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Police Discretion Discretion, uncertainly, and inefficiently are rampant and essential in criminal justice. Nobody expects perfection. That would neither be good nor fair. Justice is a sporting event in which playing fair is more important than winning. Law enactment, enforcement, and administration all involve trading off the possibility of perfect outcomes for security against the worst outcomes. Policing is the most visible part of this: employees on the bottom have more discretion than employees on the top. Philosophers such as Ronald Dworkin and H.L.A. Hart have referred to discretion as “the hole in the doughnut” (doughnut theory of discretion) and “where the law runs out” (natural law theory). In perspective, discretion is the empty area in the middle of a ring consisting of policies and procedures. And remember Davis’ definition – the making of choices from among a number of alternatives? The freedom of being able to make choices is called a strong sense of discretion. In the weaker sense we would consider cases in which not only the rules don’t apply, but the officer makes individualized judgments. In both sense, it’s the problem of loose definition. Some discretion terms may be helpful to analyze. Discretion-as-judgment—discretion is the opposite of routine and habitual obedience. It brings knowledge, skill, and insight to bear in unpredictable ways. Police are not solders who must blindly follow orders. Police must be more than competent than applying the rules; they must adapt those rules to local circumstances in a rule-bound way. Discretion-as-choice—discretion is not just a matter of realizing when you’re in the hole of the doughnut, or a “grey area”. It involves making personal contributions, judgment calls, exercising autonomy, and individual solutions. It’s about the courage to make your own decisions, to have personal input, following your conscience, even if those decisions are reversed later by a superior. Discretion-by-discernment—discretion is not just about making “safe” choices, or being “soft”. It’s about making good, virtuous choices by habit or the wisdom that comes from age. Prudence, foresight, the ability to size up people, arguments, and situations. Tactfulness, tolerance, empathy, and being discreet are all forms of discernment. Discretion-as-liberty—discretion is not where the law ends, nor is it the .

. .emselves, precedent set by the past behavior of police officers, need to build security for future police officers. Vice crime—vice is crime against the public order or morality (e.g., prostitution, nude dancing, gambling, pornography, illegal sale of alcohol, narcotics). Such crimes are also “victimless” in the sense that participants are involved consensually and willingly. There are a number of reasons why vice enforcement is uneven, sporadic, and ineffective: the laws are almost unenforceable. Most police departments can’t afford special vice units, and such investigations are costly and time-consuming. They go after it when opportunities avail themselves. Vice enforcement encourages illegal police activity, like wrongful searches, planted evidence, entrapment, corruption, and organized crime infiltration. In summary, police discretion appears to be a double- edged sword. It can be used for good or bad. It’s not as simple as it being right or wrong. Certainly if the sources of discretion included individual police officer prejudice, whim or caprice, this would be completely wrong, but there are other more important causes of discretion, as we have discussed.

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