'EHE DEVELOPMENT OF AN
EN$TRUMENT FCR THE. DETERMEMATION
QF THE FACTCRS [NFLUENTIAL [N THE

EXERCISE OF
“SEYUATEQNAL PQEJCE DéESCRETlON“

Thesis for the Degree of M. S.
MICHIGAN STATE UNIVERSETY

Allan Robert Speevak
1966

 

LIBRARY

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MATERIAL

IN BACK OF BOOK

 

THE DEVELOPMENT OF AN INSTRUMENT FOR THE DETERMINATION
OF THE FACTORS INFLUENTIAL IN THE EXERCISE OF

"SITUATIONAL POLICE DISCRETION"

BY

Allan Robert Speevak

AN'ABSTRACT

Submitted to
Michigan State University
in partial fulfillment of the requirements
for the degree of

MASTER OF SCIENCE
School of Police Administration and Public Safety

1966

APPROVED (6 I“. (é‘gfinw
<:;;2!:%f é§;$1;34hAJL/'

k .

ABSTRACT

THE DEVELOPMENT OF AN INSTRUMENT FOR THE DETERMINATION
OF THE FACTORS INFLUENTIAL IN THE EXERCISE OF
"SITUATIONAL POLICE DISCRETION"

by Allan Robert Speevak

Within the metropolitan areas of America today,
many demands are placed daily upon law enforcement officers.
The officer in order to effectively complete his duties is
granted authority to command in situations requiring his
attention, and to effect the law by such measures as it
deems necessary. This role of enforcement is based on what
is termed "police discretion". On the street or at the
scene of an incident, however, the officer makes these
judgments necessarily with great Speed and objectivity.

This process of judgment within the incident by the indivi-
dual officer is defined as "situational police discretion"
and has become the focus of this thesis.

Specifically, an attempt has been made to identify
and define the exercise of discretion in police duties with
particular emphasis on the judgment of whether an officer
invokes the legal process. In addition, an attempt to derive
the possible influences upon "situational police discretion"
was accomplished so that an instrument or research tool

might be developed which would examine analytically the role

Allan Robert Speevak

of discretion in enforcement situations.

A basic exploratory research methodology has been
followed including a review of pertinent published litera—
ture on police discretion, the analysis of actual field
incidents and informal interviewing with officers in these
situations. The review of the literature examined discretion
by defining its role, the implications of its utilization,
and the controls placed upon.it. Several areas affecting
the exercise of discretion were explored in an effort to
uncover the factors which influence the judgment of an officer
in any call for police service. These included various
aspects of community relations, actual methods used by law
enforcement officers, the role of the legal system and the
total administration of criminal justice,as well as the
effect of the public, the mass media, and what has been
termed the internal factors of the job, its nature, and
the personality of the officer.

The analysis of the incidents was based upon seven
weeks participant observation in a large metropolitan city
police department. Narrative summaries of one hundred
incidents, checked for accuracy, were flow-charted in terms
of police actions, to reveal typical patterns and to identify
those points where both decisions are made and discretion is
involved.

It was found that the incidents could be categorized
into ten typologies involving five derived classifications

of decisions; programmed, investigatory, operational,

Allan Robert Speevak

discretionary, and charging. Some thirty police actions, it
was determined, could be utilized to accurately describe
any enforcement situation. In addition, based mainly on
the literature review and supported by the analysis of the
incidents, sixty-four factors influencing "situational police
discretion" were derived.
Based upon the above resulting data, an instrument

to identify and measure the influences on the decisions made
by police officers was developed. This was termed a Data
Coding Form, having been designed for computerized tabulation
and analysis. In addition, a companion Decision Incident
Chart was designed, and a complete methodology for a systema—
tic participant-observation study of "situational police
discretion” was proposed. Based on the derivation of the
influencing factors and on the standard police actions
utilized, it was hypothesized that the instrument developed
from this exploratory research was both valid and reliable.

i In this way it is hoped that the total area of
police discretion, which is a focal point of the problems
existing between the police and the community, might be
studied. This should allow for the determination of whether
discretion is being properly utilized by patrolmen, whether
it should therefore in fact be allocated to this level of
the police organization, and perhaps indicate how it might
be better controlled and guided through training and adminis-

tration.

THE DEVELOPMENT OF AN INSTRUMENT FOR THE DETERMINATION
OF THE FACTORS INFLUENTIAL IN THE EXERCISE OF

"SITUATIONAL POLICE DISCRETION"

BY

Allan Robert Speevak

A THESIS

Submitted to
Michigan State University
in partial fulfillment of the requirements
for the degree of

MASTER OF SCIENCE

School of Police Administration and Public Safety

1966

Without the continued support and
encouragement of two persons, this work

would not have been possible.

- To Mom and Dad

ACKNOWLEDGEMENTS

In the completion of the degree of Master of Science
as well as in the preparation of a thesis, success is dependent
upon a number of persons who assist, support, and influence
the directions of the author.

Sincere appreciation must be extended to Assistant
Professor Raymond T. Galvin whose patient guidance through-
out this past eighteen months was climaxed with the production
of this document. The Thesis Committee in particular, as
well as the faculty and staff of the School of Police
Administration and Public Safety deservespecial thanks for
their countless contributions and suggestions. Miss Linda
Bunker, my typist, deserves much of the credit for her
patience and fortitude throughout the many drafts. Yet
the tremendous exchange of ideas could not have been accomp—
lished without the constant support of a special group of
individuals, my fellow students.

While I am also indebted to a number of individuals
who have provided the many "stepping stones" to date, special
mention must be made of my grandparents, Mr. and Mrs. Myer
Speevak, who have always been at my side, and of Mr. and Mrs.
Alan Sheren, who have certainly helped to guide, what with

luck, will be a successful career in law enforcement.

iii

COPYRIGHT

by

Allan Robert Speevak

TABLE OF CONTENTS

Chapter Page
I. INTRODUCTION . . . . . . . . . . . . . . . . . 1
Statement of the Problem . . . . . . . . . 2

Scope and Nature of the Study . . . . . . 3

Importance of the Study . . . . . . . . . 6

Definitions of Terms Used . . . . . . . . 7
Organization of the Remainder of the Study 8

II. REVIEW OF THE LITERATURE . . . . . . . . . . . 10
A Discussion on Discretion . . . . . . . . lO\\a
Definitions . . . . . . . . . . . . . 10

The Role of Discretion in Law

Enforcement . . . . . . . . . . . . 12
Implications . . . . . . . . . . . . . 16
Controls on Police Discretion . . . . . . l7

Legislative and Legal Controls . . . . 20
Freedom or Protection? . . . . . . . . 22
Discretionary Aspects of Community
Relations . . . . . . . . . . . . . . . 24
The Social Disorganization . . . . . . 24
The Role of Law Enforcement . . . . . 31
Police Methods and Discretionary Non-
Enforcement: Duality in the Handling
of Deviants . . . . . . . . . . . . . . 35

V

Chapter ' Page

Arrests and Non-Enforcement . . . . . 35
Detention for Investigation . . . . . 42
Special Cases . . . . . . . . . . . . 44
Juveniles and Discretion . . . . . . . 47
Violence and the Use of Force . . . . 48
.Discretion and the Law . . . . . . . . . . 51

Legislative and Political Controls
Affecting Discretion . . . . . . . 51

The Imbalance Between Law and

Discretion . . . . . . . . . . . . 55

Police Work Under the Law . . . . . . 57

The Role of the Courts . . . . . . . . 61
Higher Visibility? . . . . . . . . . . 67
Administrative Influence Upon Discretion . 69
Administrative Discretion . . . . . . 69
Communication, Training and Discipline 72

"Internal" Police Factors Upon Discretion . 75
Nature of the Job . . . . . . . . . . 75
The Personality Factors . . . . . . . 77

The Public Voice: Influence Upon

Discretion . . . . . . . . . . . . . . 83
Education of the Public . . . . . . . 83
The Critical Atmosphere . . . . . . . 85

Police Discretion and the Influential
Factors . . . . . . . . . . . . . . . . 86

Summary . . . . . . . . . . . . . . . 86

vi

Chapter Page
Some Recommendations . . . . . . . . . 90

Conclusions . . . . . . . . . . . . . 94

III. ANALYSIS OF THE INCIDENTS . . . . . . . . . . 100
Method . . . . . . . . . . . . . . . . . . 100

Analysis of the Reports . . . . . . . . . 103

Summary . . . . . . . . . . . . . . . . m 122

IV. DEVELOPMENT AND UTILIZATION OF THE INSTRUMENT. 124
Objectives of the Instrument . . . . . . . 124

The Research Methodology . . . . . . . . . 125

The ObServation Method . . . . . . . . .1. 130

The Instrument . . . . . . . . . . . . . . 133

Use of the Instrument . . . . . . . . . . 138

Method of Observation . . . . . . . . 138

Procedure With the Instrument . . . . 147

Extrapolation of the Data . . . . . . . . 151

V. CONCLUSIONS . . . . . . . . . . . . . . . . . 156
Summary of the Research . . . . . . . . . 156

Importance of the Research . . . . . . . . 159

Recommendation for Further Research . . . 160

BIBLIOGRAPHY . . . . . . . . . . . . . . . . . . . . . 163
APPENDIX ONE . . . . . . . . . . . . . . . . . . . . . 168
APPENDIX TWO . . . . . . . . . . . . . . . . . . . . . 180

vii

CHAPTER I
INTRODUCTION

The role of the police officer in most American
cities today is totally ill-defined and indefinite. The
officer has become a buffer between the laws which he is
supposed to enforce on the one hand, and the needs and
desires of the community on the other. In theory, the laws
and community needs should be similar. Yet today, due to
many social and economic problems, this no longer appears
to be true. The result has been the total condemnation of
the police.

