular definitions concerning its application by the various actors in the system of criminal justice. For example, the quantitative definition of discretion does not provide means by which behavior should be measured.

A high level of application of discretion resuins to abuse of the same, where actors of the court find themselves diverting from the law or arriving at decisions based on erroneous evidence. Some may become biased in their decision-making, for example when a decision is made to favor a particular offender because he/she belongs to a similar ethnic group with the judge. A lot of discretion may also lead to possibilities of corruption among actors of the system of criminal justice.

This is where decisions are made on the basis of what will or has been given in return. Police officers, judges, prosecutors as well as other actors with authority are tempted to use their power for personal gains while in office. For example, an innocent person who is not able or unwilling to give bribe may be arrested by police officers, leaving the guilty one free. (Skolnick, 1966)

There happens to be a lot of discretion in the system of criminal justice, which has been found to increase with time. This increase has been due to research done on crimes that have resulted to a great variety of arguments concerning legality of actions as well as illegality. There have also risen disagreements in the understanding of law by prosecutors, jury, judges, and police officers, which have led to different ways in which discretion is exercised. An example of increased level of discretion is where courts take longer periods to arrive at decisions. This is because each of the various actors in the system of criminal justice wants his/her exercise of discretion to be considered.

The number of cases presented and ruled in court has also increased than before which indicates a high level of discretion. Therefore, some nations have opted to regulate the high levels of discretion by setting mandatory laws for sentencing and specifying charges for particular offences. (Radzinowicz, 1971)

In spite of the various limitations that have been found to result from an overly exercise of discretion; it still remains a very essential aspect of the system of criminal justice. The absence of discretion may lead to so many offenders in the community as well as a larger number of them in remands. Application of discretion is therefore found to keep the conveyer belt moving, where cases that receive ruling give room for more cases to be ruled upon. The current situation of inconsistency in the application of discretion has been found to result from lack of a model that gives the general procedure through which discretion should be conducted. However, actors have been urged to exercise their discretional powers fairly and effectively so as to produce an efficient system of criminal justice. (Cole, 2004)

Cole G. (2004): Criminal Justice in America : Thomson Wadsworth.

Radzinowicz L. (1971): Crime and Justice : Basic books.

Skolnick J. (1966): Law enforcement in democratic society : Wiley.

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• Detrimental Effects of Gender Influenced Crime and Interventions
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• Iran-Contra Arms Deal: United States Policy and Law
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• Chicago (A-D)
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IvyPanda. (2022, March 5). Pros and Cons of Using Discretion in System of Criminal Justice. https://ivypanda.com/essays/pros-and-cons-of-using-discretion-in-system-of-criminal-justice/

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IvyPanda . (2022) 'Pros and Cons of Using Discretion in System of Criminal Justice'. 5 March.

IvyPanda . 2022. "Pros and Cons of Using Discretion in System of Criminal Justice." March 5, 2022. https://ivypanda.com/essays/pros-and-cons-of-using-discretion-in-system-of-criminal-justice/.

1. IvyPanda . "Pros and Cons of Using Discretion in System of Criminal Justice." March 5, 2022. https://ivypanda.com/essays/pros-and-cons-of-using-discretion-in-system-of-criminal-justice/.

Bibliography

IvyPanda . "Pros and Cons of Using Discretion in System of Criminal Justice." March 5, 2022. https://ivypanda.com/essays/pros-and-cons-of-using-discretion-in-system-of-criminal-justice/.

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Pros And Cons Of Police Discretion (Essay Sample)

In Terry vs. Ohio, the police discretion was upheld by the Supreme Court to be valid and justified. This was the case where in the search and seizure of a person was based on the suspicions of Terry when he saw the suspects walk back and forth the same road and peeking a store window. This led Terry to approach the men; he stopped and frisked the men for any suspicious dangerous weapons carried by the men. He seized a gun in a pocket that led to the arrests of these men.

This is the discretion of a police that benchmarked cases of arresting a person. It is a landmark case in the history of the United States. In this case was held that the Fourth Amendment on unreasonable searches and seizures was not violated by Terry. The reason for the stop and frisk was to prevent the suspects to endanger the arresting officer from the weapons of the suspected violator or to conceal a piece of evidence.

The application of the Terry search however has seemed to be forgotten by the present police officers in the United States of America. There are two sides on which this may be argued: police officers are forced to subdue a suspected violator because of the fear; and on the other hand, the police officers are abusing the discretion the law has provided them.

Discretion in this case is not the same as how an average person would judge a person doing a criminality. There are laws to follow; rights to be upheld as reiterated in the US Constitution and in the Universal Declaration of Rights. First, there must be a probable cause that leads a police officer to suspect that a person is actually or has just committed a crime. When there is a probable cause, the police officer must see to it that the rights of the suspect must be upheld – the Miranda Rights. The Miranda Rights are those rights that are accorded to each individual who is to be arrested. They must be informed of their rights before they are arrested – the right to remain silent and the right to consult a lawyer. These rules must be followed, otherwise, the arrest is not valid and the suspected criminal must be released from custody from the authorities.

At present however, there is a question on how these rules are followed by the police. The black Americans, as an example, have been clamoring that they have been shot or arrested illegally by the policemen; in short, there was no probable cause, worse they have proven to be innocent from any crime. This case falls into the conclusion that the police are abusing the discretion that the law has given to them.

There is however a justification to the alleged abuse by the police by the discretion – fear. The violators at present have become more radical and extreme in their actions. The presence of the police appears to start a battle between them. Apparently, despite the laws being followed by the police, the violators use a greater force against the police. And to try to appease the situation, as it is the duty of the police, they use a greater force against the violators – a riot. Until it is a constant battle between the two.

Police discretion both have benefits and detriments depending on the situation. But it is the law that gave the police a discretion to arrest a violator. At the same time, the law also accords the violators rights that must never be abused. Either way, when there is a detriment or benefit in the discretion of the police, the law always has come into play. It only becomes mmore detrimental to the both when the law does not give them what is due to both the violator and the police.

Process Costs and Police Discretion

• Charlie Gerstein
• J.J. Prescott
• See full issue

Cities across the country are debating police discretion. New York, for example, has recently endeavored to end its controversial practice of stopping and frisking citizens as a matter of course. 1 The debate over police discretion implicates fundamental questions about the role of police in American society, racial discrimination in the criminal system, and the disproportionate use of violence by the police against young black men. Much of the debate over the proper scope of police discretion centers on reforming the criminal code to decriminalize or eliminate minor crimes. This Essay argues that the debate over the proper scope of police discretion should instead focus on the real source of that discretion: the process costs of low-level adjudication.

Minor crimes are a big problem. In 2006 alone, Americans were charged with and detained on misdemeanor offenses approximately 10.5 million times. 2 These cases have serious long-term consequences for defendants, their families, and our criminal justice institutions. 3 They create criminal convictions and criminal records. 4 They crowd our jails. 5 And minor convictions are usually imposed with little process, without counsel, and often regardless of factual guilt or innocence. 6 Worse, these crimes and convictions arguably form the core of our criminal justice system: while most people incarcerated in the United States were convicted of a felony, a large majority of criminal sentences imposed come from misdemeanor and violation convictions. 7

Many of these minor convictions result from what are often called “public order” offenses. 8 These offenses are relatively petty to be sure, but their more important defining feature is that the actual sentence violators receive for their transgressions — usually time already served in detention via a guilty plea — is not the “punishment” that ought to matter to policymakers. In practice, our criminal justice system primarily enforces public order prohibitions prior to any conviction by subjecting the accused to arrest, detention, and other legal process. 9 These “process costs” are significant; they include not just pre-trial detention, but also the hassle of pre-trial and trial proceedings and the risk and uncertainty that those proceedings necessarily entail. 10 These costs distort plea bargaining so much that the substantive law behind the bargained-for conviction becomes irrelevant. 11 Defendants are likely to spend more time in jail if they contest the charges than if they plead guilty. Not surprisingly, they almost always plead guilty, whether or not they committed the charged offense and despite the fact that the criminal conviction may result in serious consequences down the road. 12

Maintaining public order is nevertheless an important civic function. Many of these offenses — disorderly conduct, minor trespassing, loitering — attempt to serve this function by giving police discretion that allows them to disrupt, to isolate, and to sober. 13 The use of vague terms and broad standards in drafting statutory language can deliver such discretion. In the minds of some, however, discretion leads to abuse, a conclusion that has engendered a heated debate about how much statutory discretion the law should make available to police. 14

We do not join this battle. Instead, we suggest that criminal law process costs essentially decouple statutory discretion from actual police behavior, rendering the debate about statutory language largely moot. In other words, in the minor crimes context, process costs — not vague statutory terms — produce police discretion. Abuse is thus better addressed by first recognizing that, in the context of public order crimes, discretion has little to do with substantive criminal law and that, instead, focus is much better placed on mitigating the harmful consequences that discretion can generate and on limiting police discretion through other means. To this end, we propose providing the police with new civil enforcement tools that will be equally effective at preserving order but that will in all likelihood cause significantly less unnecessary harm. We believe — counterintuitively, perhaps — that giving the police an additional power (noncriminal arrest) might encourage them to use the power they currently have (criminal arrest) less frequently and, therefore, might reduce the harm that this latter power causes.

Our argument begins with the fact that when the police feel they need to arrest someone to keep people safe or to prevent property destruction, the police will, in most cases, arrest that person — regardless of how specific or general a given city’s criminal code may be. 15 Why? Because the specificity of the criminal code has little relationship to the costs imposed by an arrest, and it is the ability to impose at least some of these costs (for example, temporary removal and detention) that allow the police to achieve certain ends — disruption, isolation, and others.

American police have an extraordinarily diverse set of responsibilities, 16 and they approach their work with a wide variety of goals in mind. We do not mean to address these goals comprehensively. Rather, we focus only on the goal of “maintaining order” — chiefly, controlling or interrupting low-level misconduct and disrupting potential short-term violence. To achieve this goal, police sometimes have no choice other than to arrest people in order to temporarily isolate them for a few hours or to remove them from a particular location. In such a scenario, police may care about what happens before (and only some of what happens before) any conviction, but not the conviction itself or its consequences for the defendant.

