Ethical Dilemmas and Decisions in Criminal

Justice 8th Edition Pollock

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CHAPTER 6 – Police Discretion and Dilemmas

CHAPTER 6 CONTENTS
Discretion and Discrimination
Discretion and Criminal Investigations
Discretion and the Use of Force
Conclusion

CHAPTER OBJECTIVES
1. Provide any evidence that exists that law enforcement officers perform their role in a
discriminatory manner.
2. Present the ethical issues involved in proactive investigations.
3. Present the ethical issues involved in reactive investigations.
4. Present information concerning the prevalence of and factors associated with the use of force by
police officers.
5. Enumerate predictors associated with the use of excessive force.

CHAPTER SUMMARY
Controversial issues regarding police methods are abstract, but for individual officers who are faced with
dilemmas regarding what they should do in certain situations, the questions are much more immediate. To
resolve them, the individual should look to legal holdings, departmental policies, and finally, ethical
rationales. Utilitarian reasoning is used to justify many actions, but the question remains whether it is ever
ethical to achieve a good end through bad acts. How one resolves the dilemmas involved in policing has
everything to do with whether law enforcement officers are seen fundamentally as crime fighters or as
public servants.

CHAPTER OUTLINE
DISCRETION AND DISCRIMINATION
 When individuals have discretion, individual prejudices and perceptions of groups such as women,
minorities, and homosexuals can influence their decision making
 If these views include prejudicial attitudes toward groups, and such prejudices affect decisions,
those groups may not receive the same protections as “good” citizens.
 This becomes even more of a problem when the police occupational culture reinforces prejudicial
views of groups of citizens.
 Discrimination often takes the form of either enforcing the law differentially or withholding the
protections and benefits of the law.
 Studies show that civil rights complaints against police are correlated positively to the percentage
of minorities in the population, as well as the income differential of the jurisdiction.
 Some studies report that lower-class African Americans have significantly more negative
interactions with police.
 More than twice as many report disrespectful language or swearing by police officers.
 It is possible that as illegal immigration becomes a more central political issue, local law
enforcement agencies will be pressured to use “any means” to help enforce immigration laws, and
that this will lead to discriminatory treatment of Latinos.
 Racial profiling occurs when a police officer uses a “profile” as reasonable suspicion to stop
someone; the so-called profile is based on race.
 A “pretext stop” refers to the practice of police officers to use some minor traffic offense to stop
the individual and, in the course of the traffic stop, look for other evidence of wrongdoing,
specifically by a search, usually a consent search.
 Studies on racial profiling show that minorities may be stopped in numbers far greater than their
proportion of the population would indicate, and that black officers are just as likely as white
officers to stop blacks in disproportionate numbers.
 Some charge that Arizona’s new law, passed in the spring of 2010, requiring officers to inquire
about citizenship if there is a reasonable suspicion that the person is an illegal immigrant will lead
to racial profiling.
 Others argue that the law specifically states that race or ethnicity cannot be used as the sole criteria
for stopping a person.
 Generally, the law allows the use of race as one element in the decision to stop, but does not allow
it to be used as the sole element in the decision to stop or for profiling purposes.
 Ultimately, there are three questions concerning racial profiling that must be considered
separately: What is the most efficient and effective method to identify criminals and terrorists?
What is the legal duty of an officer and what are the civil rights of an individual in any interaction
between them? Should an officer act upon a belief and suspicion created by nothing more than an
individual’s membership in a minority or ethnic group?