The conflict is most evident in what are termed
under-privileged areas in which a sub-economic standard of
life persists, reinforced by continuing unemployment, broken
families, and a high rate of social welfare. ‘This has led
to the development of a radical sub-culture of norms and
practices which are quite apart from the established law.

The police traditionally are agents of the govern-
ment, bound with the duty to enforce the law. While this
primary responsibility has not changed, they have been
called upon to both officially and unofficially answer for
a wealth of other community problems which range from traffic
to marriage counseling. The officers' actions in these

<2ases can only be based upon their training which in turn

reflects their official foundation, the law. Thus only
traditional responses or actions have been evoked to these
contemporary problems.

In view of this, it is necessary to determine whether
the police officer has been properly conferred with a clearly
defined status and concurrent allocated responsibilities and
authority. Such a determination requires observation of
the police in action to ascertain their required role and
the adequacy of the tools at their disposal. These police
tools involve their legal status, the police organization,
and the established policies.

While these factors are of utmost importance, it
must be realized that much of the criticism towards the
police originates in the street or at the scene of a dis-
turbance. It is stressed in this study then, that much
consideration and attention must be directed at the stages
when the police first come into contact with members of the
community, namely the functions of the individual patrolman.
It is friction at this point in the organization's contact
with the public that has, to some degree, nurtured the
"explosion." It is at this level that adverse criticism,f‘
in the form of public cries of discourtesy, harassment.
brutality, and false arrest, has been heard time and time

again.

I. STATEMENT OF THE PROBLEM

In view of the community crises and the demands made

<3ai1y upon law enforcement officers, a single influencing

factor in this position of trust and responsibility is all
important, that is, the role of police discretion.

"Discretion" involves a decision in which personal
judgment has become the guideline. For the police officer,
discretion is the consideration of particular, and often
Lzriique, circumstances in order to determine the objective,
1:11e nature, and the degree of the lawful action necessary and
demanded. In the field, these decisions are made necessarily
with great speed and supposed objectivity. It is this pro—
cess of judgment by the individual police officer which shall
be termed "situational police discretion."

This exercise of "situational police discretion" must
be analyzed to determine the adequacy of any existing guides
for the official action taken by police officers. In effect,
it is necessary to explore police discretion with a view
towards developing an instrument by which these "authorita-
ti ve decision processes" might be studied, evaluated, and

me a sured .

II. SCOPE AND NATURE OF THE STUDY

This study is an examination of the existence of,
e3*lercise of, and influences upon police discretion. The
following goals exemplify this objective.

(1) _'_1‘_g identify and define the exercise 9; discretion _i_n
mice duties. An attempt will be made, by a review of the
literature and by analysis of a series of field observations,

to determine the existence of discretion at the different

levels in the police organization. Where is discretion
used, when is it necessary and why, and how is it accomplished?
The particular judgment £23 to invoke the criminal law process
will be analyzed, in addition to showing where the process is
invoked. Both invocation and non-invocation procedures in—
volve the exercise of discretion at several stages, each of
which will be demonstrated. Thus it will be shown:
(a) where officers have no choice and are forced
to invoke the process;
(b) where officers have discretion to ignore the
legal process; and
(c) where there are no guides and the officers must
rely on pure judgment.
In total, then, this analysis should reflect the issue of
police discretion, its nature, and its role in law enforce-
ment.

(2) 3g identify the possible influences upon "situational
police discretion.” That there is a need for "situational
police discretion” is emphasized by the fact that there are
no hard and fast rules for the officer to follow in any given
situation. The normal procedure is for the policeman to
decide for himself whether or not to take action under the
particular circumstances. This decision is influenced by
11iS own personality and prejudices, his knowledge of depart-

HKBnt policy, and of the type of cases for which the prosecutor
w1.11 issue a complaint, and his knowledge of judicial decisions

5353 they bear on the situation. Thus several factors including

administration, legal, and operational issues are involved
which necessarily limit and affect his decisions.

(3) $9 develop an instrument 9; research tool gy_which the

 

 

role of discretion in enforcement situations may be examined.

 

 

 

It would be based on the influences affecting the police
officer's operational decision. Hopefully this instrument
will be refined so as to measure the amount of influence
bearing on an officer's judgment in an attempt to predict

the outcome. It will be developed through the use of standard
social-scientific research procedures, based on the factors
uncovered in (2). Based upon preliminary studies, it is pro-
posed that an instrument capable of analyzing what has been
defined as "situational police discretion" may be constructed.

The basic hypothesis of the research is that the

research instrument derived is valid and reliable, as sup—
ported by the literature, the experiences of the author as
a field research observer, and by logical reasoning. The
scope of this research, however, will be necessarily limited:

(a) The literature reviewed as a basis for the
instrument will be limited to published books
and periodicals on the topic:

(b) The analysis of typical police situations is
based upon narrative-style reports gathered while
acting as a field research observer. It is from
these step—by—step narratives that the logical
sequence of situational factors will be analyzed.

(c) An instrument for an analysis of the influences

on police discretion will be constructed.

III. IMPORTANCE OF THE STUDY

The total area of the use of police discretion is
really the focal point of the problem between the police
and the community which they serve. To have.realized that
discretion exists and is exercised is a first step. To
explore the necessity for the discretion and the influences
upon it could enable researchers to explain the most basic
enforcement processes, including the nature of the patrol
techniques, the warning, the arrest, and the use of physical
force.

It is hoped that an instrument such as the one pro-
posed would be employed to determine if discretion is being
properly used in the field at the patrolman's level. This
would provide a basis for judgments for the allocation of
more or less discretion by law, so that legislatures and
the judiciary would be given a factual and empirical basis
for rulings.

If discretion is to be retained in the field, the
instrument might well be able to illustrate how operational
decision making and training might be improved through a
knowledge of the factors influencing discretion.

Such an application should serve to indicate that

“fliere discretion on the part of the officer is necessary,
'tlle limiting or controlling conditions which influence his

.j“t1dgment either serve the public goals in law enforcement

or hamper the officer's functioning in his role as a public
servant, damaging community relations and endangering the

public safety.

IV. DEFINITIONS OF TERMS USED

It is important to start the research from a common
ground of understanding. The accurate defining of several
terms, in the light of how they will be used by the author,
is therefore relevant to the problem area. These definitions
are the synthesis of many ideas in the literature and the
author's judgments. Discussion in a later section will pro-
vide reference for these terms.

Decision. A decision is a choice from among a
selection of possible courses of action when confronted with
a problem. An "operational decision" will be the term used
for the decision made by a line police officer in the street
or at the scene of an incident.

Judgment. Judgment is the power of arriving at a
decision. It is an estimate based on the indications and
probabilities of the different factors affecting a problem.
It is then a type of personal decision made when facts are
not easily ascertained.

Influence. Influence is used as a noun-—as something
that affects the condition or the development of, in this

research, the dec is ion .

Authority. Authority refers to the right to command.

-1Tt1 is the power and responsibility to control a situation by

virtue of the office vested in the man, here officers engaged
in the administration of justice.

Discretion. Discretion is the power of individual
judgment. It is authority, used here with reference to the
decision-making process. It includes all the measures taken
to arrive at a decision and thus involves a personal judgment.
Discretion commences when the individual becomes aware of a
problem or situation and terminates with the action follow-
ing the judgment. "Situational police discretion" will
refer to the decision-making process carried on with authority
on the street, at the incident, or in the station by police
officers.

Arrest. Arrest is, broadly speaking, any interference
with a person's freedom by an officer of the law or by a
citizen representing such authority. For the purposes of
this paper, however, ”arrest" shall be termed the process
by which a person is taken to the police station. This
process commences at that period where a suspect is informed
by an officer of the law that he is to be detained and con-
cludes with either the charging decision by the prosecutor
or the release of the suspect without any appearance before
a magistrate. It may not necessarily include the separate
booking process of fingerprinting, photographing and record-

ing of the arrest.

V. ORGANIZATION OF THE REMAINDER OF THE STUDY

The remainder of this thesis is divided into four

cI'lapters. They are as follows.

 

Chapter II will deal with a review of the literature.
It will constitute an analysis of the numerous books, periodi—
cals, and journals pertaining to discretion in law enforce-
ment.

Chapter III will deal with the charting of a random
sampling or what will be termed "typical police incidents.”
The object here is to indicate the points at which various
factors appear to influence discretion at the scene of a
radio call. This is based on a knowledge gained from the
literature as well as logical deduction in each situation.

Chapter IV will present the construction of the model
research instrument. This will be based on the influencing
factors derived in Chapters II and III.

Chapter V will summarize the study in an effort to
compare the literature, the field studies, and the model, in
order to support the derived research instrument. Applica—

tions of the research instrument will be suggested.

CHAPTER II
REVIEW OF THE LITERATURE
I. A DISCUSSION ON DISCRETION

Definitions

In the introductory chapter, it was noted that dis-
cretion.is the power or the authority of individual judgment.
This judgment was then linked to the decision-making process.
Yet, as the term ”discretion" is really at the heart of this
research, much elaboration on its meaning is necessary in
order to comprehend the importance and implications of

“discretion" in law enforcement.

 

Wayne LaFave, in his study Arrest: Th§_Decision.pg
Take 3 Suspect Into Custody,l also linked discretion, the
decision-making process, and personal judgment, based on
Webster's New International Dictionary:

The ability to make decisions which represent a
responsible choice and for which an understanding
of what is lawful, right, or wise may be pre-
supposed. . . . The latitude of decision within
Which a court or judge decides questions arising

in a particular case, not expressly controlled by
fixed rules of law according to the judgment of the
court or judge.

