Police Ethics: Discretion 1
Police services all around the world have various forms of ethics that govern their behaviour, much like any other agency or organisation. Perhaps more than most, they are under an intense spotlight, their everyday behaviour scrutinised through forms of media, political power and their own hierarchy. A range of ethics for the police service include behaving honestly in a bid to abstain from forms of corruption, comply with all set policies and guidelines, avoid conflict of interest where possible, report the misconduct of colleagues and most importantly, treat everyone with equal respect and courtesy, which is important for the use of discretion.
In this essay, I intend to examine what is discretion, how it is applied to various sections of the community (in particular, indigenous and migrant populations) and how it is monitored in a way to encourage fairness during decisions that need to be made.
What is discretion?
Discretion is based on decisions police make in their everyday duty as a police officer, whether or not they decide to charge a particular person or refer them to a partner agency for assistance. “Certain rules apply but ultimately, the final decision will be made by the individual officer on the scene” (Broadhurst & Davies, 2009: 87). By law, police officers are required to treat everyone equally but their judgement can be based on their personal beliefs and upbringing experiences in addition to police culture. “In real life, police officers have many opportunities on a daily basis to treat people differently” (Broadhurst & Davies, 2009: 87).
For young people for instance, police have a range of options such as cautions, a written warning, and arrest or refer them to a juvenile agency. For a person inebriated, a charge may be replaced with supervision in a holding cell under they are sober enough to be released, a visit to the hospital or referral to a shelter equipped with resources to deal with such a person.
How is it used?
There are various elements that can influence discretion, including the offender’s attitude and willingness to cooperate, hierarchy decisions to crack down on particular groups of people or offending behaviour and the police officer’s behavioural influences of elitism. “Moral distance can occur when an individual assumes they are a better person because of inherent characteristics such as race, sex, age or socio-economic background” (Grossman, 1995: 161).
There is an expression ‘having a chip on the shoulder’, which generally describes people who have a grievance that can provoke disputation. It could be a result of an officer not waking up in a good mood or even a minor personal domestic quarrel which could reflect their decisions to enforce anything that comes their way during the day.
On the other hand, “it is practically impossible for the police to enforce all laws on all occasions” (Reiner, 2000). There may be a number of laws that generally mean the same thing but may not be appropriate for a police officer to lay all the charges onto a person at once, which then requires the use of discretion in the form of selection. In addition, the law requires interpretation for it to be carried out, which “inevitably entails a degree of subjectivity on the part of the officer” (Rowe, 2010: 99).
Police discretion at times, appears to be an issue with homosexuals or those of a different race when compared to the ‘mainstream Australian’, as an example. “Police culture has become a convenient label for a range of negative values, attitudes, and practice norms among police officers” (Chan, 1996:110). In an everyday scenario, it could be possible that white female drivers are less likely to be charged with a traffic offence when compared with an Asian male, depending on the attitude of the police officer. This could also be replicated with the contrast of someone driving a flashy Japanese import compared with a subtle car that barely warrants any attention.
Police and indigenous Australians Australian Indigenous make up 2.4% of the nation’s population yet Indigenous youths represent 54% of those incarcerated in a juvenile institution (Cuneen & White, 2010: 142). There are a wide range of reasons that could contribute to these alarming statistics including colonisation, widespread racism in the Australian community, deep poverty, lack of education, drug & alcohol abuse, family violence and a lack of opportunities.
On the other hand, it is possible that the high levels of incarceration can be a result of police officers failing to negotiate discretion appropriately, at least treating them equally to a Caucasian young person from a good family environment. “Aboriginal young people do not receive the benefit of a police caution to the same extent as non-Aboriginal young people (Luke, 1988 ).
An explanation for the high rates of incarcerated Indigenous young people has in the past been attributed to the belief that “they commit a greater number of offences, including more serious offences” (Cuneen & White, 2010: 142). In a number of statistics, indigenous Australians do not attend school as frequently or for as long as the majority of mainstream students, which could make them susceptible to police attention for their mere presence in public at the wrong time.
In a study by Luke and Cuneen, it was found that young Indigenous offenders in New South Wales were more likely to be prosecuted by police than non-Indigenous offenders, even if they had no prior record of court appearances or caution (1990: 155). “Evidence shows consistently that Indigenous young people will invariably receive the most punitive option available” (Cuneen & White, 2010: 142).
