“Police Discretion and the Decision to

Arrest”

Emily Petheram

Early Paper
 Police Discretion and the Decision to Arrest
Early Paper

“Authority conferred by law to act in certain conditions or situations in

accordance with an official’s or and official agency’s own considered judgment and

conscience. It is an idea of morals, belonging to the twilight zone between laws and

morals. It is the power to consider all circumstances and then determine whether any

legal action is to be taken” (LaFave, 63). This is one of many interpretations of

discretion. These interpretations differ and are dependent on many variables. Therefore,

it is important to establish discretion guidelines for police officers to follow. If these

guidelines are not followed there could be a chance of police misconduct, which is a

current issue in the police force. Particularly, this paper will focus on the role of police

discretion in regards to arresting an offender. The question is, should a suspect’s future

depend on extraneous variables and be arrested because the officer enforces too much

discretion? In return, this would create a case of police misconduct in respect to the

decision to arrest in the adjudication process of the criminal legal system.

The adjudication process in the criminal legal system is the procedure by which

the government participates in to arrest an individual all the way to the judgment decree

(McConville, 28). This process has five main stages; decision to arrest, decision to

prosecute, bail outcomes, plea bargaining, and sentencing. Specifically, this paper will

focus on the decision to arrest and how police officers can enforce excessive discretion

which could influence their decision to take a suspect into custody. This excessive

discretion could be influenced by many factors. For example, if the police officer is

racist, he or she may base their decision solely on the color of the offender’s skin; this
will be discussed later in the paper. Instances such as these could create officers to take

undeserving civilians into custody obviously, creating a major problem

After understanding what police discretion is, one can apply the main focus of this

paper, how discretion can be maltreated. It is important to understand that there are some

elements that may influence a police officer to make an irrational decision. To begin,

police discretion is not only a legal issue, but it is also a personal issue for the officer.

Simple personal issues such as, how their day has gone or how busy they are with other

felonies simultaneously may affect whether or not the officer arrests.

More specifically there are other possible personal variables that may drive an

officer to arrest a suspect that was undeserving. For example, the officer’s moral and

value system. One officer’s thoughts on drug usage could be completely different than

another officer’s. Therefore, the decision to arrest in a drug situation could be dependent

on personal thoughts. Another personal element could be the way that the officer was

raised in their prime. “The officer’s subculture provides officers with rationalizations”

(Lundman, 173). Basically, the officer’s background could influence their emphasis on

certain crimes. For example, being raised in a very conservative style family is

completely different than growing up in a liberal style family. Therefore, it is given that

the political background of the official affects the decision to arrest. “In communities

characterized by caste-like boundaries between economic and racial groups, elected

officials generally represent privatized or special interests” (Lundman, 165). A specific

instance could be that a conservative/republican officer may focus on finding the drug

users specifically to arrest and prosecute the offender. Though, a liberal/democratic

officer may focus on rehabilitating the offender and giving them another chance.
Therefore, the officer’s family background and childhood could put emphasis on certain

crimes. This in turn could force an officer to implement a higher level of discretion with

a higher chance of arrest in certain circumstances.

Another personal instance could be from the officer’s preconceived perception of

the suspect. For example, a racist police officer. Using ethnic backgrounds as a means

for arrest is nothing but immoral. Unfortunately, there have been many accounts of

officers arresting merely on the basis of skin color. This is not the only part of the

problem because when the suspect is mistreated by an officer it could create the suspect

to also act irrationally. Therefore, should an African American man suffer and be

arrested if he dealt with a racist, white cop? The moral answer is obvious, that he should

not be arrested unless completely necessary, but the measurement of necessity definitely

varies and is difficult to measure.

