Note: This is actually the second video in the Dynamic of Discretion series. The first video had such poor audio quality due to wind and surf noise coming from the beach (at the Dreams Puerta Aventuras Resort in Riviera Maya) that I hesitated to even post it. But for those of you are dedicated Police Dynamics fans, I have included it below. This video stands on its own, but if you want to watch them in order, watch the second one first…
Recognizing and avoiding words, actions, or attitudes that could bring undesirable consequences
However, that is not the use of the word that I want to look at here. I’m talking about police discretion. So for our purposes, let’s define it this way:
The just exercise of executive authority
Have you noticed that much of our discretionary authority as law enforcement officers has been severely limited over the years? Either through legislation or judicial decisions, some of your authority to make discretionary decisions in the field has been taken away. The reason is that we have made so many discretionary choices based on things other than character: what was their last name, how pretty was she, was it getting near the end of a shift, etc.
When I first went through the Criminal Justice Academy in South Carolina (way back in 1982…!), I remember one instructor telling us that we should have already made up our minds about whether we were going to write someone a ticket before we ever approached the car. The idea was to be sure that we were treating everyone as fairly as possible, but this is a bad principle to apply.
First of all, fairness doesn’t really exist in the real world. Fairness is not our goal, justice is. We work for the Criminal Justice System, not the Criminal Fairness System!
Think about it. Suppose I have two different cars run through the same red light. The first driver is an arrogant punk who disrespects the law and my lawful authority. I am probably going to write him a ticket. The second driver turns out to be a husband rushing his wife who is in labor to the hospital. I am not likely to give him a ticket. This is an exercise of discretionary authority and it is entirely appropriate for us to make these kinds of decisions in the field.
Let’s look at another example. Suppose you clock someone speeding. What enforcement options are available to you? The first option is to do nothing. Perhaps, for whatever reason, you decide to take no enforcement action whatsoever. That is a discretionary choice. A second option is to flick your blue lights on and off just to call the driver’s attention to the fact he was speeding. A third option is to pull them over and give the driver a verbal warning. A fourth option is to give them a written warning. A fifth is to write them a ticket, but for some lesser offense than the speeding itself. A sixth is to write them a ticket for the actual offense. And a seventh option is to write them a ticket for speeding, plus any other violations that you might find such as failure to wear a seatbelt or an equipment violation.
With something as simple as a speeding infraction, you have at least seven discretionary choices! So the question becomes, how do you choose among those options. The principle is this:
Let the nature of the offense determine the range of enforcement options and let the character of the offender determine which option you choose
If the driver has a good attitude and appears to be genuinely repentant, you may choose to let them off lightly. On the other hand, if you stopped that arrogant punk I described earlier, you should choose a more severe option. There is nothing improper about this at all. In fact, it is just good police work. The proper exercise of your discretionary authority is perhaps one of the most powerful tools you have at your disposal.
But it means you must be able to assess the person’s character quickly, something you do all the time on the streets anyway. In the next video, we will look at the Five Types of Offenders which will give you some additional factors to help make the character assessment.
Sheriff Ray Nash