1Wayne R. LaFave, Arrest: The Decision tg_Take a

Esllspect Into Custody (Boston: Little Brown & Company, I965),
£>-. 63.

 

 

2Webster's New International Dictionary (third
ed ition, 1961), p. 647.

11

Judge Breitel relates this dictionary—judicial format

to law enforcement, when he described discretion as:
The power to consider all the circumstances and
then determine whether any legal action is to be
taken. And if so takenf3 of what kind and degree,
and to What conclusion.

The nature of discretion it must be noted has changed
from mere "ability" to a "power." If we are dealing with a
power, that is, a right of command, then its exact nature
must be justified, as well as the official to whom its
exercise is allocated. This is one major issue in the role
of discretion in law enforcement.

Discretion is an authority conferred by law to act
in certain conditions or situations in accordance
with an official's or an official agency's own
considered judgment and conscience. . . . It is
objected to strongly by those who urge the defini-
tion of law as a body of rules admitting only of
genuine interpretation and application within
their expressed terms.

It must be realized, however, that the nature of our
society, indeed the structure of life today, is too complex,
too variable, to allow for everything to be reduced to the
rules surrounding the regime of justice. Thus Pound

continued:

It is an idea of morals, belonging to the twilight
zone between law and morals.

 

V‘ v a —'

3Wayne R. LaFave, "The Police and NOn—Enforcement of
the Law," Wisconsin Law Review, vol. 1962, p. 105.

4Roscoe Pound, "Discretion DiSpensation and Miti-
gation: The Problem of the Individual Special Case, " New
32:1;5 University Law Review, val. 35 (1960), p. 926.

SIbid.

12

He postulated four categories of discretion. There
are those cases governed by the literal exactness of the law,
some which must be reasoned from authoritative principles
using authoritative techniques and ideals, those decided
by judicial discretion based on "the analogy of principle
of law," and last, cases left to the personal discretion of
the judge or official without being based on Specifically
organized guides to decision making.6

The use of discretion has come to be based on princi-
ples of law with the intent of balancing both general security
and individual freedom. This is perhaps one of the most
difficult problems in the science of law. It is crucial in
the relationship of the community to responsible law enforce-

ment.

The Role of Discretion in Law Enforcement

 

From the commission of a crime until the eventual
release of the convicted offender, there are many stages of
judicative pronouncements and certainly discretion of one
sort or another is present at each stage. Yet one of the
most significant features in current criminal justice adminis-
tration is the great amount of discretion which is exercised
by the police.

Thomas R. Brooks in an article, ”Necessary Force--

or Police Brutality,' published in the New York Times Magazine

 

 

6Ibid., pp. 929—30; Wayne R. LaFave, "The Police

and Non-Enforcement of the Law," Wisconsin Law Review, Vol.
1962, p. 105.

 

13

(page 68) on December 5, 1965, stated:
Police power is an awesome thing; the determin-
ation as to how it is to be used ought not to be
a police matter. .

It must be determined then whether the discretion
which is utilized has been properly delegated to the police:
or are they exercising judgments in areas where they should
have no authority?

In Great Britain, Canada, and the United States, the
policeman possesses few powers not enjoyed by the ordinary
citizen. Indeed, utmost discretion must be exercised by the
police to avoid over-stepping the limited powers which they
possess. Yet through growth and development, somewhat less
judicial and political control has been exercised over law
enforcement bodies. In Britain, the original judicial pro-
nouncements on which the American agencies are based gave
definite assertion of the independent nature of the police
officer's role. It is this claim, this measure of indepen-
dence from outside control, that has far reaching implications;
and it is this same independence that causes a reaction as
voiced by Thomas Brooks.7

Should the police under any circumstances be entitled

to exercise discretion, and if so, what controls have been

established to balance the system?

 

7Royal Commission Report on the Police, Final Report
(Her Majesty's Stationary Office, London, May, 1962), CMND.
1728; Jerome H. Skolnick, Justice Without Trial (New York:
John H. Wiley & Sons, Inc., 1966), p. 71.

14

In theory, the police have no choice as to which laws
to enforce. Yet discretion is essential to the police role
if they are to fulfill their obligations. The decision to
invoke the criminal process, to seek an arrest warrant, to
take immediate custody, to arrest for prosecution or other
purposes, or to use force, can all only be made by the
trained professional judgment of the individual officer as
he interprets the situation.8

Police decisions not to enforce the law rarely be-
come known to the public, and thus these decisions are rarely
challenged by the courts, the legislature, or the community.
In this sense, discretion does replace the rule of law and
to that extent it becomes arbitrary. Yet this discretionary
responsibility must be reconciled with the discipline and
the orders which the constable is also subject to. If he
were too closely controlled, however, his impartial status
would be definitely affected. In terms of these factors,
certainly the independent status of the police officer is
appropriate to his functions.9

"Arrest,” one of the most vital of police powers, is

literally the taking into custody of a person, for the

 

8Nfichae1 Banton, The Policeman in_the Community
(London: Tavistock Publications, 1964) pp. 45, 63; Wayne
LaFave, Arrest, Op. Qit., pp. 8-12; Nelson A. Watson (ed.),
Egflice and the Changing Community (Washington: International

Association of Chiefs of Police, 1965).

9Wayne LaFave, Arrest, Loc. Cit.; Charles 0. Breitel,
"Controls in Criminal Law Enforcement," University 9f Chicago
IENN Review, V01. 27, No. 3 (Spring, 1960), p. 427; Royal
Conmdssion Report on the Police, 9p..gi§., pp. 24-25.

 

 

15

of prosecution. More broadly, it has been termed to be
any interference with a person's freedom. Arrest results in
the detention of the individual, usually a search of his
person, sometimes the use of force, and often damage to his
reputation. Therefore it is important to analyze who makes
the decision to arrest, how it is made, and how it is con-
trolled to insure conformity with the objectives of justice.10
The discretionary judgment to arrest or not is made.
in a wide variety of circumstances and thus different con-
siderations may be raised with each case. While it is
assumed that the decision to arrest is made by the police
officer, and the decision to charge by the prosecutor, LaFave
points out that the suspected offender may often be released
by a supervisory police officer. In View of these variable
procedures, it must be realized that where discretion is
sanctioned, it becomes known to violator and officer alike.
This may create an atmosphere of bargaining wherein the
officer's power takes on more personal overtones. Thus
Spencer D. Parratt pointed out that it is one thing to ignore
a law and quite another to publicly acknowledge that it is
being ignored.11

Several facts then have become apparent. First it

 

10Wayne LaFave, Arrest, Op. Cit., pp. 3, 4.

llSanford H. Kadish, "Legal Norm and Discretion in
the Police and Sentencing Processes,” Harvard Law Review,
V01. 75 (1962), p. 908; Wayne LaFave, Arrest, Op. Cit., p. 6;
Spencer D. Parratt, ”How Effective is a Police Department,"
Annals 9; Political Science, V61. 199 (September, 1938),
p. 144.

16

has not proved possible to draft a criminal code which
unambiguously encompasses all criminal conduct. Law itself
juSt cannot keep pace with the changing conditions of our
society. Second, the law enforcement agencies do not have
the resources to enforce all the laws effectively. Somehow
the boundaries of enforcement must be defined. Last, the.
circumstances of each and every individual situation vary

~in such a way that justice will not be attained by the
enforcement of mere rules. It would seem that the presence
and expansion of discretion is both a desirable and necessary

inevitability.12‘

Implications

Herman Goldstein accurately summarized the exercise
of discretion. Its existence implies that there is a variety
of factors which causes the police to decide how much of an
effort will be made to enforce certain laws. Even in those
situations when there has been an offense, and the offender
and the evidence are at hand, the officer may decide not
to arrest. Yet the goals of justice may still be attained.

Discretion then:

. . . tends to portray the officers as something other
than automatons--as reasonable men whose judgment is
essential in determining whether or not to invoke the
criminal process.

 

12Michael Banton, Op. Cit., pp. 129-130; Charles 0.
Breitel, Op, Cit., p. 427.

l3Herman Goldstein, ”Police Discretion: The Ideal
VErsus the Real," Public Administration Review, V01. 23
(1963), pp. 140-141.

17

The police forces, however, have not acknowledged
the existence of discretion and thus they carry the burden
of an impossible problem. They attempt to maintain an image
of full enforcement--officers take broad oaths of enforce—
ment--and to maintain the integrity of the force they attempt
enforcement on a black or white basis. Yet this denial of
discretion has given support to the citizens who continue
to maintain that the job of the police officer is a simple
one, that it requires little judgment, and that it is not

worthy of professional status.14

II. CONTROLS ON POLICE DISCRETION

It was noted that police discretion involved ability,
power, experience, and authority aimed at enforcement of a
legal code of rules. Yet this exercise of discretion has
been given boundaries beyond mere interpretation of the
letter of the law. It is the nature of these restrictions
and their effectiveness in determining the behavior of the
individual police officer that is the foundation of this
research.

While officers enjoy a great degree of independence
in the exercise of their powers, the police are certainly
not completely free to investigate crime in any manner they
please, even when their actions are lawful. In fact, the
1962 Royal Commission on the police conceded that the extreme

view of police independence, as advanced by many witnesses,

 

l4Ibid., pp. 143-148.

18

could not be legally justified. The Commission uncovered a
highly developed system of practical administration which
attempted to offset defficiencies in the law. In this
sense, the Commission redirected the problem of controlling
the police to that of controlling the chief constables.