In addition, they are less likely to receive bail than non-indigenous youths. Factors to be taken into consideration could include a lack of family stability, offending parents, a past record of failing to attend court or perhaps being a ward of the state in the care of the government. Culminating with the police attitudes of trying to clean up the streets and eradicate ‘street crime’, the police may fail to use discretion when dealing with indigenous Australians who appear at risk to themselves as well as to the community.
Police and migrant citizens More often than not, it appears that groups of young people are identified as ethnic youth gangs with the ‘visible difference’ tending to heighten media attention and moral panics. “Prejudicial stereotyping often leads to the differential policing of a whole population group” (Cuneen & White, 2010: 179). This at times in the past has led to police operations and taskforces to crack down on a particular ethnicity.
If ethnic young people are turning to gangs, perhaps it is for protection against widespread racism and the lack of opportunities due to their ‘differentness’. The police culture could also be influenced by seeing ethnic citizens as ‘outsiders’, disabling any tolerance they have, whether or not the person of interest now has an Australian citizenship status or were born in Australia.
In the New South Wales police force in 1994, newly elected Police Commissioner John Avery attempted to reform the policing service with changes to the police culture in order to eliminate, racism, corruption and improving relations with the community, particularly those of an ethnic origin. His changes included altering the command structure, a tougher recruitment criteria to eliminate racist candidates as best as possible and the adaptation of new community policing methods. It has been said that the biggest obstacle to ensuring these new changes are a success, is the police culture that is embedded in the state (Fitzgerald Report, 1989:200).
How is it monitored? Although discretion is used in many occupations such as the health care profession, police officers are in a special category, a ‘position in that they embody the symbolic power of the sovereign state” (Rowe, 2010: 99). Junior officers, who appear to weld the bulk of the discretionary powers on the frontline, have fairly little supervision and governance in relation to the decisions they make. There are several investigative bodies such as the internal affairs, police ombudsman and the Corruption and Crime Commission (WA) but only if the person in question or a witness has made a complaint.
In cases that are completely investigated into certain aspects of police mentality or conduct, recommendations could be made to policy makers to alter the forms of discretion used in certain areas to improve policing in general.
Conclusion Discretion is one of the most important police ethics to examine because it is the first response when attending to an offender or young person at risk. By understanding how police officers use this power, we can have a better understanding of how these decisions are made. Unfortunately, there are a wide range of reasons behind discretion ranging from police culture, personal attributes of the officer in question, hierarchy influences and pressures and even the attitude of the person being questioned.
It is evident that at times no matter how well the offender is cooperating in assisting police with their inquiries, certain personal characteristics such as nationality, indigenous Australian status or even being homosexual, they may be arrested and charged to the maximum a police officer is able to, despite no warrant for such actions in lieu of behaviour in comparison to say, a well-to-do female Caucasian Australian.
Despite investigatory bodies intent on examining claims and complaints of excessive enforcement that could perhaps have been treated instead with due discretion, there is very little the hierarchies and ombudsman can do to make policing fairer, due to the extreme lax supervision police officers have, in particularly with junior employees. By identifying issues such as migrant and indigenous maltreatment, implementations like community policing focusing on particular sectors and behaviours, may have its greatest positive impact with improving the amount of discretion they receive on contact with police officers.
Broadhurst, R., & Davies, S. (2009). Policing in context: An introduction to police work in Australia. South Melbourne, Australia: Oxford University Press.
Chan, J. (1996). Changing police culture. The British Journal of Criminology. 36(1), p. 109
Fitzgerald Report. (1989). Report of a commission of inquiry pursuant to orders in council. Brisbane: Commission of inquiry into possible illegal activities and associated police misconduct.
Grossman, D. (1995). On Killing. Boston: Back Bay Books.
Luke, G. (1988 ). ‘Gaol as a last resort: The situation for juveniles’, in Findlay, M., & Hogg, R. (eds), Understanding Crime and Criminal Justice. Sydney: Law Book Company.
Luke, G., Cuneen C. (1990). Aboriginal over-representation and discretionary decisions in the NSW juvenile justice system. Juvenile Justice Advisory Council of New South Wales, Sydney. Reiner, R. (2000). The politics of the police. Oxford: Oxford University Press. Rowe, M. (2010). Introduction to policing. London: Sage Publications.