Discretionary Situations for a Police Chief
Discretion in the Police Department
Discretionary Situations in Criminal Arrests: “Stop” and “Frisk,” Racial Profiling
The expectation is that public administrators apply a balancing act in the decision making process. Focus for this study is on law enforcement administrators, especially police chiefs, on their responses to their officers’ discretion to criminal arrests. The argument put forth is that police discretion is limited by managerial and information technology monitoring methods, which direct police officers to adhere to set up procedures (Chan, 2003; Rowe, 2007). Given that police officers usually have the opportunity to make a decision on whether to apply laws. This concept paper finds that there is a close relationship between management decisions and use of discretion. It is on this basis the research will focus on the police chief’s management decisions and the use of discretion in two major scenarios.
A police department has a wide policymaking discretion to permit some offenders to continue committing or arrest some offenders in a criminal misconduct. The manner in which the police department will exercise this discretion can create distributive harmful consequences to the judicial or the public system (Nirej, 2011). Police officers make decisions on whom to stop, search and arrest, with the constitution criminal procedure making an attempt to regulate how police make decisions. This, therefore, leads to the criminal justice perspective that arrests made based on probable cause are legitimate (Whren v. United States, 1996). According to Nirej (2011) police officers make this decision based on their police department procedure, as their administrators- police chiefs -, often tend to target some offenders and allows others to engage in criminal behavior (1172). This leads to the first situation where, departmental discretion leads to proactive police arrests based on identified criminal misconduct of certain ethnic, social economic and geographic groups.
This circumstance has led to a situation where police narcotics enforcement activities have increased America’s prison populations with poor men from African-American and Latin ethnicities (Lamberth, 2006). In that, in any given city, the pool of probably narcotic offenders will largely be arrested from the target population of the police departments. In the process, this discretionary practice of police officers has led to a creation of two distinct classes of narcotic offenders; (1) an elite, class of Liberal Arts College and urban periphery narcotic offenders, which is different from (2) working class color neighborhood narcotic offenders from the urban core (Nirej, 2011). Therefore, in such a situation the police departmental practice will influence an individual police officer’s decision to arrest a suspected narcotic offender based on their race, ethnicity, geographic or socio-economic situation.
The controlling protocol surrounding police discretion in above entails the Fourth Amendment regulations. The Fourth Amendment requires that individual police officers distinguish between the prospective guilty and innocent, by writing race out of the jurisprudence ( Lamberth, 2006; Miller, 2006). On this jurisprudence, an officer has “probable cause” and “reasonable suspicion due to articulable facts” that there was an occurrence of a crime before they can legally arrest, search and detain the individual and their property, as argued in Terry v. Ohio, 1968 (Nirej, 2011). Since this controlling protocol is used in defense of a suspect in a court of law, the role of the police chief, therefore, is to ensure that his officers find probable and reasonable cause in any arrest.
Based on the Fourth Amendment protocol, a police officer has probable cause to think that a certain individual is in the possession of narcotics, however minor, and therefore can detain and search the suspect (Terry v. Ohio, 1968; Atwater v. City of Lago Vista, 2001). Police chiefs often use this protocol not to retain their officers and the use of authority where there is a suspicion of narcotic crimes, especially in ethnic neighborhoods that have a history or prior record of the offence. The reason given by police chiefs for their officers’ discretion in the search and detention of suspected narcotic offenders from certain racial neighborhoods is that, a court often is clear that it does not use the Fourth Amendment to prevent the exercise of police authority where there is a basis for criminal code (Atwater v. City of Lago Vista, 2001). The repercussion of this statute consequently is that, police chiefs and their departments have considerable discretion in the selection of the many types of offenders (Nirej, 2011). This creates discretionary alternatives in criminal arrests for police officers when the Fourth Amendment is applied, as seen in the given case.