If the police in certain circumstances are indifferent to whether a defendant is convicted of a crime, a realized conviction is likely to be a social waste. And in any event, code reforms are unlikely to control police discretion. When discretionary arrests turn on considerations other than the substantive law that underlies public order criminal offenses, police ought to have tools that do not trigger unnecessary collateral consequences, including criminal records, meaningless pleas, unnecessary risk and uncertainty, and useless (from a police officer’s perspective) process costs. Cities should adopt civil ordinances that free the police to make discretionary arrests for low-level violations, but limit the tendency of those arrests to inflict socially useless harm on defendants.

This Essay proceeds in three parts. Part I quickly recounts the realities of low-level criminal punishment in big cities and shows that low-level arrests are untethered to substantive law, rendering solutions that work within the criminal law unlikely to be effective at controlling police discretion. Part II outlines the debate over discretion to police public order, and argues that it neglects the reality that substantive law is mostly irrelevant to the matter of police discretion in this domain. Part III proposes a solution that comes from a long line of police practice: civil laws with strictly limited periods of detention and other features designed to reduce or eliminate those process costs that have no connection to what police are supposed to be trying to do — maintain order.

Before moving on, we note that the purpose of this Essay is not to discuss whether the police should arrest people as often as they apparently do. Rather, operating on the assumption that the police do feel the need to arrest people, we seek to ameliorate the consequences of those arrests by reforming the law in a particular way. As we explain below, we believe that our proposal (or something like it) can reduce the negative effects of many public order policing arrests without increasing the total number or consequent burdens of such arrests.

I. Arrests for Public Order Offenses

In very low-level misdemeanor prosecutions, the substantive criminal law that generates the punishment is largely irrelevant. Instead, a conviction is the near-certain result of the arrest, and the punishment is the process of criminal arrest, pretrial detention, and adjudication. 17

Consider New York City today. The police see (or learn of) someone doing something they do not like. 18 That person is arrested for a minor offense, 19 usually disorderly conduct, 20 trespassing, 21 loitering, 22 possession of marijuana, 23 or drinking on the street. 24 This arrestee is supposed to be arraigned by a judge within twenty-four hours, 25 but the process often takes much longer. 26 In the interim, the arrestee spends roughly four to six hours in a precinct holding cell before being transferred to courthouse lockup. 27 When he finally sees a judge, if he has a record, he is likely to be held on bail that he cannot afford. 28 But even if he is released on his own recognizance, which, for defendants with a criminal record, is unlikely, 29 the hassle of a trial — with its many courthouse trips, where there might be long lines at secured entrances 30 — starts to look unmanageable. He is offered a plea deal in which the twenty-four hours he just spent in lockup will in effect serve as his sentence. If he does not take it, he will either remain in jail until his trial — which could be a rather long time 31 — or be forced to attend a series of time-consuming and meaningless court appearances. 32 If the defendant works full-time, these court appearances are nearly impossible for him to attend. And so at arraignment he does not contest whatever low-level offense is available and goes home. 33 Statutory law has no role in this type of prosecution.

Many have noted the startling lack of process in misdemeanor and violation prosecutions generally, as well as the extent to which those prosecutions are driven by process costs. 34 The picture is bleak in New York, to be sure — but at least in New York defendants plead guilty one at a time. In some jurisdictions, defendants are read their rights and enter their guilty pleas en masse. 35 Guilty pleas are a near certainty. 36 Adjudication, in the sense of determining, say, the factual basis of guilt, is absent. 37 This world of low-level criminal processing does not remotely approach the criminal process taught in law school classrooms. At least one scholar suggests that the misdemeanor system in New York is no longer principally concerned with adjudication at all — rather, she claims, its goal is to mark defendants with records so that they can be effectively sorted in future encounters with the system. 38

As a matter of legal doctrine, New York’s disorderly conduct offense is limited in scope and difficult to prove. 39 Same with open container violations. 40 In the tiny minority of cases that do receive actual judicial scrutiny, the New York Court of Appeals has espoused a common law of disorderly conduct violations that sharply circumscribes the extent to which police can use these laws to intrude on individual liberties. But these laws routinely underlie convictions of defendants who did not violate, and could not have violated, them. 41

There are particularly stark examples of this phenomenon: people often plead guilty to crimes that, by virtue of either repeal or unconstitutionality, the police can no longer legally enforce. 42 In 1993, the Second Circuit struck down New York’s loitering statute because it violated the First Amendment on its face and enjoined the City from prosecuting charges under the statute. 43 Yet between 1992 and 2004, the New York City Police Department (NYPD) arrested 1876 people for violating that very statute. 44 Eddie Wise, one of those defendants, was convicted of violating the unconstitutional statute seven times after it was declared unconstitutional. 45 In 2005, local lawyers again sued to enjoin the NYPD from enforcing the statute. 46 (They won. 47 ) But the reminder didn’t stop the NYPD from issuing 641 summonses and arresting 58 people for loitering even after the suit was filed. 48

Marijuana arrests present an equally stark example. In New York, possession of marijuana in public view is a misdemeanor. 49 But, since 1977, having marijuana in your pocket is a noncriminal, nonarrestable violation. 50 Between 1996 and 2011, New York City alone made 586,320 arrests for possession of marijuana in public view. 51 In most of these arrests, the marijuana “becomes ‘open to public view’ only after the police stop individuals and either ask them to empty their pockets or conduct a frisk.” 52 Local public defenders, because they were concerned that these arrests “present[ed] clear constitutional and evidentiary problems,” 53 began trying to take these cases to trial. They were unable to try a single case. 54

How this happens is no mystery. The process costs so outweigh the defendant’s perceived costs of pleading guilty that it seems to make very little sense to contest even patently invalid charges. Almost everyone pleads guilty, 55 even though many did not commit (or could not have committed) the charged offense. This is because successfully fighting the charge is worse for the defendant, at least in the short run, than pleading guilty. The Fourth Amendment, then, imposes no restrictions on police behavior in this realm of criminal punishment, beyond the distant possibility of a § 1983 civil rights suit. 56 Because the police can be confident that a trial on these charges is at worst a remote possibility, the exclusion remedy for Fourth Amendment violations is meaningless.

These public order arrests create a cascade of problems for those defendants who are frequently stopped by the police. In well-studied New York, a defendant’s first misdemeanor arrest often results in an adjournment in contemplation of dismissal (ACD), where the charge is dismissed after a year if the defendant stays out of trouble. 57 But if the defendant gets rearrested within the next year, the ACD usually results in a worse offer from the prosecution, and often a formal conviction for the offense on which he was rearrested. 58 And, during the year the ACD is pending, potential employers can see (and make decisions on the basis of) the arrestee’s record. 59

But while prosecutors may aim for criminal convictions, the police have much less reason to care about dispositions for loitering, disorderly conduct, or open-container arrests. At least in theory, in some circumstances, they ought to care only about the arrest and pre-arraignment detention. 60 With rare exceptions, once the very low-level defendant is arrested, the police have accomplished their immediate goal of maintaining order. Of course, the defendant is also prosecuted, convicted, and permanently marked by the system, but these fallen dominos are hard to pin on the police. The public expects the police to maintain order, but when an arrest is necessary, the law often arms officers — at least officially — with only the powerful and blunt tools of criminal law. This is a destructive mismatch: public order or “quality of life” policing is conducted almost entirely outside the shadow of substantive criminal law and almost entirely within the discretion of the police. 61

The problem stems from the misalignment of purposes between the police, who primarily (and optimistically) seek to prevent crime and keep streets safe, and district attorneys, who focus more immediately on pursuing chargeable offenses. 62 Prosecutorial involvement in a case typically begins when someone has already been arrested. At least according to some, prosecutors are interested in minimizing the risk that a defendant emerges from the system without being “marked” so that, in the event the person reoffends, the prosecutor is not blamed. 63 Prosecutors are not well positioned to weed out those public order arrests that should never have led to a criminal conviction. The police, on the other hand, are expected to enforce public order. They likely care less about the escalating penalties of the criminal system than prosecutors do. But when the police make public order arrests, they (perhaps inadvertently) start a process of escalating punishment that is ill suited to the task of order maintenance. 64

“Criminal” public order enforcement is counterproductive in other ways. For one, it erodes the label “crime.” When we ask the police to maintain public order, we do not ask them to focus on crime or to arrest criminals as the typical person uses those terms. We ask them to regulate behavior that may inadvertently create some risk to the public; to deter chronic low-level misconduct that doesn’t rise to the level of criminality; 65 and even to be our primary — and maybe exclusive — agent for dealing with people with substance abuse problems, the mentally ill, and the homeless. 66 Calling this sort of policing “criminal” makes the term mean less, 67 and therefore makes it less powerful, eroding any deterrent or expressive value of a criminal sanction. 68 Worse still, this approach brands as “criminals” many who have merely offended other people’s sensibilities or who have engaged in what almost everyone agrees is very minor misconduct that in reality very rarely poses a risk to physical safety. 69

Because defendants cannot (realistically) contest the charges against them, policing outside the substantive law also leaves no account of what happened — or why. 70 The sentence imposed is in effect subverted by the process, which ought to be administrative and incident to punishment, not the punishment itself. Cases are often resolved at arraignment, 71 and very rarely at trial, 72 so there is no record of why the system punished someone. All we’ll ever know is that someone was convicted of “disorderly conduct.” 73 Those who read the record might think the worst. 74 A criminal record is chief among the unintended and unnecessary costs generated by relying on criminal law to maintain public order. A person arrested for an essentially noncriminal public order offense becomes part of the criminal system alongside those guilty of genuinely transgressive conduct and about whom society would agree on assigning the label “criminal.” Because of the wide variety of conduct covered by public order prosecutions, employers are unlikely to bother drawing distinctions.

Is there a justification for uniformly marking arrestees with criminal convictions in the context of public order offenses? Certain classes of low-level offenses are apparently poor predictors of serious criminality in the future. 75 In some jurisdictions, the probability of being convicted of a more serious low-level offense, as opposed to a less serious one, is chiefly a function of how long it has been since the individual’s last arrest. 76 Because people in highly policed areas are arrested at much higher rates, the combination of these facts likely produces a cascade of arrests and convictions that have little relationship to the goals of public order policing (and much more to do with a person’s neighborhood and race).

Finally, there is simply the matter of how much all of this costs. Public order arrests often result in a lengthy period of pre-arraignment detention 77 — perhaps well in excess of the sentence any institutional actor would rationally want to impose for the “violation.” The defendant is processed by the court system’s personnel and in its buildings and is provided a court-appointed lawyer. All of this jailing and processing translates into a nontrivial amount of money and, in any event, imposes needless suffering.