DISCRETION AND CRIMINAL INVESTIGATIONS

 Proactive investigations – police officers initiate investigations rather than simply respond to
crimes.
o Drug distribution networks, pornography rings, and fences of stolen property all tend to
be investigated using methods that involver undercover work and informants. Deception
is a necessary element in this type of investigation. In fact, deception is recognized as an
integral part of police work.
o Barker and Carter proposed a typology of lies differentiating accepted lies, tolerated lies,
and deviant lies. Undercover investigations are based on accepted lies; but there are
issues as to how such lies are employed.
o Asset forfeiture laws allow law enforcement agencies to confiscate and keep assets
associated with illegal enterprises. Most property is seized through civil asset forfeiture
actions which require less due process than criminal procedures.
o Informants are individuals who are not police officers but assist police by providing
information about criminal activity, acting as buyers in drug sales or otherwise “setting
up” a criminal act so police may gather evidence against the target.
o One of the biggest problems with informants is that their reliability is highly
 questionable.
o Sometimes officers are tempted to manufacture informants.
o Some officers openly admit that they could not do their job without informants.
o South summarizes the ethical issues with using informants as follows:
 Getting too close and/or engaging in love affairs with informants
 Overestimating the veracity of the information
 Being a pawn of the informant who is taking advantage of the system
 Creating crimes by letting the informant entrap people
 Engaging in unethical or illegal behaviors for the informant
 Letting the informant invade one’s personal life
 Using coercion and intimidation to get the informant to cooperate
o In legal terms, entrapment occurs when an otherwise innocent persona commits an illegal
act because of police encouragement or enticement. Two approaches have been used to
determine whether entrapment occurred: the objective approach and the subjective
approach.
o Generally, undercover actions are analyzed under utilitarian ethics. If the relationship is
an intimate one, there should be a great utility at stake before that relationship is used. If
the operation is a simple buy-bust relationship, then there is less damage to trust and,
therefore, the utility derived can be less in order to justify such deception.
o Marx argues that undercover operations might actually create more crime.
o Cohen proposed a test to determine the ethical justification for police practices. His focus
is the use of coercive power to stop and search.
o These investigative techniques are unlikely to be eliminated. Perhaps they should not be,
as they are effective in catching a number of people who should be punished.
 Reactive investigations – a crime has already occurred and the police sift through clues to
determine the perpetrator.
o When police and other investigators develop an early prejudice concerning who they
believe is the guilty party, they look at evidence less objectively and are tempted to
engage in noble-cause corruption in order to convict.
o Protocol is necessary to avoid errors in judgment when a criminal investigator who
“knows” someone is guilty happens to be wrong. Good investigators do not let their
assumptions influence their investigations, because assumptions jeopardize effectiveness.
 Interrogating a person one believes to be guilty of a crime is probably an extremely frustrating
experience. The “third degree” is no longer used, so officers have resorted to persuasion, including
the use of deception: the classic father confessor approach or “good cop/bad cop” are ways to
induce confessions and/or obtain information without using force.
 Interrogative techniques can be very effective. In fact, they have resulted in false confessions.
Some researchers estimate that about 5 percent of confessions are false. Research indicates that
suspects don’t always understand their Miranda rights, and juveniles are especially prone to
psychological manipulation.
 The question of whether police should use immoral means to reach a desired moral end is referred
to as the Dirty Harry problem.

DISCRETION AND THE USE OF FORCE

 Police have an uncontested right to use force when necessary to apprehend and/or subdue a
suspect of a crime. When their use of force exceeds that which is necessary to accomplish their
lawful purpose, or when their purpose is not lawful apprehension or self-defense, it is defined as
excessive force and is unethical and illegal.
 Worden and Catlin (2002) reported that a small number of officers seem to be disproportionately
involved in use--of--force incidents and, arguably, are more likely to also engage in excessive
force
 There is some evidence that seems to indicate that officers that use excessive force may be
identifiable by certain psychological traits:
o Lack of empathy
o Antisocial and paranoid tendencies
o Proclivity toward abuse behavior
 o Inability to learn from experience
o Tendency not to take responsibility for their actions
o Cynicism
o Strong identification with the police subculture
 As to race, there were few significant relationships, but the highest force factors occurred with
Hispanic officers to Hispanic suspects. Black and Hispanic officers who arrested black suspects
also employed higher levels of force.
 Amnesty International alleges that police use CED or stun guns in hundreds of cases in which
their use is unjustified and “routinely” inflict injury, pain, and death.
 The use of force in response to perceived challenges to police authority is highly resistant to
change, even in the presence of public scrutiny and management pressure. Research indicates that
the “culture of force” is international in scope and this may be due to similarities experienced by
all police officers.
 It is estimated that officers use excessive force in a miniscule portion of total encounters with the
public – estimated at one-third of 1 percent.
 The most common explanations for excessive force is that force is the only thing “these people”
understanding or that “officers are only human” and consequently get mad, just like anyone else
would in that situation. Another prevalent comment is that the person “deserved it” because of his
or her commission of a crime or because he or she ran away from police.
 In documenting the perceptions of the use of excessive or unnecessary force, Alpert and Dunham
reported on research where officers estimated that 13 percent of vehicle pursuits ended in
excessive use of force.
 Weisburd and Greenspan asked officers about use of force, and 22 percent of the respondents said
that police officers in their department “sometimes,” “often,” and “always” used more force than
necessary when making an arrest.
 Nothing is more divisive in a minority community than a police shooting that appears to be
unjustified.
 The Supreme Court has defined legal force as the force which is objectively reasonable. What is
reasonable, however, is still subject to controversy.
 Police departments’ use-of-force policies specify when force may be used, when it may not be
used, and the proper level of force to be used given certain circumstances.

