Police Discretion

Police officers exercise a tremendous amount of discretion in carrying out their functions. That is, they make many choices from a range of possible actions or inactions available to them that are not specifically prescribed by law. This simple notion, that seems self-evident to some and controversial to others, lies at the heart of many issues of policing in democratic societies.

That police do exercise discretion was only openly acknowledged beginning in the 1960s. The conventional views prior to that time, and persisting among some long thereafter, was that the police function was entirely a ministerial one, that police took only those actions specifically authorized or mandated by legislative bodies. Under this view, policing was understood to be simply a matter of enforcing the laws on the books. But a number of research studies of policing in action found that the law was silent on many important matters involving police action, and ambiguous on others; also, police officers did not always adhere to what the law prescribed, even where the law was clear and specific.

The exercise of discretion is nearly inevitable in policing. Some laws are practically unenforceable—some are outdated and widely unpopular, some are unconstitutional, and some lack enforceable sanctions. Legislatures pass laws, and fail to abolish others, for a variety of purposes, only one of which is to establish clear expectations and guidelines for police action. Moreover, police seek to achieve various objectives in carrying out their duties, and, at times, those objectives conflict with one another. In such instances, police must decide which objectives take precedence over others. For example, during a public demonstration held in the streets, police may find that the objective of keeping traffic avenues clear conflicts with the objective of safeguarding citizens’ rights to peaceful protest.

Even absent conflicting objectives, police and other criminal justice resources are far too limited to allow police to enforce all laws aggressively. Most communities would not tolerate full enforcement of the law, even if resources would allow it, preferring a degree of police tolerance, especially for minor legal transgressions. The very capacity of the criminal justice system to continue functioning in many communities depends to a great extent on the police not fully enforcing the law. Sudden increases in police arrest activity can seriously challenge the capacity of the system to process the resultant cases.

Discretion is exercised in policing at all levels of the police hierarchy. In contrast with other occupations and professions, the greatest amount of discretion in policing is exercised at the line level [Page 338]by patrol officers and detectives, but supervisors and policymakers also exercise large amounts of discretion.