7.1 The Ethics Surrounding Discretion

According to McGregor (Kleinig,1996), discretion can only be interpreted as those decisions that are made with lawful authority rather than decisions made for illegal reasons. Furthermore, the individuals within an institution must have lawful authority to make the decisions and must operate under the constraints acceptable to others within the organization or profession. This definition is useful as it allows discretion to be considered in a legal context rather than only when police officers operate illegally and decide to commit prohibited acts, which is not considered to be lawful discretion. Kleinig (1996) accordingly considers these illegal acts not as discretion but rather as a decision to engage in forbidden conduct. In a law enforcement context, discretion only concerns decisions that are made in a legal setting. When decisions that are made by officers do not yield the desired positive results, but are made in good faith, these decisions still fall under the umbrella of discretion. Decisions made by officers without good faith are not classified as discretionary.

Discretion in law enforcement, and especially within policing, is critical to both the functioning of the police department and to the relationship with the public the police department serves. It is unusual within the paramilitary policing environment, due to the inverse relationship between discretion at the top of the rank structure and that of the lower end of the rank structure, compared to military bodies and some commercial enterprises (Manning, 2010). Officers who have recently started in patrol exercise more discretion than the chief constable or the highest rank within the department. In comparison, a general in the army possess discretionary powers at a much higher level than does a low-ranking soldier.

There is an inevitable tension that exists between paramilitary agencies that require members of all ranks to follow orders and those agencies that acknowledge discretion among members of lower ranks is necessary to function. In the military, discretion is seldom used at lower levels. Orders are given and are to be followed regardless of the feelings or desires of the subordinate. The move toward more discretion inevitably leads police services away from the military hierarchical structure to a more organic structure in which decisions are made throughout the organization (Hughes and Newton, 2010). Key to the argument, however, is that some in law enforcement view professionalism as partially gauged on the amount of discretion that is afforded to an occupation, and it is in this respect that a shift toward more discretion will result in police services being more professional.

It is also important to explain how the term professionalism will be used in the context of law enforcement. While arguments persist as to whether or not policing is a “profession” or an “occupation,” it is important to note that professionalism, within a law enforcement context, is related to the ability of police officers to exercise discretion with a level of autonomy (Villiers, 2003). More specifically, the meaning of professionalism in this context is related to the freedom of police to make discretionary operational decisions. When discretion is removed from police due to managerialism and accountability, professionalism decreases. Klofas, Stojkovic, and Kalinich (1990) use the term deprofessionalization to describe this process. Without discretion, it is argued, an organization loses its professionalism.

The shift to more professionalism requires the need for management to proactively promote operational decisions in a manner that is reflective of an organic organization and still be able to control its members (Jones, 2008).

However, Sanders and Young (2007) take a dim view of police management’s ability to control the discretion of operational police officers. Discretion, they argue, has the potential to:

• Lead officers to fabricate evidence
• Look for guilt rather than truth
• Summarize statements with bias
• Handle exhibits poorly and fail to disclose evidence

The ability to control and provide effective leadership to officers, who possess more discretion and autonomy than the management, raises serious implications for police managers.

Crawshaw, Devlin, and Williamson (1998, p.24) argue that it is due to the discretion afforded to police at the operational level that police work is unsupervised and for large amounts of the officer’s day “unsupervisorable.” Pagon (2003, p.159) refers to this as the “discretionary paradox” in which police officers are answerable to their superiors even though they operate with a high degree of autonomy and out of view of their supervisors.

An irony within law enforcement exists because while a law enforcement structure is different from the military, the police still have a quasi-military structure. To further complicate matters, within policing specifically, sergeants have an increased role in administration, which has limited their ability to provide supervision on the street. Ultimately, this does not allow for close supervision of junior officers who are forced to exercise their discretion often without the benefit of the wisdom of experienced supervisors (Butterfield, Edwards, and Woodall, 2005). Lipsky (1980) warns that the need for a high degree of control through supervision is critical in allowing discretion to be effective; without such control, officers will make decisions that are self-promoting and in opposition to organizational goals. Direct supervision and control is a difficult task for front-line managers who are faced with an increased workload.

Because of the discretionary mistakes that are inevitably made by officers, attempts have been made to control operational decision making among police officers (Butterfield, Edwards, and Woodall, 2005). Lipsky (1980) notes that discretion has been curtailed in regards to domestic assaults where police officers are encouraged to charge offenders rather than informally resolve the situation. In British Columbia, the Violence Against Women in Relationships Policy was introduced in 1993 and underwent changes in 2010. The policy makes clear to officers the protocols, roles, operational procedures, and responsibilities they must adhere to when investigating instances of domestic assault (British Columbia Ministry of Public Safety and Solicitor General Ministry of Attorney General, Ministry of Children and Family Development, 2010). Policies such as these are regarded as examples of positive arrest policies (or legislation) where the intention is to limit discretion in favour of arrests (Rowe, 2007). Since this policy is intended to limit discretion, it ultimately holds officers accountable if they choose not to arrest while still affording them the facade of autonomy (Rowe, 2007).