The debate about police discretion cannot move forward as long as the police are compelled to use extralegal means to police public order by imposing criminal punishment. Using the process in this way interferes with other institutional actors’ ability to limit police discretion: as it stands today, most discretionary arrests result in a conviction with serious consequences. In these arrests, everything seems to have gone right, so the public — including much of the legal academy — continues to think that the text of the substantive law can meaningfully constrain police behavior. 78

II. The False Dichotomy of Police Discretion

There has long been a vigorous debate over how much discretion to give the police in initiating street encounters and making low-level arrests. 79 This debate is alive today in the fight over New York’s controversial stop-and-frisk policy and its practice of arresting people for marijuana possession. 80 Some scholars claim that the density of urban spaces requires new forms of police discretion to maintain “social norms” and to smooth community tensions. 81 They argue that the increasing empowerment of black communities means that the Constitution should leave them alone to “protect themselves through the political process.” 82 Courts should no longer be suspicious that public order laws are designed to keep black people out of community life because, the argument goes, black communities increasingly write those laws themselves. 83

The early incarnation of this debate centered on City of Chicago v. Morales , 84 which involved a broad antigang loitering ordinance that allegedly gave police the power to arrest (or harass) whomever they wanted. The ordinance essentially criminalized “remain[ing] in one place with no apparent purpose.” 85 Some maintained that this language was fatally overbroad and gave the police inordinate discretion to arrest people for innocent conduct 86 — the Court agreed — while others argued that this broad language was necessary for the police to do their jobs and maintain order for the benefit of minority communities. 87 This debate implicitly assumes, however, that you can have either specific criminal laws that constrain the police, or very general laws that allow the police broad discretion. 88 This is a false dichotomy. What the law says — the specific conduct it defines and criminalizes — does little to constrain police discretion in the enforcement of very low-level violations. The need to control police discretion could hardly be more important, but in the context of public order offenses, it has at best a very weak connection with substantive criminal law. 89

Regardless of how offenses are defined, the police can still use them to generate convictions by using the process to force guilty pleas. Therefore, by focusing primarily on the content of substantive law, policymakers pay too little attention to the real agent of criminal punishment in this setting: the process costs of a criminal arrest.

To illustrate this disconnect, consider an example. Imagine that drinking on the street — a very specific activity — were no longer prohibited in a particular city. Someone is then arrested for drinking on the street in this city even though drinking on the street no longer violates any criminal or administrative rule. If he is offered a plea bargain at his arraignment, he will probably take it, as the previous Part shows. Thus, if the police encounter someone drinking on the street in a manner that they find disruptive or objectionable, they can (and also clearly know they can) still arrest that person despite the fact that drinking on the street is no longer against the rules.

The disconnect stems from a fact that has been true of lower courts since at least the 1950s: the process is the punishment. 90 Beginning with the “due process revolution,” 91 when the Bill of Rights was incorporated against the states, lower courts have used the process of adjudication to enforce substantive norms of behavior. Because they are no longer able — at least formally — to enforce order without fairly extensive process, the criminal system evolved to use the costs that the process generates to enforce order. 92

But the political system and much of the legal academy continues to believe that code reforms can serve to control police discretion. Indeed, in response to the criticism that marijuana arrests do almost nothing to protect public safety, 93 “New York Governor Andrew Cuomo introduced legislation to make possession of marijuana in public view a non-arrestable, non-criminal violation,” just like possession in your pocket. 94 Despite support from all five New York City district attorneys, 95 the legislation failed because of opposition from upstate and suburban legislators. 96 Both sides of this debate neglected the reality that code reforms cannot alone control police discretion. In other words, even if the legislation passed, if the NYPD wanted to continue arresting people for marijuana possession in public view — despite the fact that it would have become a nonarrestable offense under the law — there would be nothing to stop them.

Other norms and institutions are much better suited to constrain police discretion. Indeed, the political process that led to the passage of Chicago’s gang-loitering ordinance may have strongly influenced police behavior in favor of aggressive enforcement and vigorous public order policing. 97 Civilian oversight can constrain police discretion. 98 So can consent decrees with the Justice Department. 99 Perhaps most importantly, law enforcement departmental norms can restrain discretion. 100 But in the context of minor crimes — the lowest level of criminal punishment — police discretion appears to be largely immune to substantive criminal law.

Fortunately, there is reason to be hopeful about the possibility for reform in our cities. After the legislation in New York to decriminalize marijuana possession in open view failed, the political movement behind those substantive reforms continued to apply pressure to political actors to change practice, if not the law. Turning their focus away from the criminal code, opponents of marijuana arrests were able to persuade New York City simply to stop making them. 101

It is important to recognize the limits of our claim. In prosecutions for serious crimes, the substantive scope of criminal conduct really does matter. As the ratio of the expected sentence to the threatened process costs grows, plea bargaining outcomes increasingly mirror trial outcomes. 102 It thus matters whether drugs are illegal. It matters very little, however, whether Chicago criminalizes loitering with “no apparent purpose” or “causing a disturbance.” Similarly, our claim is limited to relatively large jurisdictions, where the process costs are high. Smaller jurisdictions may function quite differently.

Finally, this entire discussion is not to say that the text of the criminal code does nothing , even in the context of low-level crimes. Criminal prohibitions send important signals to the public and to the police about the scope of proper conduct. 103 They can have a tremendously important expressive value, outlining for the citizenry conduct that is to be encouraged and conduct that ought to be forbidden. They can send important messages to the police about the proper scope of their ability to intrude on individual liberty. Our point here is only that, whatever they do, criminal codes do not meaningfully constrain police discretion in the context of public order offenses.

III. Reducing Process Costs and Collateral Consequences

High process costs of low-level criminal adjudication are the problem. The police can — at their discretion and unconstrained by substantive criminal law in any meaningful way — impose draconian, but often unnecessary, even counterproductive, costs on defendants and their families. The police do not necessarily do this out of spite or incompetence. They simply need tools to police public order (often by making arrests), and criminal law is usually all that they have.

We offer one potential solution: in order to reduce the harm of discretionary, low-level arrests — by limiting the process costs and collateral consequences they can generate — we propose a stripped-down, civil form of arrest, the consequences of which include only the arrest itself and a brief period of noncriminal detention. 104 Counterintuitively, we believe that the availability of such a tool will cause police to use their power to arrest someone for a crime less often, not more. An important historical analog to this approach is the “drunk tank,” in which officers would lock up dangerously inebriated people to sober up overnight. 105 No formal criminal process need be involved and no criminal record would result. Although the debate about police discretion has centered on the substantive scope of low-level regulation, we focus on the real-world process of arresting people for low-level offenses and seek a way to avoid criminal records and disproportionate, socially wasteful costs. If the police are going to enforce public order through discretionary arrests, society would benefit from providing law enforcement with the legal instruments to do so safely, effectively, and legitimately.

To be more specific, we propose complementing (or, alternatively, replacing) public order crimes with a class of civil ordinances that allow only very brief detentions. First, these ordinances should strictly limit the total time of detention imposed — including the sentence and the period that anyone can be detained on suspicion of a violation — to twenty-four hours at the very longest. 106 Ideally, the limit would be even shorter. The ordinances should not allow for the imposition of fines or monetary payments of any kind. Second, the ordinances should permit an arrestee to attack the legitimacy of his detention ex post via mail or telephone and to waive in-person arraignment or any other appearance requirement. Lastly, these ordinances should be noncriminal and should not, under any circumstances, leave the defendant with a recorded violation of any kind. The police should be required to retain reliable records of whom they arrested and why, but those records should be accessible to the public only in a reliably anonymous form. 107

These features serve to reduce the unnecessary harm that low-level criminal arrests ultimately impose on arrestees. No longer will there be any reason for you to plead guilty to time served or to accept an ACD-like outcome — you will already have served the maximum penalty you can receive. No longer will there be any reason to plead guilty to avoid trial. You can conduct a paper adjudication if you want to vindicate your version of events, or just let it go — either way, you will not wind up with a criminal record. Lastly, no matter what happens, you’re back home in twenty-four hours or less. 108

Such laws would still allow the police to do all the things public order policing enthusiasts expect them to do. Rarely, if ever, do the police need more than a twenty-four-hour detention to accomplish the goals of public order policing: disrupting and isolating, primarily. If the police believe that more than twenty-four hours of detention is appropriate, then other policing goals are in play, and the police should typically arrest for a more serious crime for which the defendant should be charged and tried. In this situation, the criminal system becomes appropriate, and the plea bargaining process functions better because the sentence the defendant would face upon conviction often exceeds the process costs of fighting the charge. 109 Our goal is simply to provide the police with tools that allow them, in appropriate situations, to avoid high process costs and unnecessary collateral consequences while maintaining public order.

When police arrest people for low-level crimes, they seek a wide variety of ends, depending on the context. Sometimes police want to clear a corner where drug dealers are congregating. 110 Sometimes they want to send a signal to a neighborhood that they are in control. 111 Often, police are maintaining a sense of order in the community, even manifesting that order through the regulation of physical spaces. 112 They are almost always our front-line responders to mental illness and substance abuse; thus police arrest people to keep them safe or ensure that they receive care. 113 Sometimes the police have illegitimate reasons. 114 But no matter why the police make public order arrests, they should rarely be invested in whether the person they’ve arrested is ultimately convicted. The ordinances we suggest leave the police equally effective at maintaining order, but eliminate entanglement in the criminal process as a near-certain result. And, similarly, by lowering process costs, the proposed ordinances can bring public order policing aboveboard, allowing the debate about how much discretion the police should have to occur on more productive terrain.

We recognize that police departments may want to use low-level arrests to incapacitate or simply to keep track of people they worry may pose a threat. With respect to the former possibility, police may use low-level arrests to keep potentially violent criminals off the street for more than a few days, 115 although the evidence suggests that this approach is unlikely to be effective. 116 For better or worse, our proposal does not eliminate the police’s ability make such arrests, although it may frustrate certain plausible law enforcement aims. The police may be concerned, for instance, about the long-term trajectory of chronic low-level violators. By arresting people for, say, drinking on the street, police can keep track of how many times a person has been caught drinking in public and can escalate his punishment accordingly. By allowing an individual police officer to use an unrecorded, noncriminal arrest, our proposal may interfere with the ability of the police to achieve this goal.

