Police Discretion

by

Benjamin Brown

• LAST MODIFIED: 26 July 2022
• DOI: 10.1093/obo/9780195396607-0325

Introduction

Police discretion has long been, and remains, a controversial matter. Contrary to the notions that the law is to be uniformly enforced in all places and at all times, and that all persons are to be treated equally under the law, the fact of the matter is that law enforcement is, by its very nature, a discretionary practice. Due to factors such as the nebulous nature of the law, the magnitude of crime, the limited resources available to law enforcement (and other criminal justice) agencies, public perceptions of and support for the police, constitutional restrictions on government power, and the fact that much of the work of the police consists of handling noncriminal matters, police officers must exercise considerable discretion in serving the public. To date, most research on police discretion has assessed the discretion exercised by patrol officers via analyses of police decisions on three types of actions: arrests, use of force, and traffic stops and the consequences thereof (e.g., vehicular search, citation issuance, arrest). The good news is that one of the most consistent findings in the empirical literature is that police decisions to conduct stops, conduct searches, issue citations, make arrests, and use physical force are significantly influenced by legal factors such as offense seriousness, the presence of evidence of criminal activity, and resistance from a suspect. The not so good news is that another consistent finding in the literature is that the discretionary actions of the police can be influenced by extralegal factors such as the neighborhood where the actions occur and the age, demeanor, gender, and race/ethnicity of a suspect. This bibliography provides summaries of numerous studies of police discretion. For organizational purposes, summaries of a few classic and contemporary works of general interest are provided first, followed by summaries of several studies of police practices and policies designed to shape the exercise of discretion. Next, studies of arrest, of traffic enforcement, and of police use of force are discussed. Because many studies have indicated that police discretionary actions can be influenced by the race/ethnicity of a suspect and because relations between the police and people of color have been strained for so long, this bibliography also contains a section dedicated to studies of racial/ethnic profiling and police interaction with people of color. Finally, because of the increased attention afforded to domestic violence over the past few decades, because the police have frequently been criticized for their responses to incidents of domestic violence, and because numerous new laws and policies pertinent to the police handling of domestic disturbances have been implemented (in the United States and abroad), an additional section is provided that contains summaries of several studies of police handling of domestic disturbances.

Classic and Contemporary Studies of General Interest

Throughout the first half of the twentieth century, the discretion of criminal justice officials received little public scrutiny. The police, sheriffs, prosecutors, judges, and corrections officials enjoyed extraordinary leeway in determining when, where, and how to enforce the law. As Walker 1993 noted, it was not until the mid-twentieth century that the exercise of discretion by criminal justice officials was openly acknowledged and became an issue of concern. During the 1960s, Bittner 1967, Goldstein 1960, and Remington 1965 showed the law is not uniformly enforced and underscored the enormous discretionary authority afforded to the police. Also worth mention, Wilson 1968 documented substantial disparities in the enforcement of the law between police departments in different cities and the manner in which law enforcement was shaped by politicians and police administrators. Additionally, it was during the 1960s that crime rates escalated and the public became increasingly concerned about the problem. Crime became such a political hot button that President Lyndon B. Johnson established the President’s Commission on Law Enforcement and the Administration of Justice to investigate crime and the American criminal justice system. In its 1967 report, The Challenge of Crime in a Free Society, the President’s Commission emphasized the central role that human discretion plays throughout the criminal justice system and noted that the decisions routinely made by the police—decisions such as whether to break up a street corner gathering, intervene in a domestic dispute, stop a motorist, search a pedestrian, or make an arrest—“are the heart of police work” (p. 103). Since that time, interest in police decisions and the factors that influence such decisions have continued to receive considerable attention from the public, policymakers, and researchers. For instance, Brown 1981, Goldstein 1977, Mastrofski 2004, Worden 1989, and Johnson and Olschansky 2010 showed that the police must be afforded broad discretionary leeway owing to the limited resources available to the police and the myriad situations they are called upon to handle, but as a result police officers frequently engage in discriminatory practices. Additionally, researchers with the US Department of Justice collect and analyze data on police discretion and interaction between the police and the citizenry; see, for example, Davis, et al. 2018.

• Bittner, Egon. 1967. The police on skid row: A study of peace keeping. American Sociological Review 32.5: 699–715.

  DOI: 10.2307/2092019

  Analyzes observational and interview data gathered via a year-long study of the police in two unidentified police departments, and shows that police officers in dilapidated neighborhoods exercise considerable discretion and that arrests are rarely (if ever) made simply because the law has been violated. Bittner demonstrates how police officers use the law as a tool to help keep the peace, with arrests being made for multiple reasons, such as to prevent a situation from becoming volatile, to satisfy bystanders’ expectations that an arrest be made, or because a person potentially posed a danger to himself or herself.

• Brown, Michael K. 1981. Working the street: Police discretion and the dilemmas of reform. New York: Russell Sage Foundation.

  Analyzes observational data, survey data, and official data gathered in three cities in Southern California and indicates that police decisions are influenced by resource availability and the bureaucratic characteristics of police departments. Also suggests that the police rely upon stereotyping when deciding whom to stop, search, and arrest, considering factors such as cleanliness and clothing, race/ethnicity, the condition of a vehicle, and potential incongruities in a situation (e.g., a poorly dressed young male driving an expensive new vehicle).

• Davis, Elizabeth, Anthony Whyde, and Lynn Langton. 2018. Contacts between police and the public, 2015. NCJ 2511405. Washington, DC: Bureau of Justice Statistics.