Police officers have discretionary powers to arrest a narcotic offender based on race, despite the violation of the Fourth Amendment. This was seen in United States v. Whren, where a court ruled that a police officer has subjective motivation to detain a suspected individual irrelevant of the violation of the Fourth Amendment (Illinois v. Lidster, 2004). In this case, the court found that the arresting undercover officers had probable cause to suppose that Whren had minor traffic violations. However, the real reason for Whren’s arrests was that the officers had already pulled him over due to his African-American status and had narcotics in his car (Illinois v. Lidster, 2004). However, the regulations of their police department prohibited the enforcement of minor traffic violations by undercover narcotic police officers (Nirej, 2011). The argument made by the Whren’s defense was that if the officers did not have this stereotypic assumption that black motorists had narcotics, they then would not have pulled him over. The court rejected the defense’s motion, that the arrest was a violation of the Fourth Amendment, inclining that police officers had the discretion to arrest with probable cause even when the Fourth Amendment on racial profiling was violated.
Apart from the exercise of the discretionary alternatives to the Fourth Amendment, police chiefs offer different justifications for the appropriateness or inappropriateness of the use of discretion in criminal arrests. This is seen where, proactive police arrests are made based on discretion decisions of the police department policy makers and administrators especially the police chief. This because the discretion to make an arrest of an individual police officer is determined by how, police officers are distributed across the jurisdiction and by extension the offender’s demographic profile, by the police chief (Simon, 2007). According to Nirej (2011) proactive policing especially narcotics enforcement is determined by the discretion of the department. This discretion by the police chief deploys police officers to certain demographic profiles based on enforcement priorities and enforcement tactics (Simon, 2007). Therefore, the reasons given for racial profiling in narcotic arrests by police officers are that these arrests occur due to a precinct’s experience narcotic cases in a particular area and criminal rates. The police chief has the ultimate discretion to allocate more police officers and undercover narcotic officers to particular demographic regions due to enforcement strategies required to combat high level of narcotic crimes exhibited in such areas (Simon, 2007). The prevalence of crime like narcotic offences in particular demographic groups has been an excuse by police officers to exercise their discretion to make arrests, making difficult for the legal system to prove racial intent. Such departmental decisions determine the type of crime officers to focus on in any location. Police officers for this reason will make a decision to arrests on certain crimes like narcotics that are persistent in a particular community, overlooking misconduct viewed as minor like over speeding in an (Simon, 2007). The other reason is that departments are not compelled by politics or law to be transparent on who they decide to exercise discretion, especially where the policing policy program is to eliminate disorderly behavior and to improve the quality of life (Nirej, 2011). The argument for discretion in criminal arrests is that arrests are the key means by which modern police departments can control the arsenal of crime.
However, there is proof that the use of discretion in narcotic arrests influenced by race is inappropriate. The reason for this is justified by limiting the application of the Fourth and Fourteenth Amendment by focusing inquiry on the moment the police officers and citizens come into contact, to adverse the equal protection claims (Harcourt, 2007). The argument is that police break racial clause in the Fourth Amendment by unfairly using their discretion to search minority motorists for narcotics in the name of probable cause, since race is a negative proxy for guilt (Harcourt, 2007). This argument led to the “Driving While Black” campaign, which created awareness among public administrators in the police department that racial profiling was wrong. The legal justification for the inappropriateness of racial profiling in criminal arrest discretion was that it was wrong if there was abundant proof that the police enforced criminal law against a person because they were from a racial protected class (Harcourt, 2007). The discretion practice is also inappropriate if there is proof that the police enforced selective or discriminate arrest actions against a racial group over another. This is based on the “Disparate impact” where police arrest offenders from a minority group while allowing similar situated offenders from a protected group to get away with a crime. The discretion of the police to make arrests is often challenged by individuals who offer proof that the police purposely targeted a minority due to their race.
The second situation discretionary situation is the police “Stop” and “Frisk” policy. The appropriateness and inappropriateness of this discretion policy was recently seen in the 2011 review of the New York Police Department practice of over 684,000 stops. According to the Police Commissioner Kelly Raymond who defended the policy, said that the practice had reduced crime and reduce the number of drugs and guns on the streets. Unfortunately, the legal director of the New York Civil Liberties Union, Dunn Christopher, found the policy needed to be reformed and curbed, as it accounted for minorities making over 90% of the stops. However, it has been reported by criminologists that the “Stop” and “Frisk” police tactic has increased intrusive police action, consequently building community tension and civil right lawsuits (Maykuth, 2008). This is situation has created a serious problem for the police administration on the application of the policy while maintaining civil rights.