In theory, a system of criminal misdemeanors may serve many purposes: it may seek to punish, to deter, and to mark. It may even serve to incapacitate. But the current system achieves these purposes at significant expense. From our perspective, the issue in the public order policing domain is the disparity between the purposes of the police in some circumstances (short-term incapacitation) and the costs of the formal criminal misdemeanor system. We can accomplish short-term incapacitation in a much more humane and less costly way. Public order policing issues are in large part noncriminal, and diverting low-level violators from the criminal system will provide a fairer and lower-cost alternative to the current practice.

This paper does not take a position on the appropriate amount of discretion to give the police in maintaining public order. Nonetheless, assume for the moment that whatever the optimal level of discretion happens to be, police in many big cities currently have too much; and assume that, as a separate matter, police arrest people too often. You might think that our proposal will make both of these problems worse, not better. In response to the first concern (too much discretion), the current system appears to constrain police minimally in this area of criminal law — if it constrains them at all — so our proposal will not free the police much more than the status quo already does. We have a similar response to those who are concerned that our proposal would weaken defendants’ ability to fight the underlying merits of their claims: they have very little ability to do so at present, so, at worst, our proposal is neutral.

With respect to the concern that our proposal will lead to more arrests, though, we are more cautious. Perhaps the hassle of a formal criminal arrest under the current system provides some disincentive to the police. If our proposal makes it faster and easier for the police to arrest people, the argument goes, they will do it more. But there is no good reason to believe that an arrest leading to civil detention under our proposal is (or has to be) any less difficult than a formal criminal arrest is today for the police . For prosecutors, defense lawyers, court personnel, and judges, our system eliminates a tremendous amount of work. The police, on the other hand, still have to arrest someone, lock him up, and fill out paperwork explaining why.

If these civil arrests are no easier on police, however, one might next wonder: why would the police even bother with these new tools when they can arrest someone for basically any reason without them? To this we have two responses. First, we emphasize that, because police discretion at present is hardly constrained at all, our proposal cannot make the situation worse. Even if only a few police officers use the new tools because they recognize the unnecessary costs and consequences that an arrest for a low-level crime can generate for the offender or his family, a few is better than none. Second, we hope that policymakers will give police officers incentives to use these new tools in appropriate circumstances. We note that any policy or practice that makes a criminal arrest more costly to police in absolute terms (e.g., requiring an additional explanation for why the police officer preferred a criminal arrest to a civil arrest) would in theory induce police to use the civil tools without increasing the total number of arrests. But, more generally, what incentives policymakers, the press, the bar, or police departments might employ, and how they would be implemented, is a matter for another essay.

Our proposal might also prompt someone to ask: Why do police need to arrest people at all? If we are concerned about the current system of meaningless pleas and useless process, why not scrap it altogether? Police, indeed, use a wide array of nonarrest techniques to calm situations and ease tensions — why must they arrest?

In reply, we simply point to the fact that police under the current system arrest people for very low-level crimes all the time. 117 If we simply removed prohibitions on public order offenses from the statute books, there is actually no solid reason to believe people would not continue to be arrested for violating them anyway — or that police would not arrest people for a more serious crime, perhaps exacerbating the current situation. 118 The importance of the debate about how much discretion to afford the police — and about how much public conduct to prohibit — cannot be understated, but we do not believe significant progress can be made simply by reforming the criminal code. Police almost certainly arrest people too often, but this reality is not driven by the substantive content of criminal prohibitions. If our proposal is adopted and a less destructive form of arrest becomes established, we can turn to other, more productive, means to advance the debate over police discretion to arrest. 119

* Charlie Gerstein is a Law Clerk to the Honorable J. Paul Oetken, United States District Court for the Southern District of New York, and a Research Fellow at the University of Southern California Gould School of Law. J.J. Prescott is a Professor at the University of Michigan Law School. We would like to thank Josh Bowers, Seth Bowers, Sam Erman, Alec Ewald, Colleen Fitzharris, Nick Frayn, Kate Gilbert, Sam Gross, Jason Harrow, Issa Kohler-Hausmann, Justin Marceau, Joshua Matz, Eve Brensike Primus, John Rappaport, Laurent Sacharoff, Alex Sarch, and Sonja Starr for their helpful comments on early drafts. We are also grateful to participants at the Robina Institute’s annual conference on the Future of the Criminal Law.

^ E.g ., Joseph Ax, NYC Police to Reform Public Housing Stop-And-Frisk in Settlement , Reuters (Jan. 8, 2015, 4:38 PM), http://www.reuters.com/article/2015/01/08/us-usa-newyork-stopandfrisk-idUSKBN0KH25R20150108 [ http://perma.cc/L633-4ABD ].

^ Robert C. Boruchowitz et al ., Nat’l Ass’n of Criminal Def. Lawyers, Minor Crimes, Massive Waste: The Terrible Toll of America’s Broken Misdemeanor Courts 11 (2009), https://www.nacdl.org/WorkArea/DownloadAsset.aspx?id=20808 [ https://perma.cc/8H2H-7E74?type=pdf ].

^ See id . at 11–13; see also Marc Santora, City’s Annual Cost Per Inmate Is Nearly $168,000, Study Finds , N.Y. Times (Aug. 23, 2013), www.nytimes.com/2013/08/24/nyregion/citys-annual-cost-per-inmate-is-nearly-168000-study-says.html; Facilities Overview, City of N.Y. Dep’t of Corr ., http://www.nyc.gov/html/doc/html/about/facilities-overview.shtml (last visited Apr. 9, 2015) [ http://perma.cc/9KJ3-XDS4 ] (noting that on an average day, there are approximately 11,400 inmates in New York City’s jails).

^ E.g ., Alexandra Natapoff, Misdemeanors , 85 S. Cal. L. Rev. 1313, 1313 (2012).

^ See Boruchowitz , supra note 2 , at 7 .

^ Josh Bowers, Punishing the Innocent , 156 U. Pa. L. Rev. 1117, 1119 (2008).

^ Natapoff, supra note 4, at 1320–21.

^ See Debra Livingston, Police Discretion and the Quality of Life in Public Places: Courts, Communities, and the New Policing , 97 Colum. L. Rev. 551, 556 n.14 (1997) (citing Robert C. Ellickson, Controlling Chronic Misconduct in City Spaces: Of Panhandlers, Skid Rows, and Public-Space Zoning , 105 Yale L.J . 1165, 1168, 1217–19 (1996)).

^ See Malcolm M. Feeley, The Process Is the Punishment: Handling Cases in a Lower Criminal Court (1979). For rough estimates of how many defendants plead guilty to avoid prolonged detention, see generally Charlie Gerstein, Note, Plea Bargaining and the Right to Counsel at Bail Hearings , 111 Mich. L. Rev. 1513, 1515 (2013) (“In 2010, in New York City alone, 16,649 defendants were unable to make bail set at one thousand dollars or less,” id . at 1515 n.3, and “[d]efendants who are required to post bail that they cannot afford . . . end up pleading guilty to avoid waiting in jail,” id . at 1515 (citing Douglas L. Colbert, Prosecution Without Representation , 59 Buff. L. Rev. 333, 348–52 (2011))).

^ See Issa Kohler-Hausmann, Misdemeanor Justice: Control Without Conviction , 119 Am. J. Soc . 351, 374 (2013) (discussing “procedural hassle” as a technique for control of vulnerable populations); see also Josh Bowers, Grassroots Plea Bargaining , 91 Marq. L. Rev. 85, 86 (2007).

^ See William J. Stuntz, Plea Bargaining and Criminal Law’s Disappearing Shadow , 117 Harv. L. Rev. 2548, 2563–64 (2004) (arguing that as the severity of the criminal offense decreases, the influence of the substantive law wanes).

^ Bowers, supra note 6, at 1119 (discussing the “innocence problem” in plea bargaining); Natapoff, supra note 4, at 1323–27 (discussing collateral consequences); Gerstein, supra note 9, at 1526 (citing Kevin C. McMunigal, Disclosure and Accuracy in the Guilty Plea Process , 40 Hastings L.J . 957, 987 (1989)).

^ See Livingston, supra note 8, at 591–92; see also Adriaan Lanni, The Future of Community Justice , 40 Harv. C.R.-C.L. L. Rev. 359, 366–67 (2005).

^ Compare, e.g. , Tracey L. Meares & Dan M. Kahan, The Wages of Antiquated Procedural Thinking: A Critique of Chicago v Morales, 1998 U. Chi. Legal F . 197, and Livingston, supra note 8, with , e.g. , Albert W. Alschuler & Steven J. Schulhofer, Antiquated Procedures or Bedrock Rights?: A Response to Professors Meares and Kahan , 1998 U. Chi. Legal F . 215.

^ See Bowers, supra note 10, at 85–86; David Cole, Foreword: Discretion and Discrimination Reconsidered: A Response to the New Criminal Justice Scholarship , 87 Geo. L.J . 1059, 1071–73 (1999).

^ See infra notes 110–114 and accompanying text.

^ See Feeley , supra note 9, at 199 ; Bowers, supra note 10, at 86; Bowers, supra note 6, at 1119; Natapoff, supra note 4, at 1328; Stuntz, supra note 11, at 2568.

^ Sometimes, that can be wearing your pants too low. People v. Martinez, 905 N.Y.S.2d 847, 847 (Crim. Ct. 2010).

^ New York law characterizes many of these minor offenses as noncriminal violations. Nonetheless, the evidence suggests that these offenses create serious long-term problems. E.g ., Kohler-Hausmann, supra note 10, at 383.

^ N.Y. Penal Law § 240.20 (McKinney 2008).

^ N.Y. Penal Law § 140.10 (McKinney 2010 & Supp. 2015).

^ N.Y. Penal Law § 240.35 (McKinney 2008).

^ N.Y . Penal Law § 221.10 (McKinney 2008).

^ N.Y.C. Admin. Code § 10-125[b] (Westlaw through 2014 legislation).

^ See People ex rel . Maxian v. Brown, 570 N.E.2d 223 (N.Y. 1991) (per curiam).

^ Joseph Goldstein, After Budget Cuts, Defendants’ Wait to See a Judge Often Exceeds 24 Hours , N.Y. Times (July 19, 2011), http://www.nytimes.com/2011/07/20/nyregion/new-york-budget-cuts-lead-to-longer-waits-for-arraignment.html .