Studies have shown that there are problems with such policies and legislation, and an examination of such problems highlights the benefits of a shift to more discretion (Fyfe, 1996; Mastrofski, 2004; Neyroud, 2008; Rowe, 2007). In a study of officers’ perceptions of the Domestic Violence, Crime and Victims Bill, an equivalent example from Britain, Rowe (2007) found that officers were concerned about the ethics of positive arrest policies in cases where they would not have arrested had it been left to their discretion. Officers felt that when they are forced to arrest suspects in cases where they would otherwise operationally decide against charges, their ethical standards would be compromised as they believed that such charges would be unjust. Other problems associated with the legislation included such things as increased workload, reduced professionalism, and the potential for worsening a situation due to the arrest (Rowe, 2007). The Domestic Violence, Crime and Victims Bill (2003) demonstrates inherent problems when discretion is curtailed either through legislation or organizational policy; however, it does highlight three benefits that would result from a shift to more discretionary powers in operational decision making, namely greater efficiency or a smaller workload (Davies and Thomas, 2003), professionalism and ethics (Villiers, 2003), and leadership within the junior ranks of the service (Bass, 1990).

It is impossible for the police to detect all crimes all the time. However, even if the police were able to detect every crime, resources would not be sufficient to investigate each one and make an arrest. Discretion is needed to filter offences so that only those that are most important will be investigated, even though at times such discretion may be misused (Tillyer and Klahm IV, 2011). Without discretion the police, and indeed the whole criminal justice system, would become overwhelmed with cases, resulting in public displeasure (McLaughlin, 2009). Lipsky (1980) further asserts that discretion among police officers will always be mandatory due to the inevitable lack of resources and the need for an efficient service. Decisions, ethically made, will allow for charges to be limited to only those that matter and will render the police service more efficient in prosecuting only such offences.

However, while efficiency is important in all public organizations, there is the danger that police agencies will lose their way if efficiency is promoted over ethical and rightful decisions concerning the protection of the public and if citizens are denied justice. Rawls (1971, p.71), in his seminal theory on justice, observes that “the principle of efficiency cannot serve alone as a conception of justice.” Discretion, according to Rawls (1971), should not be used as a means of ensuring efficiency but rather as a way of applying a utilitarianism counterbalance to unjust laws within the justice system. The end result should never be efficiency at the expense of human rights and ethical policing. Dobel (2005, p.161) extends this thought process to discretion when noting “that the existence of discretion increases the tension between liberal democracy and public management and administration.” The end result of using discretion as a means to ensure maximum efficiency potentially leads to an abuse of process in which the rights of individuals are superseded by the will to maximize results with minimal resources (Dobel, 2005).

Therefore, the goals of the organization can become ambiguous, caught between ensuring democracy and individual rights and promoting efficiency. Goal ambiguity can lead to placing the rights of individuals at lower levels of importance and can be further fostered by the different subcultures within the police service (Lipsky, 1980).

Goal ambiguity is consistent with some of the inherent problems faced by police officers in operational decision making. Lipsky (1980) identifies a conflict that police confront between client-oriented goals, social-engineering goals, and organizational-centred goals, and spousal-assault policies are an example. In this instance, an officer is mandated to charge where there is evidence even if the officer feels charges are not appropriate and go against the goals of the client—for example, if the victim does not wish to pursue charges (Rowe, 2007). Likewise, an officer who is acting only to comply with policy guidelines may be inclined to perform poorly to compromise the investigation, thereby subverting the charge which he or she was obliged to make, however reluctantly (Lipsky,1980).

Proper use of discretion, within the parameters of McGregor’s definition (as cited in Kleinig, 1996), will effectively allow the state to save resources while enforcing only the violations that the public want enforced. According to Reiner (2010), police require the ability to use discretion due to the inevitable lack of police resources to enforce all laws all the time. While police services chronically lack the resources to formally enforce all laws, they must, as a result, allow officers to determine which laws will be enforced at the operational level (Crawshaw, Devlin and Williamson, 1998; Lipsky, 1980). The discretion allowed at the lower levels of the hierarchy allows police services to spare precious front-line resources while concentrating on those offences that should be enforced in accordance to the police service’s values and/or the values of the community the agency serves. While discretion creates an efficient system, the proper operational decisions must be made at the lower levels of the hierarchy, which will benefit the agency by fostering leadership throughout the organization.