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Discretion definition and examples
In a loose sense, discretion can be defined as a freedom of choice. Thus, Dempsey and Forst (2015) describe this notion as “the availability of a choice of options or actions one can take in a situation” (p. 143). All the actors of the justice system, including judges, prosecutors, and parole boards, exercise discretion, to a larger or smaller extent, while performing decision-making.
Hence, for instance, a judge’s choice between imprisonment and probation implies discretion. Likewise, the existence of two alternatives, such as reducing or dropping charges, in the prosecutors’ decision-making, is also the illustration of discretion exercising. Parole boards, in their turn, are enabled to exercise discretion when deciding whether defendants should serve the assigned sentence completely or they be potentially paroled from prison. The described examples of evidence that discretion is exercised at all levels of the justice system.
Meanwhile, Dempsey and Forst (2015) assume that discretion is particularly vital in the context of the police officers’ activity. The authors make a reservation that the active exercising of discretion within the police environment does not always result in positive outcomes. Thus, they refer to the example of Seattle police officers’ applying excessive physical force to impaired people.
Rationale for exercising discretion
Despite the ambiguous character of the discretion outcomes, there is a series of reasons that explain the need for its exercising. In the policy context, for instance, discretion is essential to preserve the balance between law enforcement and order maintenance. Thus, police officers can manage priorities and identify which violations need to be curtailed most urgently. Otherwise stated, discretion allows for distinguishing between minor and major abuses and pointing out the cases that require law enforcement.
Unless police officers could use the discretion options, they would be obliged to redirect every violation to the courtroom for further consideration. As a result, courts would be overloaded with work. Another reason why discretion is particularly critical for police officers’ activity is the ambiguity of the modern laws. Hence, some of them are passed despite the poorly-defined content. The lack of clarity makes police officers take up the responsibility for the law interpretation and its enforcement. Individual judgment, in this case, becomes the main mechanism of the functioning of the criminal justice system (Dempsey & Forst, 2015). Therefore, it might be concluded that discretion is important as it allows for aligning legislation with its practical enforcement.
Since discretion implies the ability to choose between different alternatives, it is rational to suggest that some factors impact decision-making. Dempsey and Forst (2015) suggest considering several factors that are most likely to influence the discretion application. Thus, personal prejudices play an important role even though they do not imply high professional competence. Nevertheless, a large percentage of police officers base their decisions on such factors as race, gender, and manners of violators or victims.
Another factor that plays an important role in shaping the discretion character is the context of violation. Thus, police officers’ decision-making depends on whether they act relatively freely or under the persistent pressure of the society. Additionally, discretion can be impacted by the organizational structure of the relevant police department. In other words, police officers are sure to adjust their actions to the general framework that their chief sets.
The characteristics of a crime, or the gravity of the violation, are another impact factor that should be pointed out. Thus, according to Dempsey and Forst (2015), serious crimes impose restrictions on the discretion extent. It can be, therefore, assumed that the described factors might be, likewise, applied not only to the police context but the entire justice system.
Ways of control
The analysis of police discretion shows that this phenomenon implies individual attitude and vision of those who exercise it. As a result, some controlling tools seem to be essential to prevent discretion misuse within the justice system. Dempsey and Forst (2015) point out corporate policies as one of the key mechanisms targeted to limit discretion. These policies feature a set of norms and guidelines defining how police officers are supposed to act under certain conditions. Their key aim resides in ensuring unity in the police officer’s conduct and its compliance with the relevant legislation.
Another controlling method is the implementation of different performance monitoring techniques that allow supervisors and managers to track the cases of discretion misuse and eliminate improper employee behavior at the early stages. Meanwhile, Dempsey and Forst (2015) emphasize the fact that the described methods should be considered as supplementary. According to the authors, the major controlling mechanism is the establishment of a consistent value system that will ensure operational integrity and alliance to the corporate goals and objectives.
Kristen Ziman’s views on discretion
Dempsey and Forst’s (2015) assumption, that a consistent value system is the most effective regulator of police discretion, correlates with Kristen Ziman’s view on the problem. The latter believes that unless a police officer relies on the moral will in the decision-making, he or she will always apply discretion to choose the most convenient alternative. Thus, Ziman (2011) refers to the example of police officers’ responding to citizens’ complaints. The author believes that under these circumstances, employees often tend to perform the minimum of actions and maintain a high productivity level.
Discretion, in this case, serves to be a convenient tool to avoid additional effort and manage the largest number of calls possible. In the meantime, Ziman (2011) believes that this approach hurts the police officers’ performance – the neglected conflicts and violations emerge into serious crimes. Ziman’s vision of the problem seems to be reasoned and rational. It elucidates the negative outcomes that discretion implies unless it is properly managed.
This view on the problem is convincing as it provides some insights into the practical application of discretion in a real-life context. It, likewise, reveals the ambiguity of the discretion phenomenon: discretion is essential as it ensures a regular functioning of the justice system; in the meantime, it should be regulated by moral principles and values to imply positive outcomes.
Dempsey, J. S., & Forst, L. S. (2015). An introduction to policing [Bookshelf library version].
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Ziman, K. (2011). Practical wisdom.