Personal factors are not the only factors that can taint an officer’s decision to

arrest. Another important influential issue could be the location of the crime. It is proven

that there are “hot spots” for police officers to arrest. It is possible that the officer may

not think of the case individually, but generalize by the basis of its location. Sociologist

Lawrence W. Sherman found many different reasons why a police officer may arrest

based solely on the location of the crime (Lundman, 164). Two of his most developed

thoughts are as follows. “The first is the amount of fluidity (or openness) of a

community’s economic and racial groups. Another developed theory comes from the

communities with caste-like boundaries and a privatized orientation among elected

officials” (Lundman, 164-165). Sherman also developed the idea that official’s political

background and beliefs can affect the amount of discretion used.

likely an officer will arrest. This is because there is a higher likelihood of crime based on

the social disorder from the racial and economic differences. Therefore, officers have a

moral duty to try to keep those types of communities in order, which can create the

officer to be tougher in this area.

The next type of community Sherman focused on was “caste-like boundaries

with a privatized orientation among elected officials”. Basically, this is an area that has a

high level of illegal services available. Some examples include areas of “pornographic

materials, gambling, prostitution, drugs” (Lundman, 165). These types of areas are

highly patrolled, where it is easy to catch a lawbreaker. Places such as these bring

attention on themselves, enabling the officer to find crime and arrest. This creates

another opportunity for the officer to enforce his or her desired discretion.

After understanding that officers have a high level of discretion, how they enforce

their authority is the next important issue. Since the officer has the ability to make

decisions, such as arresting, it is crucial that police misconduct is not exercised. Police

misconduct occurs when an officer uses his/her authority incorrectly to their advantage.

This could be excessive use of force, verbal abuse, all the way to police using their

authority to their own advantage.

Unfortunately, police brutality and misconduct is something that regularly

happens. “One could say that police are in some way authorized to be brutal” (Babovic).

Obviously, this is an unethical suspicion; the excuse for brutality (or misconduct) is

undefined and can not be acknowledged (Shekhar, 28). There are certain circumstances

where excessive force may be authorized, such as the suspect uses physical aggression
towards the officer or other civilians (Shekhar, 114). Therefore, if these circumstances

are not involved police misconduct may occur. Specifically, the main focus in this paper

is concentrated on the misconduct that occurs throughout the arresting process.

“Control over police practice should, insofar as possible, be positive, creating

inducements to perform properly rather than concentrating solely upon penalizing

improper police conduct” (Whisenhand, 119). Basically, there should be no outside

factors that could influence of officer’s decision when deciding to arrest, or even give a

simple citation. Though, as stated there are many factors that might taint an officer’s

decision. More specifically, another major problem is police corruption. “Police

corruption is present in watch-style department when patrol officers accept money,

goods, or services for actions they are sworn to do anyway. It is also present when patrol

officers accept money, goods or services for ignoring or tolerating actions they are sworn

to take formal legal action against” (Lundman, 172). This is where the police officer

misuses their authority to generate personal gain and this happen in various ways (Carter

& Stephens, 6). One of the many examples of tolerating actions that are unacceptable for

officers is drug usage. There are instances when police officers decide to arrest because

in return they could take and use the offender’s drugs. Obviously, this is unethical and

not a valid reason to arrest. Though, possession of drugs is grounds for arrest in itself,

the amount of discretion, force, from the officer could create unnecessary actions by the

offender.

Another indirect way a police officer may be influenced is by the choice of

policing he or she engages in. According to, Police Behavior, there are two types of

policing, legalistic-style and watch-style. The legalistic-style of policing is particularly

amongst society. These departments are controlled by chiefs that have highly dedicated

themselves to be as precise and fair as possible. Therefore, there are no circumstances

that can excuse someone that has broken a law. To keep things fair between all citizens,

no one should be given warnings and all offenses are to be justified by correct

prosecution of the law. “Patrol officers are expected to enforce the law wherever

possible” (Lundman, 166). In general, this mode of policing suggests that officers are not

allowed to give special treatment to offenders because everyone should be punished

equally. Each officer should enforce the same propensity of authority to everyone. This

mode of policing can dictate the rate of arrests from a police officer because it governs

their every move and promotes arrests.

