Police Discretion: When should the law be enforced

6 June 2016

Every single member of the police establishment is tasked to uphold and enforce the law (National Criminal Justice Reference Service). A large number of these people can be generally regarded as ethical and moral individuals (Austin Peay State University). But sadly, all of them are also burdened with the dipping confidence given them by the public and even lower trust ratings (Austin). Is this the result for the low regard for the ethics as practised by the police?

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Police officers and officials are expected by the public to conduct themselves in the highest levels of behavior (Tag Gleason, 2006). This task wrests on the concept that the police are the guardians of the law, empowered to apply such force as necessary to enforce the laws and withdraw the rights of individuals in conflict with the law as can be legally proven (Gleason, 2006). Along with the task of enforcing and upholding the law, there are powers given to the police that no one else can encumber themselves with in the performance of their duties. Among these powers that the public has entrusted in the police is the power to take the life of a person if need be and to apprehend erring individuals (Seumas Miller, John Blackler, and Andrew Alexandra, 2006).

Police Discretion: A definition

Before we discuss what police discretion is, let us seek to define the term discretion and the scope that the term encompasses. The term “discretion” can be defined as the authority to make policy and practice decisions (The World & I, 2004). These powers, broad and all- encompassing as they may seem, must be seen as discretionary in a way (Miller, Blackler & Alexandra, 2006). The qualification of the instance of the use of discretion on the part of the law enforcer must take into consideration several factors, inclusive of the type of offense committed and the possibility that the suspect will not hold himself accountable if summoned by the police (Miller, Blackler & Alexandra, 2006).

The instance for the need for police discretion by members of the law enforcement establishment displays the station of the police officer as a professional (John Kleinig, 1996). But in the area of police work, there is still a great amount of befuddlement about the need for the police to exercise this power of discretion and the need to restrain this power (Kleinig, 1996). This area of discretion, lest we forget to mention, also carries with it a choice of what laws are to be enforced and the method of application of these laws (World, 2004). Thus it can be said that the power of the police to exercise discretions will have a profound effect on the individuals that they come across with (World, 2004).

The necessity of the policy of police discretion must be framed in that the full application of the laws and the large area of the coverage of the laws will create an unreasonable burden on the manpower capabilities of the police establishment (National). But even if these powers were to be exercised, they would still have to be subject to limitations and qualifications (Kleinig, 1996). Discretion must be considered as an important component of the duties of a public servant (Billy Thompson, 1999). The manner by which that discretion must be researched for a period of time as to manner-whether the orientation is a “service”, “watchman”, or a “ legalistic”, or to the personality of the officer; an idealist, optimist , realist or enforcer type (Austin).

Police Discretion: Shirking off responsibilities?

But it must be accepted that a full and unequivocal enforcement of all statutes is considered to be impossible (Austin). The premise for the exercise of such power is that one individual has to be set free, in spite of the offense (Austin). There are sometimes factors, legal or “extralegal”, that determine whether the individual will be set free (Austin). Among the legal basis use in determining whether the person will be set free are the reasons that the person gives for committing the offense, the place and danger posed by the person when the offense was committed, and the severity of the crime in relation to the imposed law or standard (Austin).

But, albeit considered illegal or extralegal, there are motivations that do seem unethical when these are given as the reasons that police use to consider the release of the person that violated the law. Among them is sexual interest or disinterest in the violator, the ethnic origin of the violator, and the person or identity of the truant (Austin). Aside from these factors, the determination of the ethical basis for the release of the offender is more convoluted (Austin). If we take into consideration the mindset that is prevalent in the police establishment, the possible reason that is considered by the officer in the exercise of that discretion is the respect that the person accords the person in uniform (Austin).

Again, the idea that the practice of police discretion is unambiguous, even if the root from which the concept is taken is not (Kleinig, 1996). The term in the English language ‘discretion” finds its roots in the Latin word discretio, which evokes a degree of separation or discernment (Kleinig, 1996). Therefore in this context the person who exercises discretion can be held as one possessing of sound and wise judgement in practical and interpersonal situations (Kleinig, 1996). If the police grapples with a difficult situation and brings about a satisfactory resolution, then the officer is said to have exercised good discretion (Kleinig, 1996).

Just Enforcing the Law?

But is the role of police just limited or set in the ambit of enforcing the law? Not so, argue some (Miller, Blackler & Alexandra, 2006). Other responsibilities of the law enforcement establishment are the maintenance of the order in the society and to help in the protection of life (Miller, Blackler & Alexandra, 2006). In the discussion earlier, the police must be given discretionary alternatives for them to be able to deal with situations especially when two interests collide (Miller, Blackler & Alexandra, 2006).

The state is tasked with the responsibility and duty to enact laws and make them known to the citizenry (Guillermina Seri). But the argument here is that the state must make the people aware of the punishment attached to the violation of the known laws of the state, and the other violent means of vengeance if the “unwritten” laws are broken (Seri). Once a police officer orders us to stop for a check, that officer is possessing absolute power when they are in the position of asking us to submit to them (Seri). The tendency of these instances when people come into contact law enforcers often leave the person exposed to the mercurial lines of the police and makes the boundary between the established, written laws and the unwritten statutes blurred (Seri).

Police Discretion: Is it needed?

As stated earlier, the police cannot be asked to enforce all the statutes and laws that have been enacted for the people’s protection and exercise of their rights (Austin). But in this context, can we accuse the police establishment of shirking off its duty to enforce the law since they can just apply their discretionary prerogatives in deciding who gets free and who gets hit by the book? Duty is the accountability that one’s responsibilities will be discharged commensurate to the position; discretion is when that person can choose between options in the performance of that duty (Austin). If the performance of that duty of the police is tainted with other factors, that is when discrimination sets in the decision making of the police (Austin).

Some opponents of the practice of police discretion aver that the police must enforce and decide the culpability of the suspects strictly by the dictates of the law (Milan Pagon, 2003). Thus, if the practice is solely dictated by the ambit of the law, then the practicality of police discretion would cease (Pagon, 2003). But the concept is hardly of any use once applied to a field setting (Pagon, 2003). The balance must be struck wherein the force of the law is applied and the eventuality that the person is subjected to cruel treatment (Pagon, 2003).


Austin Peay State University. (n.d.). Topics in police ethics. Retrieved November 7, 2008,           from http://www.apsu.edu/oconnort/3300/3300lect04.htm

Gleason, T. (2006, November). Ethics training for police. The Police Chief  Volume 73,   number 11

Kleinig, J. (1996). The Ethics of Policing.  Cambridge, Engalnd: Cambridge University Press

Miller, S., Blackler, J. & Alexandra, A. (2006). Police Ethics. Australia: Allen & Unwin 2006.

National Criminal Justice Reference Service. (n.d.). NCJRS abstract. Retrieved November 7.

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