^ What Can I Expect If I’m Arrested? , Legal Aid Soc’y , http://www.legal-aid.org/en/ineedhelp/ineedhelp/criminalproblem/faq/whatcaniexpectifiamarrested.aspx (last visited Apr. 9, 2015) [ http://perma.cc/K4D8-AZDB ].

^ Mosi Secret, N.Y.C. Misdemeanor Defendants Lack Bail Money , N.Y. Times (Dec. 2, 2010), http://www.nytimes.com/2010/12/03/nyregion/03bail.html .

^ See Human Rights Watch, The Price of Freedom: Bail and Pretrial Detention of Low Income Nonfelony Defendants in New York City 28 n.75, 29 tbl.3 (2010), http://www.hrw.org/sites/default/files/reports/us1210webwcover_0.pdf [ http://perma.cc/NE8R-2G58 ] (noting that those with a misdemeanor conviction comprised 52.6% of those arrested on misdemeanors in New York City, but only 10.0% of those subsequently released on their own recognizance).

^ See Kohler-Hausmann, supra note 10, at 386–87; William Glaberson, Faltering Courts, Mired in Delays , N.Y. Times (Apr. 13, 2013), http://www.nytimes.com/2013/04/14/nyregion/justice-denied-bronx-court-system-mired-in-delays.html .

^ Glaberson, supra note 30; see also Human Rights Watch , supra note 29, at 2 (reporting that the average length of pretrial detention for someone who cannot make bail is 15.7 days).

^ See Kohler-Hausmann, supra note 10, at 375 (“[Defendants] must then sit patiently in a crowded courtroom, sometimes all day, watching the seemingly inscrutable logic of other cases being called and courtroom lulls, waiting for their 60–120 seconds in front of the judge. When the lunch break is called at 1 p.m., the crowd of defendants who have been waiting since 9 a.m. for their case to be called invariably express what could be understated as discontent. . . . If defendants fail to return for their case call after lunch a warrant will [likely] be issued.”).

^ See Issa Kohler-Hausmann, Managerial Justice and Mass Misdemeanors , 66 Stan. L. Rev. 611 (2014). In New York City, 78.2% of all misdemeanor arrests result in either a conviction for a noncriminal violation (28.7%), a conviction for a misdemeanor (19.6%), or an adjournment in contemplation of dismissal (ACD) (29.9%), where the charge stays on a defendant’s record for a year and is reactivated if the defendant is rearrested. Id . at 647 fig.10. In this Essay, we occasionally refer to “guilty pleas” so as to include the ACD. This is because only a straight dismissal gets you out of court without any record that can come back to haunt you, so agreeing to an ACD is tantamount to pleading guilty for our purposes.

^ E.g ., Bowers, supra note 10, at 86; Samuel R. Gross, Convicting the Innocent , 4 Ann . Rev. L. & Soc. Sci . 173, 180 (2008); Samuel R. Gross, Pretrial Incentives, Post-Conviction Review, and Sorting Criminal Prosecutions by Guilt or Innocence , 56 N.Y.L. Sch. L. Rev. 1009, 1014 n.15 (2011/12) (discussing “innocent defendants who plead guilty to avoid the process costs of a criminal prosecution, in particular those who have been held long enough in pretrial detention that they will get to go home if they accept the prosecutor’s offer to plead guilty in return for a sentence of imprisonment that they have already served”); Kohler-Hausmann, supra note 33, at 670; Natapoff, supra note 4, at 1328–29.

^ Natapoff, supra note 4, at 1329 (citing Feeley , supra note 9, at 10).

^ Id . at 1336.

^ Id . at 1317.

^ See Kohler-Hausmann, supra note 33, at 614.

^ See, e.g. , People v. Jones, 878 N.E.2d 1016, 1018 (N.Y. 2007) (“The conduct sought to be deterred under the statute is ‘considerably more serious than the apparently innocent’ conduct of defendant here.” (quoting People v. Carcel, 144 N.E.2d 81, 84 (N.Y. 1957))); People v. Richardson, 913 N.Y.S.2d 549, 554 (Crim. Ct. 2010) (dismissing complaint for failure to allege mens rea of “intent to cause public inconvenience, annoyance or alarm,” id . at 552 (quoting N.Y. Penal Law § 240.20 (McKinney 2008)), where a police officer “observed the defendant shouting obscene language to wit: ‘f**k off n[**]ga, stop f**king with me’ in a public area,” id . at 551); People v. Stephen, 581 N.Y.S.2d. 981, 982 (Crim. Ct. 1992) (holding that defendant had not engaged in “violent, tumultuous or threatening behavior” within the meaning of Section 240.20 when he screamed at a police officer “Fuck you . . . If you were in jail, I’d fuck you, you’d be my bitch . . . If you didn’t have that gun and badge, I’d kick your ass, I’d kill you,” id . at 982 (internal quotation marks omitted), and where “a crowd of approximately 15–20 people gathered who joined the defendant yelling, ‘Yeah, fuck the police,’” id . at 982–83).

^ See, e.g. , People v. Figueroa, 948 N.Y.S.2d 539, 541 (Crim. Ct. 2012) (dismissing open container violation because “[w]hile the arresting officer’s professional training and sense of smell may be sufficient to support his conclusion that defendant was drinking beer, such does not support the conclusion that the beer contained more than one-half of one percent (.005) of alcohol by volume because the beverage could have very well been non-alcoholic beer”).

^ See Bowers, supra note 10, at 85–86; Kohler-Hausmann, supra note 33, at 650 (describing disorderly conduct as “an all-purpose generic charge” that does not indicate “that the defendant is guilty of any specific illegal conduct”).

^ See Bowers, supra note 10, at 85–86.

^ See Loper v. N.Y.C. Police Dep’t, 999 F.2d 699, 701, 705–06 (2d Cir. 1993).

^ Elva Rodriguez et al., Beggar Gets Change, Wins Suit Forcing City to Lay Off Panhandlers , N.Y. Daily News (June 11, 2005, 12:00 AM), http://www.nydailynews.com/archives/news/beggar-change-wins-suit-forcing-city-lay-panhandlers-article-1.624527 [ http://perma.cc/557A-MYP3 ]. Professor Josh Bowers was Eddie Wise’s attorney, and describes Wise’s story in greater detail in Bowers, supra note 10, at 85.

^ Bowers, supra note 10, at 86; Rodriguez et al., supra note 45.

^ Rodriguez et al., supra note 45.

^ Kati Cornell Smith, Beggar Buster Blues — Judge Blasts NYPD , N.Y. Post (Nov. 30, 2006, 5:00 AM), http://nypost.com/2006/11/30/beggar-buster-blues-judge-blasts-nypd [ http://perma.cc/NFE4-8NEG ].

^ See N.Y . Penal Law § 221.10 (McKinney 2008) .

^ 1977 N.Y. Laws 478–83 (codified at N.Y. Penal Law § 221.05 (McKinney 2008)) .

^ Human Rights Watch, A Red Herring: Marijuana Arrestees Do Not Become Violent Felons 1 (2012) , http://www.hrw.org/sites/default/files/reports/us_mj1112webwcover.pdf [ http://perma.cc/X99Z-N7C4 ]. We thank Issa Kohler-Hausmann, a coauthor of this report, for her helpful comments on this point.

^ Id . at 11 (quoting N.Y . Penal Law § 221.10).

^ Marijuana Arrest Project , Bronx Defenders , http://www.bronxdefenders.org/programs/the-marijuana-arrest-project (last visited Apr. 9, 2015) [ http://perma.cc/2CFC-AXBR ].

^ William Glaberson, In Misdemeanor Cases, Long Waits for Elusive Trials , N.Y. Times, ( Apr. 30, 2013), http://www.nytimes.com/2013/05/01/nyregion/justice-denied-for-misdemeanor-cases-trials-are-elusive.html .

^ Or, in New York, accepts an ACD that stays on his record for a year. Kohler-Hausmann, supra note 33, at 648–50.

^ See 42 U.S.C. § 1983 (2012).

^ See supra note 33.

^ Kohler-Hausmann, supra note 33, at 668 (“If a defendant with [an ACD] from a prior arrest is brought back to criminal court on a new arrest, the offer on the new case will go up along one vector or another — the seriousness of the mark, the conditions he must satisfy to be granted the disposition, or the formal sentence.”).

^ See id . at 648. Indeed, the purpose of New York’s misdemeanor system may be to mark defendants so that they can be treated differently when they are subsequently arrested. See id . at 649.

^ See generally Feeley, supra note 9.

^ See generally Livingston, supra note 8.

^ See generally Kohler-Hausmann, supra note 33 (arguing that prosecutors’ principal goal in misdemeanor and violation cases — in New York, at least — is to mark defendants for future encounters).

^ Id . at 667–68 (citing an interview with a New York public defender).

^ See Kohler-Hausmann, supra note 33, at 668–70.

^ See generally Ellickson, supra note 8.

^ See Herman Goldstein, Policing a Free Society 9 (1977) (“The police have come to be viewed as capable of handling every emergency.”); Peter C. Patch & Bruce A. Arrigo, Police Officer Attitudes and Use of Discretion in Situations Involving the Mentally Ill , 22 Int’l J. L. & Psychiatry 23, 23 (1999).

^ See Daniel C. Richman & William J. Stuntz, Essay, Al Capone’s Revenge: An Essay on the Political Economy of Pretextual Prosecution , 105 Colum. L. Rev. 583, 586 (2005) (arguing that prosecutors must consider the signals their prosecutions send to the public).

^ See Glanville Williams, The Aims of the Law of Tort , 4 Current Legal Probs . 137, 155 (1951) (“To stigmatise the ordinary person by the epithets ‘criminal,’ ‘offender,’ and ‘conviction,’ is itself a punishment, and, from a deterrent point of view, it is important that the emotion invoked by these words should be kept at full strength and not weakened by their indiscriminate application.”); see also Stuntz, supra note 11, at 2550 (identifying “a basic irony about criminal law: the more it expands, the less it matters”); William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice , 107 Yale L.J . 1, 7 (1997).

^ Cf . Emile Durkheim, The Division of Labor In Society (W.D. Halls trans., Free Press 1984) (1893) (defining “criminal” acts as those that shock the collective conscience of society).