The second mode of policing, according to Lundman, is watch-style. This is a

style that is governed by chiefs that are committed to keeping social order and cohesion.

This is done by promoting officers to enforce the law based on the caste characteristics of

that specific community. For example, if the neighborhood is higher class, the rate of

arrests will lower than in a blue-collar neighborhood. This type of policing may

influence an officer’s discretion because he or she is trying to abide by specific rules and

regulations governed by their chief in relation to where they find the offender. In turn,

they do not recognize the specific instances they should have used more or less force.

Now that it is understood how police officers may misuse their discretion based

on personal factors and other indirect factors, it is important to understand that an officer

must have the mental capacity to engage in proper discretion. Obviously, with the

notion that police officers have the ability to decide a person’s future momentarily, the
intellect of the police officer should be approved and tested. Officers have high levels of

authority, which gives the officer the need to have the skills to enhance and justify their

authority. Therefore, the debate on whether a police officer should be a college graduate

has been heavily fought for about 100 years (Boron). This is because some believe that

without a college education people do not have the brain capacity to make these

important decisions.

Initially, officers only had to have a high school diploma, but as the years

progressed and the role became more demanding authorities have changed the

requirements. The requirements vary, dependent on the district and type of government.

Local police departments tend to stay partial to the formative law and do not require a

four year college degree. Despite the past, the majority of police academies in the United

States require a minimum two year degree or a certain number of credits. (Boron)

It is proven that there are changes in the amount of force and discretion an officer

uses in relation to higher educational levels. It is believed that the higher the educational

level, the lower rate of authoritarianism the officer exercises (Boron). Therefore,

“authoritarian attitudes correspond with a lack of a college education and increased work

experience” (Boron). For example, college educated officers also tend to be more

accommodating than authoritarian. This could be for a number of reasons, but perhaps

the lack of college experiences and freedom affects the uneducated police officer.

Meaning, college graduates have the earned right to be an authoritative figure. Whereas,

the officer without a college degree has to prove they are worthy of the authority and they

do this by being a tougher officer.

enforcement. An officer needs the ability to make decisions quickly and ethically, and

with less education that could create a problem. Since this is the case, it is important to

establish whether or not the police officer has the mental capacity to make such important

decisions quickly because no suspect deserves to suffer because of intellectual

deficiencies of the officer. Therefore, the officer can not have any mental deficiencies

that could hinder their decisions because that would be unjustifiable. On that note,

citizens voice that lower educated officers are unappreciated because they believe that

without the college education they do not have the validity (to have the authority) to

decide futures.

All of these factors are important to consider when validating whether the officer

had the right to arrest an individual or not. Therefore, it is crucial to realize that there are

extenuating circumstances that could influence an officer’s decision to arrest in certain

situations which is unjust to an individual undergoing the arrest. This paper only points

out a few, but they are factors that have been studied and developed by various theorists.

All of the research was found in published books and articles, but that does not mean

there is no room for misconceptions and irrational theories. Every theory has the

possibility to be proven wrong, but this paper tries to show how to apply the theories in

order to prove that they are correct. This does not insinuate that this empirical research is

perfect, but it does help to begin the notion that the theories are on the correct path.

Through enhancing how personal factors, community characteristics, type of

policing, the educational level of the officer, and police misconduct, the idea that arrests

could be influenced by extenuating factors is established. Factors such as these should

should be stopped. Though, unfortunately, crime and enforcing justice is a never ending

process. Therefore, it can never be perfected and it is extremely important for authorities

to create guidelines for officers to follow in regards to how much discretion they should

exert (Whisenand, 198). This creates the arresting stage of the adjudication process to be

very complex with room for mistreatment. This mistreatment of unethical expression of

discretion regarding arrests can cause many future problems for victims of this type of

misconduct.
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