Discretionary Justice

Police Discretion

Criminologists, sociologists, and political scientists have devoted a significant amount of energy to the study of police behavior and decision making. As Walker (1993) argues, however, scholarly and political inquiries into the issue of discretionary decision making by the police have historically centered on problems of police misconduct rather than routine police activity. The study of police discretion is complex because police officers must make discretionary decisions at a variety of levels. For example, police officers routinely decide whom to stop, whom to question, whom to detain, and whom to arrest without formal guidance or approval from supervisors.

The majority of research on police discretion has focused on an officer's decision to make an arrest or give a citation. This research has consistently shown that although a number of factors affect an officer's decision to take formal action, the seriousness of the offense is the most significant legal factor found to increase the likelihood of arrest.

The widespread adoption of mandatory arrest policies in domestic violence incidents provides an interesting example of how policymakers have attempted to control police discretion about when an arrest is warranted. Until the 1970s, many police departments nationwide avoided making arrests in domestic violence incidents. Following a high-profile lawsuit in New York City, that city's police department adopted a policy that mandated arrests in domestic felony assault cases. The New York policy specifically stated that the marriage of the assaulting parties would not constitute a legitimate reason to refuse to arrest. As agencies began adopting mandatory arrest policies in response to [Page 528]domestic felony assault cases, the Police Foundation sponsored a study of mandatory arrests in Minneapolis that confirmed that arrest was more successful at deterring future violence than was either requiring mediation or separating the couple (Sherman and Berk 1984). Although the findings of the Minneapolis study have subsequently been challenged, police departments nationwide instituted mandatory arrest policies in cases of domestic violence. While assessment of the success of mandatory arrest policies in reducing future violence continues, little attention focuses on officer compliance with the policies or on evaluation of how the policies have changed police perceptions about the seriousness of domestic violence.

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