The chief constables, however, were not ordinarily
brought to account for their administration, although this
was primarily the concern of the local watch committee-—

"15 If these local authorities are

the "police authority.
liable for police action, Geoffrey Marshall maintained,
then it would entitle them to demand a full measure of con-
trol over the arrest and prosecution of offenders.16

The Royal Commission Report's conclusions emphasized,
however, that there should be no change in the legal status
of the police--they were to retain their present "indepen-
dence”--and other means of control were suggested. Chief
constables should be subject to more effective supervision.
They should be required to submit annual reports. The

"police authority" would be responsible for the appointment

of chiefs, subject to the approval of the Secretary of State.

 

15"Police authority" here refers to the council, the

watch committee, which, representing the township, established
and maintained the local police unit.

16Fisher v. Oldham Corporation (1930 2 K.B. 364),
wherein a man named Fisher was arrested on a warrant for
obtaining money under false pretenses. It was found that he
was the wrong man and not the one named in the warrant. He
sued Oldham Corporation claiming that the officers were
acting through the authority of the watch committee of
Oldham. See Geoffrey Marshall, Police and Government
(London: Methuen & Co., Ltd., 1965), p. 35.

 

19

Last, the "police authority" should be liable for the wrong—
ful acts of police officers.17
The undertone of this "quasi-governing" by the "police
authority” constitutes an attempt to introduce a degree of
formal accountability into the relations between the chief
constable and the central government. In Great Britain,
however, a more informal means of control is exercised through
the Inspectorate of the Police. The Inspectorate consti—
tutes an attempt to superimpose over the police service an
effective system of government inspection. The Inspectorate
determines the efficiency of the force with particular
emphasis on the dealings of the chief. They also verify the
adequacy of provisions made by the local watch committee,
and attempt to make available to all forces the latest infor-
mation on research and up—to-date techniques, as well as
endeavoring to promote collaboration between forces. The
inspectors, all recruited based on their personal police
service background, have no powers of direction over the
chief or the "police authority." Their results are achieved
solely through good will and persuasion, especially in view
of the federal police subsidies. In this way, the incom-
patible objectives of an impartial police force immune from
outside influence, and at the same time provided with a form

of external control, are at least somewhat balanced.18

 

17Royal Commission Report on the Police, Op, Cit., 34;

Sandford H. Kadish, Op, Cit., p. 35: Geoffrey Marshall, Op. Cit.,
pp. 74-77.

18Royal Commission on the Police, Op, Cit., pp. 77-80.

 

20

Legislative and Legal Controls

 

As the problem of maintaining order becomes acute,
societies increasingly adopt more formal controls. A delinea-
tion of the role of discretion then within this framework
becomes necessary.

/ The law provides a skeletal guide for the exercise

of discretion--full enforcement. ”Full enforcement" implies
that every disturbing event which is reported to the police
is investigated, an effort is made to find the perpetrators,
and all the evidence collected is presented to the prosecutor
for his determination as to whether the full criminal process
will be invoked. Yet the police are subject to local govern—
ment control based on election, powers ofappointment, boards,
lay administrators, and many other political-structural
forces. These factors limit the police agency. It may not
be able to raise the money it requires. This leads to the
necessary development of priority schedules of enforcement.
This in turn will affect the discretion of the patrol
officers.19

Thus "police situational discretion" involves the

many restrictions upon action as well as that discretion not

to act. There are five major areas of control over this

 

19Jerome H. Skolnick, Op, Cit., p. 164; Michael

Banton, 9p, Cit., pp. 5, 130; Bruce Smith, Police Systems la
the United States (New York: Harper Brothers Publishers,
1949), pp. 138, 206—210; Roscoe Pound, QB! Cit., p. 927;

M. Glenn Abernathy, "Police Discretion and Equal Protection,"
South Carolina Law Quarterly, Vol. 14 (1962), p. 475.

 

21

discretion: intradepartmental supervision and discipline,
criminal and civil (quo warranto) action against officers,
as well as the basic constitutional rights to equal protection.
According to law, police officers may arrest when a
felony has actually been committed and the person arrested
committed the offense. The officer must have reasonable
grounds to believe that a felony has actually occurred and
that the suspect arrested committed it, even when he may not
have done so.‘ A misdemeanor must constitute a breach of the
peace and must be committed in the officer's presence, for
an arrest to be made without a warrant.20
LaFave maintained that this vital and responsible
decision as to the necessity of immediate custody should not
be made in the street, but at a later stage in the criminal
process. This is discussed by Roscoe Pound who emphasized
the very serious possible consequences of abuse in this
area. Thus there appears to be an inherent need for controls
over discretionary power.21
Out of these "discretionary" rather than "ministerial"
official actions has grown the tort accountability of the
public officer. Thus where official action or inaction involves

the exercise of discretion, the public officer is protected.

 

20Wayne LaFave, Arrest, Qp.‘git., pp. 153—164; Richard
C. Donnelly, "Police Authority and Practices," The Annals 9f
the American Academy pf Political and Social Science, Vol. 339
(January, 1962), pp. 93-94.

 

2J'Wayne LaFave, Arrest, 9p, Cit., p. 166; Wayne LaFave,
"The Police and Non-Enforcement of the Law,” 9p. Cit., p. 125.

22

The criminal courts have admitted that the police functions
of arrest and search and seizure involve the exercise of
discretion; and yet the normal "discretion-exception" is
not generally applied to police officers. The individual
policeofficer is in somewhat of a dilemma—-his broad liability
might even render him loathe to carry out his duties.22
It is admitted that this personal liability is a

necessary restraint upon the officer, and certainly without
it the patrolman might act without sufficient consideration
or caution. Yet a constable could not carry out his duties
effectively if on every occasion on which he had to act, he
had to consider the risks of action against him.

The Police Federation had devoted itself to secur-

ing that in practice police authorities should

stand behind the police by meeting the costs of

any proceedings brought against a constable in

respect of action taken in good faith in the in—
tended execution of his duty.

Freedom or Protection?

The dilemma of achieving social order while maintain—
ing strictly legal procedures is perhaps epitomized in the
issue of police discretion. The essential focus is whether
there should be a tightening or loosening of the restraints
on the decisional latitude of the police. How much discretion

should the police have, and how may this discretion be controlled?

 

22William C. Mathes and Robert T. Jones, "Toward a

Scope of Official Duty Immunity for Police Officers in
Damage Actions," Georgetown Law Journal, Vol. 53, pp. 889—896.

23Geoffrey Marshall, Op, Cit., p. 64.

23

/ Police decisions not to invoke the criminal process
(i.e., not to arrest or serve a summons) largely determine
the outer limits of discretion. Such decisions have been
termed "of low visibility," as they are seldom subject to
review by any authority. Yet such a review seems essential
to the functioning of the law in our system. Most of the
authors reviewed, as emphasized by Wayne LaFave and Joseph
Goldstein, have maintained that criminal law enforcement can
be substantially improved by introducing arrangements to
heighten the visibility of police discretion. The decisions
must be evaluated in the light of the total objectives of
the system of justice.24

Yet where can these controls be placed? To supervise
or judge such decisions, the individual must be aware of the
totality of the situation, and he must be legally qualified
to review and in effect make a ”charging decision." Either
this is accomplished by a judge or prosecutor--whose offices
are presently swamped with more responsibilities than can
reasonably be accomplished--or the decision must be made at
a higher level within the administration of the police.
Even then, the decision, though it may be removed from the
street, will be influenced by the same relevant knowledge,
social influence, past judicial decisions, the behavior of

the persons involved and the personability of the agent

 

24Jerome Skolnick, 9p, Cit., p. 71; David Stahl,
Fredrick B. Sussmann and Neil J. Bloomfield, The Community
and Racial Crisis (New York: Practicing Law Institute, 1966),
p. 543.

 

24

exercising discretion. Only this individual agent has the
key to the relative influence of these factors.

Once again then, all the devices for popular and
administrative control, the enactments of the legislatures,
the aims of governmental executives, and the hierarchies of
structural organization, all converge upon one focal point,
the policeman.

Basically the police organization is geared toward
the guarding of the freedom of individuals. This results in
restrictions, limits on their range of legitimate actions.
The acceptance of police controls in a society where there
is a strong aversion to individual authority rests on a
tenuous combination of trust and suspicion. Therefore:

. . . it cannot be too strongly emphasized that in
the situation of perennial and inevitable tension
between a police goal of absolute efficiency and

a philosopher's goal of absolute freedom, no easy
answers, no ready-made judgments, are permissible to

a public which desires a maximum of both freedom and
protection.

III. DISCRETIONARY ASPECTS OF COMMUNITY RELATIONS

The Social Disorganization

 

The focus of this paper has been limited to lower
class racially mixed areas. An examination of the conditions
within the boundaries of such areas reveals the stagnation,

the on-going social welfare to combat increasingly drastic

 

25Robert H. K. Walter, ”Comment: Some Proposals for
Minimizing the Law of Arrest," California Law Review, Vol. 39
(1951)! p. 119.

 

25

situations in education, unemployment, housing, and broken
families.

Explanations for the low living conditions vary,
generally being attributed to the nature of the inhabitants,
the Negro. The problem is magnified when one considers the
relatively high rents for low class housing paid in these
areas, as well as the accumulation of filth and debris
exemplified by the total lack of maintenance by either the
lessee or the owner of the building.

Yet according to Harlem residents, housing ranks
second to crime as the worst problem in the lives of these
people.26 Certainly then some explanations of the conditions
and the crime produced is necessary to demonstrate what the
patrolman in the street is facing each and every day.

Family life is extremely broken. Most of the women
work or take in roomers to try to feed their offspring.

There is usually a different man in the house every few
weeks, common law relationships being prevalent, and thus

no medium is available in which the children can grow up
respecting their parents.27

William J. Goode based the "uncompleted family unit"
on what he termed "role failure" of the members of the family.