  This report is part of an ongoing series of federal studies of contact between police officers and the public. Via analyses of data from the Police-Public Contact Survey, the authors show the extraordinary breadth of contact between the citizenry and the police, estimating that roughly one out of every five persons age sixteen or older in the United States had some contact with the police in 2015. The report provides analyses of survey data pertinent to calls to the police as well as traffic stops, police use of force, and satisfaction with the police.

• Goldstein, Herman. 1977. Policing a free society. Cambridge, MA: Ballinger.

  Analyzes the role of the police in a democratic society. Goldstein shows that the police are more than a crime control agency and dedicate considerable resources to handling complicated noncriminal matters, inclusive of resolving disputes between individuals and groups, and facilitating the flow of people and traffic. The study emphasizes the importance of police discretion and the complex questions generated by allowing the police broad discretionary authority (e.g., how to control abuse of power, how the general public shapes police actions).

• Goldstein, Joseph. 1960. Police discretion not to invoke the criminal process: Low-visibility decisions in the administration of justice. Yale Law Journal 69.4: 543–594.

  DOI: 10.2307/794445

  Analyzes observational data gathered as part of the American Bar Foundation’s pilot study of the American criminal justice system. The study indicates that full enforcement of the law is impossible, that discretion is essential to police work, and that there is a need for appraisal and review of police activities. The study suggests that appraisal and review of police decisions could facilitate the fair administration of justice, inform policymakers of the impact of and need for effective laws, and of the need to eliminate obsolete laws.

• Johnson, Richard R., and Erica L. Olschansky. 2010. The ecological theory of police response: A state police agency test. Criminal Justice Studies 23.2: 119–131.

  DOI: 10.1080/1478601X.2010.485465

  Analyzes data from the Pennsylvania State Police, the US Census Bureau, and the Uniform Crime Reports to ascertain what variables may impact “police vigor” (a composite of several variables, such as the number of traffic stops per trooper, average number of arrests per trooper, etc.). The study indicates that state troopers in areas with high crime rates made more arrests, but fewer traffic stops than state troopers in areas with low rates of crime, suggesting that officers who are busy handling crime have less time for matters such as traffic stops.

• Mastrofski, Stephen D. 2004. Controlling street-level police discretion. Annals of the American Academy of Political and Social Science 593:100–118.

  DOI: 10.1177/0002716203262584

  Summarizes and critiques research on police discretion, with special attention afforded to methodological, theoretical, and policy issues. The study indicates that scholars have neglected to consider how civil rights organizations, federal investigators, and police unions struggle to influence the dialogue and debate over matters of police discretion such as allegations of racial/ethnic profiling by the police. It also suggests that much of the research on police discretion suffers from weak measurement and validity issues.

• President’s Commission on Law Enforcement and the Administration of Justice. 1967. The challenge of crime in a free society. Washington, DC: US Government Printing Office.

  The Challenge of Crime in a Free Society is the summary report of the President’s Commission on Law Enforcement and the Administration of Justice’s eighteen-month study of crime and the nation’s justice system. In addition to describing the problem of crime (inclusive of sections devoted specifically to juvenile delinquency, organized crime, drug use, and “drunkenness”), the report provides the Commission’s findings and suggestions for reforms for each major component of the criminal justice system: the police, the courts, and corrections.

• Remington, Frank J. 1965. The role of police in a democratic society. Journal of Criminal Law and Criminology 56.3: 361–365.

  This is a brief but important work on the police and police discretion. Remington—who, among other things, served on the US Supreme Court’s Advisory Committee on Criminal Rules, was a consultant to the President’s Commission on Law Enforcement and the Administration of Justice, and a professor of law at the University of Wisconsin—was one of the first notable scholars to study police discretion. Remington’s research indicates that police discretion is necessary because of the ambiguity and scope of the law and the limited resources of the police.

• Walker, Samuel. 1993. Taming the system: The control of discretion in criminal justice, 1950–1990. Oxford: Oxford Univ. Press.

  DOI: 10.1093/acprof:oso/9780195078206.001.0001

  Argues that the public acknowledgment that criminal justice officials exercise discretion altered the study of the criminal justice system. Walker describes the evolution of the criminal justice system and the role of discretion in the work done by the police and the courts. Additionally, he addresses how the law and criminal justice system may affect behavior, and the manner in which public opinion and political shifts impact the law, the criminal justice system, and the exercise of discretion.

• Wilson, James Q. 1968. Varieties of police behavior: The management of law and order in eight communities. Cambridge, MA: Harvard Univ. Press.

  DOI: 10.4159/9780674045200

  Analyzes data from observations, interviews, and official records gathered from eight police departments located in three states, as well as data from the International City Management Association and the Uniform Crime Reports. Wilson draws a distinction between law enforcement and order maintenance, and suggests the primary responsibility of the police is maintaining order. The study indicates that police officers have considerable leeway to determine where, when, and how they maintain order, and that their decisions are shaped by the demands of the area, available resources, and the operational style of the department.

• Worden, Robert E. 1989. Situational and attitudinal explanations of police behavior: A theoretical reappraisal and empirical assessment. Law & Society Review 23.4: 667–711.

  DOI: 10.2307/3053852

  Analyzes observational and survey data collected in cooperation with police departments in the metropolitan areas of Rochester, New York; Tampa-St. Petersburg, Florida; and St. Louis, Missouri; as part of the Police Services Study. The study examines police actions in different situations, ranking the actions according to their severity, and finding that attitudinal and situational variables had little impact on police behavior and that “protocol analysis” may be more useful for understanding police behavior than conventional research methodologies.