^ Indeed, New York City has refused to disclose (and may not even have kept track of) how many convictions were generated in non-felony cases between 2002 to 2010. Ray Rivera & Al Baker, Data Elusive on Low-Level Crime in New York City , N.Y. Times (Nov. 1, 2010), http://www.nytimes.com/2010/11/02/nyregion/02secrecy.html .

^ Kohler-Hausmann, supra note 33, at 654 (“In New York City over 57% of all misdemeanor and violation cases reach a disposition at arraignment.”).

^ See id . at 650 (noting that fewer than 0.5% of misdemeanor cases go to trial).

^ Consider Michigan law, which criminalizes being a “disorderly person” but “provides no standards as to what is a public disturbance.” People v. Gagnon, 341 N.W.2d 867, 869 (Mich. Ct. App. 1983) (per curiam).

^ See Kohler-Hausmann, supra note 33, at 650 (“In practice, a ‘dis con’ serves as an all-purpose generic charge to mark the defendant for a specific length of time, not to indicate that the defendant is guilty of any specific illegal conduct.”); cf . Old Chief v. United States, 519 U.S. 172, 189 (1997) (expressing concern that when a prior conviction is an element of an offense, withholding the facts of the earlier case “may be like saying, ‘never mind what’s behind the door,’ and jurors may well wonder what they are being kept from knowing”).

^ See Kohler-Hausmann, supra note 33, at 674–76 (describing the results of an empirical study of New York City arrest data).

^ See id . at 690.

^ See Goldstein, supra note 26 (describing pre-arraignment detentions lasting up to three days and an average detention length of thirty-one hours).

^ See, e.g. , Livingston, supra note 8, at 561 (“Courts cannot ‘solve’ the problem of police discretion by invalidating reasonably specific public order laws — as some have attempted — without seriously impairing legitimate community efforts to enhance the quality of neighborhood life.”).

^ Compare, e.g. , Dan M. Kahan & Tracey L. Meares, Foreword: The Coming Crisis of Criminal Procedure , 86 Geo. L.J . 1153 (1998), Livingston, supra note 8, and Meares & Kahan, supra note 14, with Alschuler & Schulhofer, supra note 14, Cole, supra note 15, and Natapoff, supra note 4.

^ E.g ., Joseph Goldstein, Marijuana May Mean Ticket, Not Arrest, in New York City , N.Y. Times ( Nov. 9, 2014), http://www.nytimes.com/2014/11/10/nyregion/in-shift-police-dept-to-stop-low-level-marijuana-arrests-officials-say.html ; Editorial, The Truth Behind Stop-and-Frisk , N.Y. Times (Sept. 2, 2011), http://www.nytimes.com/2011/09/03/opinion/the-truth-behind-stop-and-frisk.html .

^ See, e.g. , Kahan & Meares, supra note 79, at 1163–64.

^ Cole, supra note 15, at 1061 (citing Kahan & Meares, supra note 79).

^ 527 U.S. 41 (1999).

^ Id . at 97 (Scalia, J., dissenting) (alteration in original) (internal quotation marks omitted). Morales is the most recent in a line of cases in which the Supreme Court invalidated local quality-of-life ordinances on vagueness grounds. See Kolender v. Lawson, 461 U.S. 352 (1983); Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Coates v. City of Cincinnati, 402 U.S. 611 (1971).

^ Alschuler & Schulhofer, supra note 14, at 225–37.

^ Meares & Kahan, supra note 14, at 209–14.

^ See Dorothy E. Roberts, Foreword: Race, Vagueness, and the Social Meaning of Order-Maintenance Policing , 89 J. Crim. L. & Criminology 775, 777–78 (1999) (“For the last several decades, conservative commentators have called for a relaxation of the vagueness doctrine as well as procedural restraints on police discretion to permit bolder law enforcement efforts to investigate, punish, and prevent crime.”).

^ Contra , e.g. , Livingston, supra note 8, at 561 (“Courts cannot ‘solve’ the problem of police discretion by invalidating reasonably specific public order laws — as some have attempted — without seriously impairing legitimate community efforts to enhance the quality of neighborhood life.”).

^ Feeley, supra note 9.

^ E.g ., Fred P. Graham, The Due Process Revolution: The Warren Court’s Impact on Criminal Law (1970) .

^ E.g ., Kohler-Hausmann, supra note 10, at 374–81.

^ See Human Rights Watch, supra note 51, at 19.

^ Id . at 4.

^ Each borough of New York City has its own district attorney.

^ Human Rights Watch, supra note 51, at 5; Thomas Kaplan & John Eligon, Divide in Albany Kills Proposal on Marijuana , N.Y. Times (June 19, 2012), http://www.nytimes.com/2012/06/20/nyregion/cuomo-bill-on-marijuana-doomed-by-republican-opposition.html .

^ Professors Tracey Meares and Dan Kahan argue rancorously with Professors Albert Alschuler and Stephen Schulhofer about how the political process in Chicago ended up generating the anti-gang loitering ordinance. Compare Meares & Kahan, supra note 14, at 199–200 (claiming that black communities on the South and West Sides of Chicago birthed the ordinance), and Tracey L. Meares & Dan M. Kahan, Black, White, and Gray: a Reply to Alschuler and Schulhofer , 1998 U. Chi. Legal F . 245, 247–51 (same), with Alschuler & Schulhofer, supra note 14, at 217–20 (arguing that aldermen from predominantly white wards were the real movers behind the ordinance). Both sides do agree that the process was loud, open, and unusually prominent in the eyes of citizens and police.

^ See generally Merrick Bobb, Civilian Oversight of the Police in the United States , 22 St. Louis U. Pub. L. Rev. 151 (2003).

^ See, e.g. , Human Rights Watch, Shielded from Justice: Police Brutality and Accountability in the United States 140–44 (1998), http://www.hrw.org/reports/pdfs/u/us/uspol986.pdf [ http://perma.cc/GTA6-AUCP ] (discussing consent decrees pursuant to 42 U.S.C. § 14141); Debra Livingston, Police Reform and the Department of Justice: An Essay on Accountability , 2 Buff. Crim. L. Rev. 815, 844–47 (1999).

^ Cf., e.g. , Neal Kumar Katyal, Internal Separation of Powers: Checking Today’s Most Dangerous Branch from Within , 115 Yale L.J . 2314 (2006).

^ Goldstein, supra note 80.

^ See, e.g. , Stuntz, supra note 11, at 2550–58.

^ For a tiny sample of the vast literature on this subject, see Adil Ahmad Haque, Lawrence v. Texas and the Limits of the Criminal Law , 42 Harv. C.R.-C.L. L. Rev. 1, 33–34 & n.145 (2007) (citing Dan M. Kahan, The Anatomy of Disgust in Criminal Law , 96 Mich. L. Rev. 1621, 1623 (1998) (book review)).

^ We discuss briefly below why we believe this proposal is unlikely to significantly increase the volume of total arrests.

^ See, e.g. , Livingston, supra note 8, at 640; see also Joshua Partlow, Holiday Rush at Mexico City’s Hangover Prison , Wash. Post (Dec. 26, 2013), http://www.washingtonpost.com/world/the_americas/holiday-rush-at-mexico-citys-hangover-prison/2013/12/26/4edfcf10-6dcc-11e3-a5d0-6f31cd74f760_story.html [ http://perma.cc/2BL7-RAZ4 ]. On the subject of history, it is also worth noting that the earliest Western police forces were permitted — indeed, required — to effect noncriminal, low-process arrests. Early common law arrest doctrines recognized a distinction between the authority of the police in matters of crime and the authority of police in matters of order. For example, the Statute of Winchester, which established London’s first police force in 1285, provided that watchmen were authorized and charged “‘as . . . in Times [passed]’ to ‘watch the Town continually all Night, from the Sun-setting unto the Sun-rising’ and were directed that ‘if any Stranger do pass by them, he shall be arrested until Morning.’” Atwater v. City of Lago Vista, 532 U.S. 318, 333 (2001) (quoting Statute of Winchester, 1285, 13 Edw. 1, stat. 2, c. 4 (Eng.)); see also Thomas Y. Davies, Correcting Search-and-Seizure History: Now-Forgotten Common-Law Warrantless Arrest Standards and the Original Understanding of “Due Process of Law ,” 77 Miss. L.J . 1, 58 (2007) (“‘A watchman may arrest a night walker by a warrant in law.’ . . . In effect, being out after dark in town was so suspicious that it was grounds for a temporary arrest . . . .” (quoting 2 Edward Coke , The Institutes of the Lawes of England 52 (1642))). We thank Josh Bowers for his helpful comment on this point.

^ New York currently has serious problems complying with a twenty-four-hour deadline for arraignments. See Goldstein, supra note 26. That said, this deadline should be much easier to comply with, though compliance is by no means a certainty.

^ Cf . Jeffrey M. Skopek, Anonymity, the Production of Goods, and Institutional Design , 82 Fordham L. Rev. 1751 (2014) (discussing various aspects of anonymity in the modern legal structure).

^ To again use New York City as an example, these detentions should be at the local station house, rather than in the currently overcrowded jails. Even short periods of time in overcrowded jails can be traumatizing and degrading. Station-house lockups — where police are generally present nearby and periods of detention are very brief — should serve to minimize the cruelty of detention.

^ See Stuntz, supra note 11, at 2563–64.

^ See Natapoff, supra note 4, at 1332.

^ See id . at 1333.

^ See, e.g. , William J. Bratton, The New York City Police Department’s Civil Enforcement of Quality-of-Life Crimes , 3 J.L. & Pol’y 447 (1995) (NYPD Commissioner discussing the city’s efforts at policing quality-of-life crimes); Robert C. Ellickson, supra note 8; Dan M. Kahan, Reciprocity, Collective Action, and Community Policing , 90 Calif. L. Rev. 1513 (2002).

^ See Goldstein, supra note 66, at 9.

^ Nicola Lacey, Humanizing the Criminal Justice Machine: Re-animated Justice or Frankenstein’s Monster? , 126 Harv. L. Rev. 1299, 1299–1300 nn.1–7 (2013) (reviewing Stephanos Bibas, The Machinery of Criminal Justice (2012)) (collecting books and articles on the subject of policing and punishment in the United States).