The family is dissolved by the departure of one spouse.

 

26Insight: "Why Negroes Riot," The Gazette (Montreal),
Wednesday, September 7, 1966.

27

 

Based on observations by the author.

26

This eventually results in the "empty shell" in which indivi-
duals live together but have minimal communication and contact
with one another, failing especially to give emotional support
to one another in times of depression and crisis.28
Unemployment affects not only the income of the indi-
vidual, but also his self-respect--”the sense of being at
fault and somehow having failed.“29 Certainly if a man is
out of work long enough, he may eventually just stay home.
The wife usually is forced to find work, totally disrupting
the family unit. Meanwhile the male waits hopelessly to be
called back or to hear about work somewhere. He withdraws
from social contact except for association with other men
in the same predicament.3O
Thus the patrolman views the non-working inhabitants
who pass their time on the porches, idly consuming alcoholic
beverages, until the late afternoon or evening, when, with
the temperature slipping below 95 degrees, they feel slightly
more energetic. Yet it is still too hot to sleep, so they
wander the streets all night long.31
Leroy G. Schultz tries to explain ”Why the Negro

Carries Weapons."32 The rural southern Negro expresses

 

28Robert K. Merton and Robert A. Nisbet, Contemporary

Social Problems (New York: Harcourt Brace and World, 1961),
p. 390.

 

291bid., p. 506. 30Ibid.

31Based on observations by the author.

32Leroy G. Schultz, "Why the Negro Carries Weapons,"
Journal pf_Criminal Law, Criminology, and Police Science,
V61. 53 (1962), P. 486.

27

aggression more freely and has less respect for life and law.
Newly arrived, he does not lose his southern heritage immediate—
ly. Close living generates the tensions which result in
aggressive acts and counter-aggression and it is not long
before the new migrant finds the city as a somewhat dangerous
place to live.

The desire for self—protection becomes for the officer
a criminal-social deviation. The officer hears typical
explanations again and again:

-- the offender had just purchased or found the

weapon a short time before he was arrested:

-- the offender didn't know how the weapon got on

his person or in his car;

-— the offender needed a weapon for protection.

Schultz, however, categorized the real reasons in a
brief study. His results are reflected in the figure below.
Thus Schultz concluded that, based on the actual daily
experiences of police officers, the Negro in the lower socio-
economic group is traditionally viewed as a weapons carrier.

LaFave pointed out that the victims of these assaults
rarely wish to have the offender prosecuted. In this sense,
the attitude of the victim becomes an important factor in the
exercise of police discretion--the victim controls the arrest
decision even in serious offenses.33

This applies as well, of course, in more minor fracases

such as domestic quarrels where pressure is put on the police

 

33Wayne LaFave, Arrest, Op. Cit., p. 112.

 

28

FIGURE I

SCHULTZ' FINDINGS AS TO THE NEGRO WEAPONS CARRIER*

 

Purpose Percentage
Use in employment 2%
To commit a property crime 4%
To use in a gang fight 6%
To force the payment of a debt 8%
To commit a crime against a person 10%
Anticipate attack 70%

*Leroy G. Schultz, "Why the Negro Carries Weapons,"

Journal 9; Criminal Law, Criminology, and Police Science,

Vol.

 

 

 

53 (1962), p. 486.

29

by the wife to arrest the husband. Yet as the husband is
her only means of support, she is unlikely to appear as a
complainant in court some twenty—four hours later and he
will be released. Thus the police officer would prefer not
to arrest, and this is justified by his lack of legal authority;
no misdemeanor having occurred in his presence. The patrol-
man merely advises the complainant to swear out a warrant at
the local prosecutor's office.34 (One officer remarked to
the author that in his estimation, maybe 2 percent of these
complainants actually swear out such a warrant.)

This deviant behavior in the community, while it
is simultaneously deviant from the law, is in conformance
with the norms of the local area. In this sense, Negro crime
can be differentiated by type, rate, and location. It
reflects a lower economic class pattern of violence. Yet
this same Negro is sensitive, he wishes to avoid being taken
advantage of, and thus will act on the basis of inferences
of the behavior of others towards him. This leads to chronic
feelings of mistrust and suspicion, heightened by the problems
of urban—social adjustment, and this for the Negro is a
lack of legal protection, especially when an officer merely
states that he cannot take action.35

The officers on the other hand have learned that

serious assaults are merely the acceptable means of settling

 

34Ibid., p. 21.

35Robert K. Merton and Robert A. Nisbet, 9p. Cit.,

p. 731; Leroy G. Schultz, Op. Cit., pp. 480-481.

 

3O

disputes among these Negro classes. The ”fight" conforms
to their stereotyped image of the high crime rate area.
When both parties involved are Negro, there is no immediate
danger to the public; it is only a private argument and thus
the criminal process may not even be invoked. More often
than not, if the process is invoked, the prosecution and
courts will dismiss the action or greatly reduce the charge,
especially when there is the usual lack of cooperation from
the victim.36
Often the officer's only solution seems to lie in an
attempt to discipline the situation himself. This rough
jpolice action has only added to the resentment, and helped
to turn the image of the police into enemies or punishers--
rather than to emphasize their role as defenders of law and
order.37
The police have become the family doctor, lawyer,
amd clergyman for the poor and uneducated people of these
communities; the police are the first port of call in time
of trouble. Yet there exists a massive breakdown in communi—
cation between the public which must have protection and

assistance, and one of the only agents in a real position to

view this disorganization, the police. The officer musc

 

6Joseph Goldstein, "Police Discretion Not to Invoke
the Criminal Process: Low Visibility Decisions in the
Administration of Justice,” Yale Law Journal, Vol. 69
(March, 1960), p. 575; J Skolnick, Op, £12., p. 218.

37

 

David Stahl and Fredrick B. Sussman, Op. Cit.,

 

p. 45.

31

enforce relatively unpopular laws within a defiant community.
He comes to regard the public as his enemy, and yet he must
maintain control. Therefore the officer may attempt to
coerce respect from the public using almost any legitimate
means to complete the "good" arrest. This "wall,” invisible
to both sides due to the very different frames of reference,
has thwarted any accomplishment and any communication between

the police officer and the man on that street corner.38

The Role of Law Enforcement

 

It should be noted that the role of patrolman has
become that of a "peace officer" rather than merely a law
officer. The degree and method to which laws are enforced
will necessarily vary with each neighborhood and community.
Each policeman must determine the standard to be set in his
area of responsibility. Bruce Smith emphasized that while
"immediate superiors may be able to impress upon him some
of the lessons of experience, for the most part, such ex—
perience must be his own."39 Any action which the police
officer takes is the result of the influence of the various
forces upon him. He is, then, in Smith's terms ". . . a
policy—forming police administrator in miniature, who

operates beyond the scope of the usual devices for control."40

 

38Nelson A. Watson, Op. Cit., p. 1; Jerome Skolnick,

_Qp. Cit., p. 166; Elaine Cumming, Ian Cumming and Laura Edell,
"Policeman as Philosopher, Guide and Friend,” Social Problems,
V61. 12, No. 3 (1965), P. 285.

 

39Bruce Smith, Op. Cit., p. 21. 40Ibid.

32

In a very real sense, the officer is placed in a buf—
fer position between the disadvantaged groups, their resent—
ments and hostilities, and the "established" community. The
only possible result of the use of force to control any
social outbreak is community and group tension. Any officer
then who takes a strictly legalistic view of his duties,
prevents himself from attaining the personal relationship
status necessary to enable his serving as an effective social
mediator.

. . . If he is too detached from the community he no

longer has the understanding of the people's feelings
which he needs if he is to exercise his discretion

effectively. . . . If he is too detached, the people
will resent his implied claim to be their moral
superior.

This argument clearly emphasizes the need for police
discretion at the patrol levels of the organization.

On the other hand, if he develops close ties with
the local people, he may well find himself unable to act
against them with the necessary vigor as prescribed by his
foundation, the law. In this sense, the police officer is
in a very precarious position, with two very contradictory
objectives. In most cases, the only solution is to place a
definite stress on good judgment in handling the people.
This.”good judgment" results in a relationship as variable
as the officer's experience and temperament, and as fragile
as the people whom he encounters, and about whom he has

only the most meager of information.42

 

41Michael Banton, Op, Cit., p. 188.

421bid., pp. 108-188

33

In an article, "The Policeman as Philosopher, Guide,
and Friend,"43 the authors draw an interesting analogy among
the various professions which deal with the criminal and
para-criminal elements. They point out that correction
officials, doctors, and parole officers, handle criminals in
a dual way. That is, they attempt to control behavior, but
also support the individual--they are on "his side." All
such agents then operated based on either a "supportive" or
"controlling" methodology. While it is impossible to perform
acts of support and control simultaneously, support without
control is over-protection and invites passivity and depen—
dency, while control Without support is tyranny and invites
rebellion.

The role of the policeman is, however, one of control;
keeping the law from being broken, and apprehending those who
break the law. In controlling one member of society, the
officer provides indirect support to another. (One example
is the apprehension of a wife-beating husband, in which the
man is arrested which controls his behavior and supports the
wife's cause.) The officer's role also encompasses the
giving of help directly. When he does this, the balance
between support and control has shifted. He has, the authors
maintain, at this point changed from a professional to an
amateur, the implication being that the officer is not

equipped for ”social work."44

 

43Elaine Cumming, Ian Cumming and Laura Edell,

Op, Cit.

44Ibid., p. 45.