CONCLUSION
 This chapter explored some of the ways that police use of authority, power, persuasion, and force
have created ethical dilemmas and sparked controversy.
 It seems clear that how one resolves the dilemmas involved in policing has everything to do with
whether law enforcement officers are seen fundamentally as crime fighters or as public servants.

ETHICAL DILEMMAS
Situation 1
Your first big case is a multiple murder. As the defense attorney,you have come to the realization that your
client really did break into a couple’s home and torture and kill them in the course of robbing them of
jewelry and other valuables. He has even confessed to you that he did it. However, you are also aware that
the police did not read him his Miranda warning and that he was coerced into giving a confession without
your presence. What should you do? Would your answer be different if you believed that he was innocent
or didn’t know for sure either way?

Ethical Judgment: You must file a motion to exclude the confession.

Moral Rules: One should do one’s duty.

One should follow the law.
One should live up to one’s obligations.
One should not lie.
Ethical System: Under ethical formalism, you must do your duty which is to provide a zealous defense; to
do otherwise is to lie to the client and to the court (at least by omission). Act utilitarianism might justify
doing something different if there was irrefutable proof that the defendant was guilty, but even rule
utilitarianism could not support a defense attorney doing anything less than zealous defense. The problem
is the phrase “realization.” In reality, you don’t know if he is guilty or not; that’s for the jury and/or judge
to decide and we can’t have a system where it is the defense attorneys who get to decide who deserves a
zealous defense. Note that by filing a motion to exclude the confession, you have placed the moral dilemma
in the hands of the judge.

CLASSROOM ASSIGNMENTS
1. Watch video of Rodney King beating and identify the aggressive moves that justified the continued use
of force.

2. Have students conduct newspaper search of ethical scandals in law enforcement.

3. Watch Training Day (a movie) and identify how the noble cause of drug interdiction was corrupted.

4. Have students break into groups and discuss how they would handle the dilemmas at the back of the
chapter. Have them analyze at least one dilemma using the ethical systems (the point is to see how
noble cause corruption is based in utilitarianism).

5. Watch the movie “Donnie Brasco” and identify and discuss the ethical dilemmas faced by an officer
operating undercover.

EXERCISE
What Would You Do?
Discuss how you might resolve these situations if you were an officer:
1. If you encounter travelers who have been robbed during their passage through the city, should you
simply take a report and leave such victims on the street to fend for themselves? Should you transport
them to a mission? Should you take up a collection to help them on their way?
2. You respond to a burglary and find that the victim is desperately poor and the theft has left her without
the resources to pay rent, buy food, or keep the electricity on.
3. Your partner of several years has become withdrawn and angry. There have been instances when you
have worried about what he/she was going to do next, particularly when dealing with uncooperative
individuals. What, if anything, should you do? Why?
4. Based on bits and pieces of conversations you have overheard, you begin to suspect that a couple of
officers in your unit are taking bribes or thinking about it. What, if anything, should you do? Why?