The discretion warranting police officers to carry out “Stop” and “Frisk” actions is regulated by the Supreme Court’s Fourth Amendment jurisprudence which mandates that warrants are required for all searches (Schinner, 2009). This mandate also applied to cases where there was conclusive evidence of the presence of illegal activities. However, the Supreme Court recognized that the strict mandate could be waivered in some cases, under police discretion. Despite this waiver, the Supreme Court did not completely abandon the requirement for warrants, as indicated in the Terry v. Ohio court ruling.
There are alternative control regulations used by the Commissioner of Police and Police Chiefs to emphasize the “Stop” and “Frisk” discretion policy among officers. The NYPD has a mantra that all police departments are there by their chiefs of police are to emphasize that searches are to be conducted according to laws and regulations (Maykuth, 2008). In addition, police officers are directed to thoroughly document the grounds used to a “Stop,” so that if any evidence is confiscated in the Frisk process is admissible in the court (Maykuth, 2008). These administrative directives and documentations are used by Chiefs of Police to protect police officers in cases where their conduct comes under legal challenge. These protective regulations give alternative mean for police officers to carry out legal searches even in instances where they do not have warrants, as long there is a good reason for reasonable doubt.
The reason why it is legal of a police officer to carry out a “Stop” and “Frisk,” even in a case where racial profiling is suspect is due to the Terry v. Ohio ruling. In the case, the court ruled that a police officer can frisk a suspect, if they have a strong basis for “reasonable suspicion” that the suspect is up to criminal activities (Maykuth, 2008). The reason given by police administration for the use of the “Stop” and “Frisk” policy, is that a frisk, is not as thorough as a full search, which is only carried out under the law when an officer has probable cause as supported by the Fourth Amendment. According to Schinner (2009) though courts do not need probable cause for a street stop and search, the three levels of citizen-police encounters- voluntary meeting, arrest, and Terry stop-, require distinct suspicion to validate the officers discretion. Following Terry, the first level of encounter is taken as a consensual encounter, which does not entail any coercion or pressure to stop or search, therefore, the Fourth Amendment will not apply (Schinner, 2009). The Terry stop and frisk is the second level, which a short intrusion on the freedom of movement of an individual, in which the police discretion must be supported by reasonable suspicion. Lastly, is the arrest level, which involves a high level of disruption, and requires strong probable cause for the officer to defend his discretion to stop, search and arrest.
The reasons given by police administrators for the need for greater discretion in “Stop” and “Frisk” instances is that they will retort to a greater number of suspicious situation and exercise their judgment when making decisions on which situations need investigation (Schinner, 2009). However, the creation of minimal suspicion standards by police chiefs will cause greater discretion for officers, which increases the risk of intrusion on the privacy of citizens who are innocent. This regulation would be inappropriate since it would create problems in any search and seizure situation, no matter how minor. The other problem that arises from this policy is a breach of abuse of discretion by officers, like the unfair burden on Africa Americans and other minority communities due to the standard. Consequentially, a low suspicion standard for “Stop” and “Frisk” would be appropriate for police departments that have jurisdiction over urban areas like inner cities, where there is a high population of blacks (Frase, 2005). The argument made in defense of a greater discretion for officers from departments that have jurisdiction over such areas is that, such these sections of the city have the highest recorded rates of crime. Therefore, it is only appropriate for the police chief to allocate a high number of police officers, give them minimal suspicion standards for “Stop” and “Frisk” in areas with higher minority populations, to have greater discretion to curb crime rates (Frase, 2005). The minimal suspicion standard for “Stop” and “Frisk” would thereby be inappropriate as it would increase the likelihood of racial discrimination practices by officers
The minimal suspicion standard for “Stop” and “Frisk” would increase civil right issues against officers who violate the law especially where there is doubt on the foundation of their establishment of probable cause. This makes it more difficult for officers to determine the probable cause for minor infractions- like loitering, standing by a car outside a business premise or holding an open alcohol container- as a basis for stop and legal frisk of suspect (Maykuth, 2008). However, police administration feel that many officers have the ability to make an informed judgment on whether to search and arrest people stopped with minor infractions. This is because as stipulated by the NYPD “Stop” and “Frisk” policy, a police officer can stop and frisk individuals if there is reasonable suspicion founded on “specific and articulated facts” rather than hunches (Maykuth, 2008). The police department feels that officers have the discretion to stop and frisk an individual with probable cause supported by factors like known criminal record, evasive behavior, being in a high crime area, flight, police bulletin information and fugitive gestures (Maykuth, 2008). The level of “Frisk” is also left to the discretion of the officer, but limited by the presence of items that may cause harm to the officer. The justification offered for minimal suspicion for greater discretion for officers in “Stop” and “Frisk” situations is the need for the protection of officers and citizens within the immediate vicinity, under the reasonable suspicion standard. The effectiveness of the police will be due to the greater discretion officer will have while intervening in many circumstances. The argument made by police chiefs is that if police officers are given greater ability to investigate, a greater number of crimes would be prevented (Schinner, 2009). This they reason would be particularly useful for crimes like burglaries and drug sales.