 

34

The police have a pivotal role as governmental and
community agents, both in the handling of racial crisis
manifestations, and in the all-important day-to—day relations
with Negro citizens. Banton and LaFave illustrate for
example several categories of the arrest decision; those to
avoid a strain on police resources, charges to maintain
reSpect for the police or to maintain a public image, arrests
to punish criminals who may have avoided convictions on more
serious charges, and arrests to aid in the investigation of
other offenses. Yet persons living in high tension areas,
who are illegally arrested, are suspicious of the police,
and this will tend to influence their conduct in their daily
activities.45

One often hears the charge of Negro over—policing or
harassment. Yet often this is calculated non—enforcement,
justified on grounds that a lesser morality exists, it being
therefore unwise to apply general legal standards to these
Negroes. For example, Negroes are rarely arrested for
bigamy, cohabitation and often not even for felonious assault.
Yet these decisions not to invoke the process may well be
just as detrimental to the community as decisions to use
improper methods in discovery and proceedings against the
guilty. Thus in a sense, those who have been arrested and
charged have definitely violated the law, and they are being

dealt with consistently, even if other persons guilty of

 

45Michael Banton, 9p, Cit., p. 143; Wayne LaFave,
The Police and Non—Enforcement, Op. Cit., p. 112.

 

35

criminal conduct are not proceeded against.46

In summary, the differences in cultural and environ—
mental conditions generates much confusion within the police
role. The projection of a standard of values becomes dif-
ficult and this results in pressures upon law enforcement
agencies stemming from a continued threat of rioting within
the Negro ghettoes. This violence is placing a heavy strain
on law enforcement agencies, much of that burden being ab-
sorbed by the officers who must patrol that ghetto. These
men have been left with little choice but to police in such
a way as to attempt to control the numerous criminal elements
and the nature of this task requires the vast exercise of

police discretion.47

IV. POLICE METHODS AND DISCRETIONARY NON-ENFORCEMENT:
DUALITY IN THE HANDLING OF DEVIANTS

Arrests and Non—Enforcement

 

In the introduction to this research, “authority"
was termed "the right to command: . . . a power and responsi—
bility to control a situation by virtue of the office vested
in the man." This "authority" gives the officer the duty to
enforce the law. One phase of enforcement involves the taking

and keeping in custody under rules of law a person who has

 

6Jerome Hall, "Police and Law in a Democratic Society,”
Indiana Law Journal, Vol. 28 (Winter, 1953), p. 159.

47News Roundup: "Cops on the Spot: Racial Violence
Taxes Police Anew, But They Head Off Serious Riots," The Wall
Street Journal, V01. CLXVIII, No. 43, Friday, September 2,
1966; D. Stahl and F B. Sussman, Op. Cit., p. 107; Spencer
D. Parratt, Op, 213., p. 153.

 

36

committed a crime or breach of the peace. This is termed the
officer's power of arrest. Arrest is confined by law to
situations where the officer has reasonable cause to believe
a felony has been committed and that the person he has
arrested is the offender, or where a misdemeanor is committed
by some person in his presence.

This simple outline of the "arrest" however has
become an issue of definition. For example, it is obvious
that an officer may ask an individual a question and this
act will not be termed an arrest provided that the individual
is not confined or restrained against his will. In fact, it
is a.common practice to stop and question suspects when there
are insufficient grounds for arrest. This is a means of
crime prevention and detection. Yet is the act of stopping
and frisking (for the officer's protection) to be considered
an arrest, in view of the necessary physical contact between
the officer and the subject? It must be realized that if we
term this an arrest, as we can infer that a form of restraint
is involved, many field interrogations are arrests, although
immediate release usually follows.48

The decision to take a suspect into custody may be
influenced by many factors in addition to the criminal act at
hand. The officers may be concerned with a search and seizure,

which legally requires a prior arrest; or they may wish to

 

48Frank S. Remington, "The Law Relating to On-the—Street

Detention, Questioning and Frisking," Journal pf_Criminal
Law, Criminology and Police Science, V01. 51 (1960), pp. 386-389);
Edward L. Barratt, Op, Cit., p. 32.

37

avoid disclosure of a continuing investigation, or wish-to
safeguard evidence or witnesses. In these cases, custody of
the suspect will be deemed necessary.49
LaFave also indicates those factors about the suspect
himself which bear on the arrest situation. Is he likely to
appear in court? This depends on the nature of the offense,
the residence, and the character of the individual and the
likelihood of his conviction. Is it in the interest of the
individual to be taken into immediate custody? For example,
does it cause unnecessary hardship for the individual or his
family; is there a chance of possible harm coming to the
suSpect or a possibility of suicide, and is he able to main-
tain himself?50
There are, however, many cases in which the police
should arrest persons and they delay. The arrest itself
might be inappropriate or would be ineffective. Arrest
might cause harm to the offender or victim which outweighs
the risks from inaction, or an arrest might cause a loss of
public respect and support. Oftentimes the failure to arrest
could benefit the law enforcement system, such as when an

offender could be utilized as an informer.51

 

49Wayne LaFave, Arrest, Op. Cit., pp. 68, 144-152.

 

SOIbid., p. 177-202.

51lbid., p. 125-143 and Sanford H. Kadish, 9p..git.,
p. 907. Kadish also notes cases of arrest to check a suspect's
identity, to check physical evidence, and arrests on mere
descriptions.

38

In a very definite sense, this non-arrest situation
is inconsistent with the rule of law. Some of the most dif-
ficult caseseurzthose in which the policeman declines to
make an arrest of an apparently guilty suspect on the grounds
that it is better for him that the criminal process not be
invdked. Yet Kadish emphasizes that this creates inequality
in official action, it leads to arbitrariness, discrimination

52 very definitely there are considerable dif—

and abuse.
ferences then, between the degrees of danger posed in such
arrests, and the desirability and feasibility of eliminating
such judgments. On the other hand, the officer would maintain
that there is a need for mediation between the laws and human
values. This need then has created the exercise of police
discretion.53
The officer's role then may be focused upon the

sensitive use of a discretion to enforce the law by determining
whether a particular violator should be handled by a warning or

an arrest. Yet many authors have found fault with this pre—

sent use of discretion. They, like Edward L. Barrett, Jr.,

 

52Jerome Skolnick, Qp.flgi§., p. 234. It is pointed
out that police discretion is "hidden" in that the officer
makes decisions in direct interaction with the suspect.
For example, numerous tactics might be employed in a mis-
demeanor arrest without a warrant. (See Wayne LaFave,
Arrest, Qp.lgi§., p. 28-30.) The officer might (1) insure
cooperation of the complainant to preclude a possible false
arrest action; (2) encourage another offense to create the
basis for a lawful arrest; (3) persuade the offender to
voluntarily remain in custody while a warrant is sought, and
(4) justify the arrest as a felony.

53Sanford H. Kadish, 9p, Cit., p. 909.

39

in his "Police Practices and the Law,"54 point out that some
thirty-four percent of all arrests, as in his survey of two
California cities, resulted in release. Seventy—five per-
cent of those were due to insufficient evidence. Another
twenty-five percent of those released had confessed to the
offense but the cases involved bad checks or stolen auto-
mobiles, wherein the victim refused to prosecute. Either
the police are completely maintaining their authority or the
system itself is totally defective.

It becomes necessary then to determine the pressures
within and surrounding the department, which force the police
to invdke the criminal process selectively. Under the present
law, if police brought all arrested persons promptly before a
magistrate, the courts would be literallyswamped. Further
it is by no means clear that the liberties of the ordinary
citizen would be enhanced as a result.

Yet Joseph Goldstein insists that the police have ppp
been delegated discretion not to invoke the criminal process
within what he terms the area of "full enforcement."55 He

notes the lack of enforcement of narcotics laws against

informers, the lack of enforcement in felonious assaults when

 

54Edward L. Barrett, Jr., "Police Practices and the

Law," California Law Review, Vol. 50, No. 1 (1962), pp. 38-39.
55Joseph Goldstein, Op, Cit., p. 556. An area of no

enforcement lies between the perimeter of total enforcement

and the outer limits of full enforcement. In this no enforce-

ment area, the police have no authority to invoke the criminal

process. Within the area of full enforcement, the police

have not been delegated discretion not to invoke the process.

40

the victim will not prosecute, and the decisions to harass
rather than prosecute the numbers racketeers. Each of these
decisions is made even though a crime has been committed
and the offender is known.
It must be realized that both Banton and LaFave have
emphasized that there are many cases when there is ambiguity
in legislative intent, where prosecution would achieve nothing
and might even lose the police respect, or where it would
entail punishment disproportionate to the particular character-
istics of the offense. Often too, as in Goldstein's cases
above, the conduct is common in the offender's section of
the population, and in these cases oftentimes a warning is
insufficient, or as in the case of reliable informers, they
may not deserve prosecution. It must also be realized that
where minor offenses such as drinking in public are involved,
under-enforcement is the general rule.56
Joseph Goldstein defines a system of full enforcement.
Herein the police investigate every disturbing event which
may be a violation of the law and which is reported to or
observed by them. Following a determination of a criminal
violation and a discovery of the perpetrators, all the
collected information is presented to the prosecutor for
his determination of whether or not to invoke the criminal
process. Certainly the effects of such a program must be

considered. Will such enforcement place the legislature in

 

56Edward L. Barrett, Op. Cit., p. 46; Joseph
Goldstein, Op, Cit., pp. 554—561.