^ See, e.g. , Human Rights Watch , supra note 51, at 16 n.47 (“[W]e need[] to be more selective about who [ sic ] we [are] arresting on quality-of-life infractions. When a team of cops fills up a van with arrestees, the booking process can take those cops out of service for a whole day in some cities. The public can’t afford to lose that much police protection for a bunch of first-time offenders, so the units enforcing quality-of-life laws [must] be sent where the maps show concentrations of crime or criminals, and the rules governing the stops have to be designed to catch the sharks, not the dolphins.” (first alteration in original) (quoting Jack Maple , The Crime Fighter: Putting the Bad Guys Out of Business 155–56 (1999))).

^ See id . at 16–18 (disputing public safety benefits of marijuana arrests).

^ See, e.g. , Kohler-Hausmann, supra note 33, at 645.

^ See supra notes 42–48 and accompanying text.

^ See supra notes 97–100 and accompanying text.

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In This Article Expand or collapse the "in this article" section Police Discretion

Introduction, classic and contemporary studies of general interest.

• Controlling Police Discretion
• Traffic Enforcement
• Police Use of Force
• Police Discretion and People of Color
• Police Discretion and Domestic Disturbances

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Police Discretion by Benjamin Brown LAST REVIEWED: 26 July 2022 LAST MODIFIED: 26 July 2022 DOI: 10.1093/obo/9780195396607-0325

Police discretion has long been, and remains, a controversial matter. Contrary to the notions that the law is to be uniformly enforced in all places and at all times, and that all persons are to be treated equally under the law, the fact of the matter is that law enforcement is, by its very nature, a discretionary practice. Due to factors such as the nebulous nature of the law, the magnitude of crime, the limited resources available to law enforcement (and other criminal justice) agencies, public perceptions of and support for the police, constitutional restrictions on government power, and the fact that much of the work of the police consists of handling noncriminal matters, police officers must exercise considerable discretion in serving the public. To date, most research on police discretion has assessed the discretion exercised by patrol officers via analyses of police decisions on three types of actions: arrests, use of force, and traffic stops and the consequences thereof (e.g., vehicular search, citation issuance, arrest). The good news is that one of the most consistent findings in the empirical literature is that police decisions to conduct stops, conduct searches, issue citations, make arrests, and use physical force are significantly influenced by legal factors such as offense seriousness, the presence of evidence of criminal activity, and resistance from a suspect. The not so good news is that another consistent finding in the literature is that the discretionary actions of the police can be influenced by extralegal factors such as the neighborhood where the actions occur and the age, demeanor, gender, and race/ethnicity of a suspect. This bibliography provides summaries of numerous studies of police discretion. For organizational purposes, summaries of a few classic and contemporary works of general interest are provided first, followed by summaries of several studies of police practices and policies designed to shape the exercise of discretion. Next, studies of arrest, of traffic enforcement, and of police use of force are discussed. Because many studies have indicated that police discretionary actions can be influenced by the race/ethnicity of a suspect and because relations between the police and people of color have been strained for so long, this bibliography also contains a section dedicated to studies of racial/ethnic profiling and police interaction with people of color. Finally, because of the increased attention afforded to domestic violence over the past few decades, because the police have frequently been criticized for their responses to incidents of domestic violence, and because numerous new laws and policies pertinent to the police handling of domestic disturbances have been implemented (in the United States and abroad), an additional section is provided that contains summaries of several studies of police handling of domestic disturbances.

Throughout the first half of the twentieth century, the discretion of criminal justice officials received little public scrutiny. The police, sheriffs, prosecutors, judges, and corrections officials enjoyed extraordinary leeway in determining when, where, and how to enforce the law. As Walker 1993 noted, it was not until the mid-twentieth century that the exercise of discretion by criminal justice officials was openly acknowledged and became an issue of concern. During the 1960s, Bittner 1967 , Goldstein 1960 , and Remington 1965 showed the law is not uniformly enforced and underscored the enormous discretionary authority afforded to the police. Also worth mention, Wilson 1968 documented substantial disparities in the enforcement of the law between police departments in different cities and the manner in which law enforcement was shaped by politicians and police administrators. Additionally, it was during the 1960s that crime rates escalated and the public became increasingly concerned about the problem. Crime became such a political hot button that President Lyndon B. Johnson established the President’s Commission on Law Enforcement and the Administration of Justice to investigate crime and the American criminal justice system. In its 1967 report, The Challenge of Crime in a Free Society , the President’s Commission emphasized the central role that human discretion plays throughout the criminal justice system and noted that the decisions routinely made by the police—decisions such as whether to break up a street corner gathering, intervene in a domestic dispute, stop a motorist, search a pedestrian, or make an arrest—“are the heart of police work” (p. 103). Since that time, interest in police decisions and the factors that influence such decisions have continued to receive considerable attention from the public, policymakers, and researchers. For instance, Brown 1981 , Goldstein 1977 , Mastrofski 2004 , Worden 1989 , and Johnson and Olschansky 2010 showed that the police must be afforded broad discretionary leeway owing to the limited resources available to the police and the myriad situations they are called upon to handle, but as a result police officers frequently engage in discriminatory practices. Additionally, researchers with the US Department of Justice collect and analyze data on police discretion and interaction between the police and the citizenry; see, for example, Davis, et al. 2018 .

Bittner, Egon. 1967. The police on skid row: A study of peace keeping. American Sociological Review 32.5: 699–715.

DOI: 10.2307/2092019

Analyzes observational and interview data gathered via a year-long study of the police in two unidentified police departments, and shows that police officers in dilapidated neighborhoods exercise considerable discretion and that arrests are rarely (if ever) made simply because the law has been violated. Bittner demonstrates how police officers use the law as a tool to help keep the peace, with arrests being made for multiple reasons, such as to prevent a situation from becoming volatile, to satisfy bystanders’ expectations that an arrest be made, or because a person potentially posed a danger to himself or herself.

Brown, Michael K. 1981. Working the street: Police discretion and the dilemmas of reform . New York: Russell Sage Foundation.

Analyzes observational data, survey data, and official data gathered in three cities in Southern California and indicates that police decisions are influenced by resource availability and the bureaucratic characteristics of police departments. Also suggests that the police rely upon stereotyping when deciding whom to stop, search, and arrest, considering factors such as cleanliness and clothing, race/ethnicity, the condition of a vehicle, and potential incongruities in a situation (e.g., a poorly dressed young male driving an expensive new vehicle).

Davis, Elizabeth, Anthony Whyde, and Lynn Langton. 2018. Contacts between police and the public, 2015 . NCJ 2511405. Washington, DC: Bureau of Justice Statistics.

This report is part of an ongoing series of federal studies of contact between police officers and the public. Via analyses of data from the Police-Public Contact Survey, the authors show the extraordinary breadth of contact between the citizenry and the police, estimating that roughly one out of every five persons age sixteen or older in the United States had some contact with the police in 2015. The report provides analyses of survey data pertinent to calls to the police as well as traffic stops, police use of force, and satisfaction with the police.

Goldstein, Herman. 1977. Policing a free society . Cambridge, MA: Ballinger.

Analyzes the role of the police in a democratic society. Goldstein shows that the police are more than a crime control agency and dedicate considerable resources to handling complicated noncriminal matters, inclusive of resolving disputes between individuals and groups, and facilitating the flow of people and traffic. The study emphasizes the importance of police discretion and the complex questions generated by allowing the police broad discretionary authority (e.g., how to control abuse of power, how the general public shapes police actions).

Goldstein, Joseph. 1960. Police discretion not to invoke the criminal process: Low-visibility decisions in the administration of justice. Yale Law Journal 69.4: 543–594.

DOI: 10.2307/794445

Analyzes observational data gathered as part of the American Bar Foundation’s pilot study of the American criminal justice system. The study indicates that full enforcement of the law is impossible, that discretion is essential to police work, and that there is a need for appraisal and review of police activities. The study suggests that appraisal and review of police decisions could facilitate the fair administration of justice, inform policymakers of the impact of and need for effective laws, and of the need to eliminate obsolete laws.

Johnson, Richard R., and Erica L. Olschansky. 2010. The ecological theory of police response: A state police agency test. Criminal Justice Studies 23.2: 119–131.

DOI: 10.1080/1478601X.2010.485465

Analyzes data from the Pennsylvania State Police, the US Census Bureau, and the Uniform Crime Reports to ascertain what variables may impact “police vigor” (a composite of several variables, such as the number of traffic stops per trooper, average number of arrests per trooper, etc.). The study indicates that state troopers in areas with high crime rates made more arrests, but fewer traffic stops than state troopers in areas with low rates of crime, suggesting that officers who are busy handling crime have less time for matters such as traffic stops.

Mastrofski, Stephen D. 2004. Controlling street-level police discretion. Annals of the American Academy of Political and Social Science 593:100–118.

DOI: 10.1177/0002716203262584

Summarizes and critiques research on police discretion, with special attention afforded to methodological, theoretical, and policy issues. The study indicates that scholars have neglected to consider how civil rights organizations, federal investigators, and police unions struggle to influence the dialogue and debate over matters of police discretion such as allegations of racial/ethnic profiling by the police. It also suggests that much of the research on police discretion suffers from weak measurement and validity issues.

President’s Commission on Law Enforcement and the Administration of Justice. 1967. The challenge of crime in a free society . Washington, DC: US Government Printing Office.

The Challenge of Crime in a Free Society is the summary report of the President’s Commission on Law Enforcement and the Administration of Justice’s eighteen-month study of crime and the nation’s justice system. In addition to describing the problem of crime (inclusive of sections devoted specifically to juvenile delinquency, organized crime, drug use, and “drunkenness”), the report provides the Commission’s findings and suggestions for reforms for each major component of the criminal justice system: the police, the courts, and corrections.

Remington, Frank J. 1965. The role of police in a democratic society. Journal of Criminal Law and Criminology 56.3: 361–365.

This is a brief but important work on the police and police discretion. Remington—who, among other things, served on the US Supreme Court’s Advisory Committee on Criminal Rules, was a consultant to the President’s Commission on Law Enforcement and the Administration of Justice, and a professor of law at the University of Wisconsin—was one of the first notable scholars to study police discretion. Remington’s research indicates that police discretion is necessary because of the ambiguity and scope of the law and the limited resources of the police.

Walker, Samuel. 1993. Taming the system: The control of discretion in criminal justice, 1950–1990 . Oxford: Oxford Univ. Press.