The other argument made for the use of minimal suspicion and a is the creation of better level of consistency in the analysis of the Fourth Amendment. The use of minimal suspicion and flexible citizen-police encounter would imply better reasonable cause ad use of warrant in many of the stop and frisk circumstances, especially given the increase in crime and the involvement of government and politics in administrative searches (Schinner, 2009). This would lead to better reasonableness in the intrusion of an individual’s privacy and the interest of the police department in intruding ad determination of the cause of the intrusion. The need for balance is believed to be a way to reduce racial and civil right complaints on police officers due to their actions during a “Stop” and “Frisk” situation.
There is a need for police chiefs to give their officers the power of discretion especially given crime rates, the lack of consensus on the determination of minimal suspicion, reasonable doubt and probable cause by the law. Similarly, in the two discretionary situations given for criminal arrest, the need for police discretion ascends from factual details that it is only the individual officer in direct contact with an arrest situation and a suspect can make the best judgment on the level of risk involved. While the law may seek to create regulations to protect the civil rights of suspects, and those of police officers, it is the police officer who has the power of discretion to determine how serious a crime is. Their discretion is, therefore, the result of legal, political policies and decisions created for their department and put into practice by their police chiefs.
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Frase, R.S. (2005). Sentencing Guidelines in Minnesota, 1978-2003. In Tonry, M. Crime and Justice: A Review of Research, 32, p131, p201.
Harcourt, B.E. (2007). Against Prediction: Profiling, Policing, and Punishing in an Actuarial Age. 1st ed. University of Chicago Press, 119.
Illinois v. Lidster, 540 U.S. 419, 424-25 (2004). In Nirej, S.S. (2011). Redistributive Policing. The Journal of Criminal Law & Criminology, 101(4), 1171-1226.
Lamberth, J.C. (2006). Data Collection and Benchmarking of the Bias Policing Project: Final Report for the Metropolitan Police Department in the District of Columbia. Lamberth Consulting, 57.
Maykuth, A. (2008). City Police get Stop — and- Frisk Lessons. , Apr 14, 2008.
Miller, E.J. (2006). Role-Based Policing: Restraining Police Conduct “Outside the Legitimate Investigative sphere.” 94 Calif. L. Rev. 617, 665.
Nirej, S.S. (2011). Redistributive Policing. The Journal of Criminal Law & Criminology, 101(4), 1171-1226.
Rowe, M. (2007). Rendering Visible the Invisible: Police Discretion, Professionalism and Decision Making. Policing and Society, 17(3), 279-294.
Schinner, G.L. (2009). The Elephant in the Seventh Circuit: A Modified Approach to the Minimal Suspicion Standard. Washington and Lee Law Review, 66(2), 857-893.
Simon, J. (2007). Governing through Crime: How War on Crime Transformed American Democracy and Created a Culture of Fear (studies in Crime and Public Policy). Oxford University Press, U.S.A. 75-110.
Terry v. Ohio, 392 U.S. 1, 21 (1968). In Nirej, S.S. (2011). Redistributive Policing. The Journal of Criminal Law & Criminology, 101(4), 1171-1226.
Whren v. United States, 517 U.S. 806, 813 (1996). In Nirej, S.S. (2011). Redistributive Policing. The Journal of Criminal Law & Criminology, 101(4), 1171-1226.