41

a more advantageous position to evaluate present laws? In
narcotics for example, what would be the effects of full
enforcement? Would prices be increased to the user and
would this in turn cause an increase in the frequency of
crimes committed by him; or would full enforcement reduce
the number of users and therefore the frequency of connected
crimes?57
Basically an officer can deliver equal justice to
the extent that he has the situation under control. The
police could perhaps turn over all the evidence to a prose-
cutor for evaluation, as suggested by Goldstein and others.
Then if a complaint were issued, all parties would appear
before a judge and those "victims" who might not desire
prosecution, would be themselves charged with perjury if they
changed the facts of the incident. In this way, the role
of each agency would be more clearly delineated and inte-
grated. While much of the burden is then removed from the
police, it must be recognized that the exercise of discretion
will not be completely eliminated.58
The prosecutor's decision must be in strict conformance
with the law. In this sense, the circumstances surrounding
such a "charging decision" are very different from those at

the time of arrest. It is at this time that a test of

verifiable probable cause could be established. In effect,

 

57Joseph Goldstein, Op, Cit., pp. 559-573.

 

581bid.. pp. 577-586.

42

Goldstein has attempted to raise the visibility of the arrest
decision. "Without this visibility" he maintains, "the
likelihood of compliance (with the rules of law) is greatly
reduced."59
This author, however, would still attempt to uncover
a means of determining whether the individual officer,
deSpite his own value system, can respond to officially
articulated community values, and thus be delegated broad
powers of discretion. In effect, we must give the officers
a stronger foundation for discretion by making them perceive

and evaluate the effect of their "street decisions” on local

programs in integration, school, housing, and employment.

Detention for Investigation

One of the most controversial areas in the adminis-
tration of criminal justice concerns the detention of suspects
for investigation by the police. The process involves a
request to the suspect to come voluntarily or at times taking
the person to the station, where he may be held, but is not
booked and therefore technically not "arrested."60

Usually a supervisor will decide whether to hold the

person for investigation, for a warrant, or to release him,

based on a short interrogation. If booked, the charge may

 

591bid., pp. 552, 556-557; Wayne LaFave, "Detention
for Investigation by Police - An Analysis of Current Practices,"
Washington Universitpraw Quarterly (1962), pp. 340-349.

60According to the definition of arrest in the
introductory chapter.

43

read "suSpicion of , which is at the present time
illegal. Generally speaking, persons held for investigation
cannot obtain their immediate release.

The police maintain that detention for investigation
is required to obtain sufficient evidence for conviction,
to investigate other offenses or other offenders. Usually
a short unrecorded detention will not be considered an
arrest. Yet the arrest of a person who is not known to have
committed a crime, simply to discover whether he might
possibly have done so some place, is totally unjustifiable
and unethical.62

For the officer on the beat, detention for questioning
constitutes an overwhelming proportion of his activity.
Without it, the number of cases successfully closed would
diminish considerably. Thus the officer may "bluff" the
suspect with the threat of charges, he may arrest on an
irrelevant charge or may even let the suspect go free
in an effort to insure cooperation.63

If we are to allow such detention, then the practice
must be reasonably regulated. Reasonable cause must exist
to justify any detention. The length of detention should be

determined by definite standards, and the practice should

be judicially authorized when reasonable grounds of necessity

 

lWayne LaFave, "Detention for Investigation by the
Police - An Analysis of Current Practices,” Op. Cit.,
pp. 331-3380

621bid., pp. 350—384.

63Robert H. K. Walter, Op. Cit., p. 106.

 

44

are shown. This would require a judicial official independent
of the law enforcement agency. In this way, then, detention
for investigation can become a legal and useful tool for

the officer, while the public safety is protected by its
redirected status to the minimum necessary for adequate law
enforcement. Certainly too, the practice can be of advantage
to the detained person——if innocent, he has a good prospect

of being released without any publicity or stigma. In each
instance, however, the task of detention must be aimed at
accomplishing the goals of law enforcement, while not over—

riding the reasonable freedom of the individual.64

Special Cases

 

There are several areas of both arrest and non-
enforcement which particularly allow for the exercise of
discretion by police officers. For example, intoxicated
persons are often arrested for their own safety, prostitutes
for health reasons, tranvestites as a means of control, and
gambling and liquor arrests as purely punitive measures.
Similarly, narcotics laws are not enforced against informers,
gamblers, and numbers men are often harassed and often no
arrests are made in clear felonious assaults because the
Victim and offender are "friends." It must be emphasized

that no legal provisions authorize the police to exercise

 

64Wayne LaFave, Arrest, 9p..gig., p. 26; Edward L.
Barrett, 9p, Qip., pp. 40-54; Joseph Goldstein, 9p. £13.,
p. 550; Wayne LaFave, "Detention for Investigation by the
Police - A Review of Current Practice," Op. Cit., p. 398.

45

such discretion. In this way, those laws of social control
place the police officer in many untenable positions.

One of these is his utilization of the criminal infor-
mant. Robert Earhart, in his analytical thesis on the use of
informers, points out that the officer becomes involved in
personal problems and may be compromised in his dealings
with the ”stool pigeon." Often the individual is permitted
to continue covertly his own criminal activities. In this
way, an officer may develop too much trust in the informant
and risk dealing with a "double-agent." Yet these positive
associations are most valuable to the beat officer who repre-
sents the law on his post.65

Considerable discretion is exercised in the protection
of an informer's identity. Such is the case of the police-
man who fails to report some crimes which he "knows" his
informer committed.

In Westville, informants are sometimes well paid
and are sometimes permitted to commit crimes. . . .
In general, burglary detectives allow informants
to commit narcotics offenses, while narcotics
agents allow informants to steal.66

As aptly illustrated, police relations with informers
are in the pattern of a bargain. The police maximize their

bargaining power by utilizing their official authority.67

 

65Robert S. Earhart, "A Critical Analysis of

Investigator-Criminal Informant Relationships in Law Enforce—

ment." Thesis, Michigan State University, School of Police
Administration (Summer, 1964), pp. 24-25.
66

Jerome Skolnick, Op, Cit., p. 126.

67Ibid., pp. 124-134.

46

In narcotics enforcement, however, informants use
their position for personal gain, and a determination between
the ideals of morality and the demands of efficiency is
placed before the officer. Their decisions here are illus—
trated in Joseph Goldstein's study wherein eighty percent
of those apprehended for narcotics violations during one year
were discharged. The detectives logically justify their
policy of trading full enforcement for information in that
it allows them to eventually reach a supplier, instead of
continuously locking up the "victim junkies."68

In dealing with prostitutes, a discretional use of
a quarantine medical check may give the officer his bargain-
ing power. In this sense, non-enforcement of the quarantine
requirement exemplifies how an officer may create a more
discretionary structure in which to operate.

It must be realized that this class of repeated
offenders must be properly "managed" by the officer. The
prostitute may carry a razor or a knife and thus constitute
a potential danger. If the policeman treats this arrest as
a game in which he has won, it usually will be a more easily
handled situation. If he degrades the girl, he will probably
have a rough time. In this sense though, vice control
officers feel that any breaks a particular defendant deserves
have already been meted out within the operational environ-

ment.69 In terms of informants, junkies, and prostitutes,

 

68Ibid., pp. 115—139.

69J. Skolnick, Op. Cit., p. 110. It is noted that
while greater discretion may lead to racial discrimination,
the race of a prostitute is not salient, while her demeanor is.

47

careful consideration must be directed at higher visibility
of these decisions. Yet with less discretion or high Visi-

bility are the police goals more likely to be attained?70

Juveniles and Discretion

 

The police officer in the course of his duties usually
encounters youthful offenders in one of three ways; he spots
a "wanted juvenile," he encounters the offender at or near
the scene of an incident, or he directly observes misbehavior
or definite "suSpicious circumstances." The central task
confronting the officer is to determine what action to take
against the offender.

Irving Pilavin and Scott Briar noted several influenc—
ing discretionary factors in dealing with juveniles.71 It
was noted that the extensive practice of discretion with
juveniles was sanctioned by departmental policy, based upon
what was best for the youngster. The officer had a choice
of five dispositions for any particular case: outright
release, release and submission to a field interrogation report,
official reprimand, citation to juvenile court, or arrest and
confinement in juvenile hall.

In the third, fourth and fifth dispositions, the

offender was taken to the station where he acquired a juvenile

police but not a court or criminal record.

 

7OIbid., pp. 99-197.

71Irving Pilavin and Scott Briar, "Police Encounters
With Juveniles,” American Journal pf Sociology, Vol. 70
(September, 1964), pp. 206-214.

 

 

48

The disposition decision by the officer usually has
a profound consequence for the youth. In this sense, a youth
is termed a delinquent only because someone in authority such
as the police officer has defined him as one. Thus any formal
arrest may act as a catalyst for the deviant behavior,
especially where there is a tendency to give Negro and simi-
lar youths severe dispositions due to their recurrent exposure
to the police. The officers, however, had to justify their
decisions based on the youth's character, though no explicit
rules have been laid down. These researchers found that in
minor violations, the violation played an insiginficant part
in the disposition decision. Rather personal characteristics,
prior record, and demeanor formed the basis of the officer's
judgments. To a very great degree then, the officers exer-
cise wide discretion in their dealings with juveniles,
reflecting a judicial rather than the perhaps intended

ministerial role of the police.72

Violence and the Use of Force

The use of physical force by officers of the law is
the most dramatic exhibition of what is involved in the vital
issue of police discretion. While the use of force is
functionally related to the collective objectives of the
police, they will as a group, based on their occupational
experience, justify its use. Undoubtedly some officers

either willfully or through a lack of knowledge abuse their

 

721bid.

49

authority at times. Yet there are many contradictory inter-
pretations and examples of the use of force. For example,
Brooks quotes Dr. Westley from "Violence and the Police:"
The individual who lacks reSpect for the police,
the "wise guy" who talks back in a disrespectful

way, deserves brutality.

On the other hand, a recent review by the Wall Street

 

Journal quoted an official of the NAACP who stated that

. . . officers moved smoothly to restore order
without shooting or throwing their weight around . . .74

in reference to recent riots in east New York section of
Brooklyn.