DOI: 10.1093/acprof:oso/9780195078206.001.0001

Argues that the public acknowledgment that criminal justice officials exercise discretion altered the study of the criminal justice system. Walker describes the evolution of the criminal justice system and the role of discretion in the work done by the police and the courts. Additionally, he addresses how the law and criminal justice system may affect behavior, and the manner in which public opinion and political shifts impact the law, the criminal justice system, and the exercise of discretion.

Wilson, James Q. 1968. Varieties of police behavior: The management of law and order in eight communities . Cambridge, MA: Harvard Univ. Press.

DOI: 10.4159/9780674045200

Analyzes data from observations, interviews, and official records gathered from eight police departments located in three states, as well as data from the International City Management Association and the Uniform Crime Reports. Wilson draws a distinction between law enforcement and order maintenance, and suggests the primary responsibility of the police is maintaining order. The study indicates that police officers have considerable leeway to determine where, when, and how they maintain order, and that their decisions are shaped by the demands of the area, available resources, and the operational style of the department.

Worden, Robert E. 1989. Situational and attitudinal explanations of police behavior: A theoretical reappraisal and empirical assessment. Law & Society Review 23.4: 667–711.

DOI: 10.2307/3053852

Analyzes observational and survey data collected in cooperation with police departments in the metropolitan areas of Rochester, New York; Tampa-St. Petersburg, Florida; and St. Louis, Missouri; as part of the Police Services Study. The study examines police actions in different situations, ranking the actions according to their severity, and finding that attitudinal and situational variables had little impact on police behavior and that “protocol analysis” may be more useful for understanding police behavior than conventional research methodologies.

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Pros And Cons Of Police Discretion Essay Example

Police Discretion is the power to make decisions about how and when to enforce laws without interference from a higher authority. This power has become increasingly important in recent years as police forces across the country have been put under intense scrutiny for their use of excessive force, particularly against minority groups. Police officers are given discretion every day on what they do at work and there are both positives and negatives that come with this. In this essay, we will discuss some reasons why you should be aware of your rights as a citizen as well as the pros and cons of being subject to police discretion.

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Essay Sample on Pros And Cons Of Police Discretion

• Thesis Statement of Pros And Cons Of Police Discretion Essay
• Introduction of Pros And Cons Of Police Discretion Essay
• Pros/Advantages of police discretion
• Cons/Disadvantages of police discretion
• How to influence police discretion?

Thesis Statement of Pros And Cons Of Police Discretion Essay Police Discretion gives a police officer the power to decide how to handle a situation without being told what to do by a higher authority. Citizens should be aware of their rights in such cases and understand when an officer is given discretion. Introduction of Pros And Cons Of Police Discretion Essay Police discretion is the power of a police officer to make decisions about how and when to enforce laws without interference from a higher authority. For example, an officer can decide not to ticket someone who goes through a red light if they are running late for an important meeting. Police officers are given discretion daily on what they do at work. The idea behind this is that each case has many variables and it would be impossible to create specific guidelines for every situation that could come up during their shift  There are both positives and negatives that come with police discretion. Main Body of Pros And Cons Of Police Discretion Essay The cases are rising very tremendously where police are using the right of discretion for personal benefits. But at the same time, we cannot see each police officer with the same angel as many of them are loyal and using their rights in a purposeful manner. Police discretion literally means the freedom that is given to the police at the site of crime where they can take decisions regarding what to do further with the criminal and how the proceedings will continue against him. Many times police use this freedom in the right way and provide justice to those who do not want to move around the courts. But at the same time, there are instances when innocent people have to suffer a lot because of this discretion right given to the Police of a country by the constitution and its government. For example, the maximum use of this freedom is used when a person who belongs to the higher status commit a crime to that of a lower level people having no strong financial background. The persons who have committed crimes give big chunks of money to police and in return, they become liberal to the fear of any inquiry and such proceedings further. The victim under such a scenario becomes silent and does not get the justice which he or she better deserve as the right from the constitution given to them. Get Non-Plagiarized Custom Essay on Advantages and Disadvantages Of Police Discretion Essay in USA Order Now Pros/Advantages of police discretion Police have expertise that may not be found in the written law. Knowledge and experience police officers have can’t always be found in the law. Since they interact with people and arrest people every day, there is a lot of knowledge they have that isn’t in the books. Flexibility allows for officers to adapt to changing conditions and respond quickly to new developments. Without discretion, it would be difficult to determine what steps should be taken in future situations that arise when specific rules don’t apply. Prevents police misconduct by allowing the officer to control what he or she records about a situation Helps protect citizens from being over-policed or under policed based on race or ethnicity It is much easier for police to over-police certain ethnicities than others which can lead to racism and unequal enforcement of laws in general. Allowing officers discretion makes them more aware of the multiple factors that determine what action should be taken in a situation and keeps them from being biased when it comes to who they arrest and who they let go. Also see: Short Sociological Sample Essay on Police Brutality [ Solutions, Statistics ] Cons/Disadvantages of police discretion Gives officers too much power which can lead to corruption and abuse of power Can go against public safety if it interferes with other officers’ ability to do their job or puts officers in unnecessary danger. An officer might use his/her own ideas about what is moral as opposed to following written law. Can result in unequal enforcement of laws, creating unfair outcomes Cannot be easily regulated or documented. Police can arrest someone on more serious charges if they catch them committing a smaller crime during the process of another arrest. Inconsistent decisions might develop public disrespect for law enforcement and the court system Police snatching the rights of common people on regular basis and no measure are being taken to control such cases which are rising like anything with the passage of every other day. The things that can be done to suppress such crimes are not working because from top to bottom every minister, politician, and the officer is enmeshed in the quagmire of corruption to a very high level and thus nobody is left behind to take care of such issues easily. Buy Customized Essay on Advantages and Disadvantages Of Police Discretion Essay At Cheapest Price Order Now Where the use of this Police discretion is being utilized by the police to satisfy their personal needs of earning by releasing the criminals, some good things are also from this freedom that is being received from the honest police officers. For instance at the site of crime sometimes those people are arrested by the police who are not guilty but are trapped by the others. When such people are arrested by police officials and turns out to be innocents then their prestige and reputation cannot be reversed in society. To avoid such conditions police are given the sort of freedom mentioned here. in this world which is full of corruption, there are people who do not bother about the status of the victim and only give fair decisions by using their rights in the best way. That is who the positive aspect of police discretion can be seen by the people around the world by the cops of their own country. The negative utilize of liberty is more common as compared to its utilization in a positive way. As we can see how innocent people are dying in the custody of police and the way upper-class criminals are treated in the prison. The difference between the two is very high where every facility is provided to the upper-class people in the prison and shown to the society that they are kept like any other criminal. How to influence police discretion? Have an idea of what your rights are if you find yourself subject to the discretion Make sure that you cooperate with officers but do not give them anything they could use against you later on if it is not necessary If the situation allows, record detailed notes about what transpired so there’s proof of events if needed Remain respectful at all times Know that this officer will not be the only one who comes into contact with you so if anything happens, there are other officers who can back you up If there are any witnesses to the event, try to get their information for proof if possible Hire USA Experts for Advantages and Disadvantages Of Police Discretion Essay Essay Order Now Conclusion Police discretion has become an increasingly important topic in today’s society where police officers have been under scrutiny for their use of excessive force against minority groups. Police Discretion gives a police officer the power to decide how to handle a situation without being told what to do by a higher authority. The pros and cons of police discretion both follow logical reasoning but it is ultimately up to each individual whether they think this power should remain or go away. Citizens should be aware of their rights in such cases and understand when an officer is given the discretion to ensure that everyone has equal protection under the law.

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Do police officers have too much or too little discretion?

A question posted recently on Quora asked, “ Do police officers have too much or too little discretion? ” Police officer Christopher Hawk gave his opinion on the topic, below. Check it out and add your own thoughts in our comments section.

Officer discretion is a powerful, basic tool in policing. Removing officer discretion by creating “must arrest” offenses would result in too many unnecessary arrests, while creating “can’t arrest” offenses would result in people ignoring the existing laws.

First, who would decide which crimes are “must arrest” or “can’t arrest”? One of the reasons police have discretion is so they may take the totality of the circumstances into consideration while investigating a particular incident to help determine the need for an arrest. While many crimes are fairly straightforward, there are also those investigations which require consideration of other issues.

For instance, imagine a law requiring that all people who are caught driving with a revoked driver’s license MUST be arrested. Now, imagine that you stop a car with a revoked driver, but the driver is taking his/her injured child to the hospital emergency room. Do you think it would be appropriate to arrest the driver in this situation?

Now, imagine that police aren’t allowed to arrest anyone for driving with a revoked driver’s license — officers may only cite the driver and tow the car. What is the appropriate course of action when you have stopped a driver who has ten prior Driving While Revoked citations on his/her record, but has decided to drive to the corner store for a six-pack of beer?

An officer might make a custodial arrest for an offense knowing that the prosecutor probably won’t go forward with charges. This arrest can still be useful for a variety of reasons:

• The offender is a public nuisance and needs to be removed from the street

• Other people watching the offender know that arrest is a viable option

• A night sitting in jail, followed by a morning in arraignment court can be a valuable lesson to a low-level offender

An officer might also investigate an incident where all the technical elements of an offense have been met, but still decide not to arrest a person because:

• Mitigating factors — perhaps the offender did something that was technically illegal, but had a reasonable explanation for it?

• Additional investigation needed — while the officer has proof of the basic elements of a crime, further investigation may be needed to determine additional crimes or conspirators.

• Overriding circumstances — A suspect may have committed a particular crime, but there are other reasons why an arrest is not made (young children in the home with no available child care, consideration of manpower issues, etc).

The second part of the question asks what alternatives are available, rather than using discretion? Someone might want to create a flowsheet of some type for an offense, but it would be incredibly difficult to create a flowsheet or matrix which could take all of the various issues of an incident into consideration.

Some agencies have what’s called a “felony review” process, wherein officers contact an on-call prosecutor prior to making a felony arrest. The prosecutor reviews the facts of the case and tells the officer whether to make a custodial arrest or release the suspect and file a report. I know some officers who work under this process and they have mixed views about it.

“The Question” section brings together user-generated articles from the Police1 Facebook page based on questions we pose to our followers, as well as some of the best content we find on Quora, a question-and-answer website created, edited and organized by its community of users who are often experts in their field. The site aggregates questions and answers for a range of topics, including public safety.

The views and opinions expressed in the questions and answers posted directly from Quora do not necessarily reflect those of P1.

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