Officially the police organization tolerates only
that amount of force necessary to apprehend the alleged
criminal.75 The latitude allowed the officer involved is
not fixed by the rule books. In theory, the well-trained
policeman should be able to judge exactly how much force
is required. Yet because he is pre-occupied with potential
violence, the officer quickly learns to identify certain
kinds of people as symbolic assailants. In this sense, the
officer is required to implicate himself by necessarily

quickly responding to danger. Further in most cases, the

 

73Thomas R. Brooks, 9p. Cit., p. 63.

74News Roundup, "Cops On the Spot - Racial Violence
Taxes Police Anew, But They Head Off Serious Riots," The
Wall Street Journal, Vol. CLXVIII, No. 45 (September 2, 1966),
p. 1.

75Commonwealth vs. Duerr, 158 Super 484, 491-92, 45 A.
2d. 235, 238 (1946) wherein ”an officer endeavoring to make
an arrest in the case of a felony, may use all the force
necessary to overcome resistance, even to taking . . . a
life." (From Joseph Goldstein, pp, 933., p. 545.)

50

officers merely attempt to restrain an individual rather than
to combat with him. Yet the onlooker only perceives the four
struggling officers and the single fighting "victim.“76
It must be emphasized that in the split second or so

in which the officer has an opportunity for arrest, he must
at his peril go through a most problematic "balancing"
process to determine reasonable cause both for the arrest
and the degree of force necessary. Gerald Roblin justifying
homicide by police in his study, concludes:

. . . the officers exercised considerable restraint

in delaying the use of fatal force as long as they

did. . . . It was rationally utilized as a last

resort.77

The right of police to use force then must depend

upon its necessity (the particular circumstances), the law—
fulness of the arrest, and that the officer has reasonable
grounds to believe that the person is aware that the arrest
by a police officer is being attempted, and that he could
avoid physical violence by submitting to the authority of
the law. Certainly the officer here acts at his peril, and
the balance must in these circumstances be totally in favor

of the police agent. In support of this, the Royal Commission

on the Police suggested that the liability for acts committed

 

76Thomas R. Brooks, Qp, Cit., pp. 60-61; Jerome

Skolnick, Qp, Cit., pp. 45, 54.

77Gerald D. Roblin, "Justifiable Homicide by Police
Officers," Journal pf Criminal Law, Criminology and Police
Science, V01. 54, N0. 2, p. 227. (He noted that in 28 of
32 cases, the offenders were warned verbally, by the firing
of a shot in the air, or both.)

 

51

by officers in the execution of their duty, be placed upon
the police authority.78
I hate to think of the number of policemen who were

shot or stabbed to death simply because they didn't
use their gun fast enough.

- a Philadelphia Police Commander79

While every department is under criticism from the
community, and this forces the police to justify themselves
to the public, at the point where force is required, dis-
cretion of the officer must be spontaneously based on his

training and past experience.

V. DISCRETION AND THE LAW

Legislative and Political Controls
Affecting Discretion

 

 

There is almost no subject of greater importance
for the legislature to discuss than the police. Yet the
politicians have made the police officer an all-purpose
public servant, called upon to play wide variety of roles,
and assuming a number of imposing responsibilities.

Political manipulation and law enforcement, however,
always seem to have been closely associated in America.
There is little doubt that one of the greatest handicaps of

modern police administration is derived from partisan politics.

 

78Robert H. K. Walter, 9p, Cit., p. 106; Wayne LaFave,

Arrest, Qp. Cit., pp. 208-225; Royal Commission on the Police,
930 Cit-I p. 25.

79William M.2Kephart, Racial Factors and Urban Law
Enforcement (Philadelphia: University of Pennsylvania Press,
1957), P. 68.

 

52

Since popular control is exercised through the medium of the
political party, the private citizen who seeks to avoid the
effect of police restrictions naturally turns to political
representatives for aid.

In addition, appointed police chiefs, captains, and
lieutenants often invite and rely upon political assistance
at every turn. It has been stated that "if there were fewer
police in politics, there would be fewer politics in police."

In this sense then, the police often become a politi-
cal football, and they are particularly vulnerable to politi—
cal attack. Certainly a most forward step could be attained
if more departments could develop a professional public
relations attitude to at least build a foundation of support
and a shield of defense against the barrage of partisan
politics.81

Control of the police is a tremendous asset to a
spoils-minded political machine, for the service which the
police can render to that machine is legion. When the police
department is controlled by the machine, political influence
begins with the appointment of the recruit, rallies to save
him from discipline or discharge, helps him to secure un-
earned wages or disability benefits,grantsrun1unusual leaves

of absence, secures an unwarranted promotion for him, or

 

80Bruce Smith, Qp, Cit., p. 9.

81Ervis W. Lester, "Some Aspects of American Police
Problems," Journal pf Criminal Law, Criminology_and Police
Science, Vol. 40 (1950), p. 804.

 

 

8O

53

gives him a soft job. Politics in a force then will gradually
undermine the character of every rank and file policeman.82

In a very real sense, a proper balance must be
achieved. The police must be free from outside controlling
influences, and yet responsive to community goals in enforce-
ment. Thus Abernathy suggests regular but informal communi-
cation between the police and certain elected local policy-
making officials.83

Aside from the possible influences of political control
upon the officer's decision making, it must be determined
exactly what the law-makers have said about discretion.

What powers have the police been given?

Generally state legislatures have denied the police
authority to not invoke the criminal process. Yet a review
oftflmaapplicable statutes may leave the matter in doubt.84

Seldom, for example, are statutes phrased in permis-
sive terms: the police have a duty to enforce all the criminal
laws. The legislatures expect "full enforcement." Yet
"full enforcement" is physically impossible; it just is not
a realistic expectation. Consequently, the police have
developed the use of discretion in prosecution. This dis-

cretion has formed an area of great power and in time has

 

82Michael Banton, 9p. Cit., p. 92 (as quoted from
Municipal Police Administration, p. 10).

83M. Glenn Abernathy, Qp, Cit., p. 474.

84Wayne LaFave, "The Police and Non—Enforcement of

the Law,” Qp, Cit., p. 181.

54

expanded the great amount of legislation.85

In addition, the legislature frequently draws up
laws in broad terms so that the task of interpretation and
applicability evolves upon the police. They must determine
if a particular act falls within the legislation concerned.
(One example is the difficult interpretative differences
between social and organized gambling.) Some laws were
never intended by the enactors to be really enforced. If
all violators were arrested, the prosecutors and courts would
find it impossible to do their work, and the officers would
be in court so frequently that they could not properly per-
form their regular duties. Thus the officer in the street
is left with little choice but to settle many cases informally.86
It might be concluded that, if such an exercise of
discretion by the police is inherently dangerous, the situation
could be corrected by substantial legal reform. Each rele-
vant piece of legislation must be analyzed to demonstrate
not only that they reflect current attitudes, but that they
are unambiguous, that a Specific conduct is declared criminal,
and that such conduct alleviates administrative problems.
In this sense, a reappraisal of the responsibilities given
to law enforcement as well as greater police compliance with

the law, would be achieved. Our police would be given a role

 

85Wayne LaFave, Arrest, 9p. Cit., pp. 76-82; Joseph

Goldstein, 9p. Cit., p. 557; Ben Whitaker, The Police,
Penguin Books (1964), p. 170.

86Sanford H. Kadish, 9p. Cit., p. 909; Richard C.
Donnelly, 9p. Cit., p. 92.

 

 

55

in which the public and politician can aid rather than ob—
struct the law enforcement agencies.87
Although Joseph Goldstein recommends that the police
should not be granted discretion not to invoke the process,
it is felt that legislative action such as that recommended
above would sufficiently tighten the control of over-
discretionary law enforcement. "Full enforcement" of the
law could then be interpreted as the freedom of the citizen
from the possible arbitrary power of government. The retained
independence of the police coupled with the renewed cooper-
ation of the politician, could only lead to a new summit in

. . 88
successful police serv1ce.

The Imbalance Between Law and Discretion

The police agencies deserve greater guidance in the
discharge of their law enforcement responsibilities than is
afforded by the law today. Criminal law attempts to define
behavior which is deemed intolerably disturbing or destructive
to community values, and proscribed sanctions which the state
is authorized to impose upon persons convicted or suspected

of engaging in such conduct. The policeman's art then consists

 

87Wayne LaFave, Arrest, 9p, Cit., pp. 83-101; W.

LaFave and Frank 8. Remington, ”Controlling the Police:
The Judge's Role in Making and Reviewing Law Enforcement
Decisions," Michigan Law Review, Vol. 63 (April, 1965),
p. 1012: Ben Whitaker, 9p, Qip., p. 171.

88Nelson A. Watson, 9p..git., pp. 17-18; Joseph
Goldstein, 9p.‘gi§., p. 586; Sanford Kadish, 9p, £13., p. 909;
W. LaFave, "Detention for Investigation by the Police,
Qp, Qip., pp. 394-398; M. Abernathy, 9p. p;g,, p. 472.

56

in applying and enforcing a multitude of laws and ordinances
so that the greatest degree of protection will be secured.89
Yet the exercise of police discretion in this enforce—

ment has rarely been recognized because of what has been
termed the "low visibility" of such decisions, and because
of the limited means by which specific instances of inaction
may be challenged.

The whole nation of legality . . . involves a

distrust of excessively wide discretionary powers

and seeks to impose such limitations as are

consistent with public interest.
In this regard, it must be determined how wide a divergence
exists between the law in the books and the law in practice.

In attempting to apply the law, Roscoe Pound derived

four categories of cases: those which are governed by law
in the strictest sense, those decided by reasoning from author-
itative principles as starting points, using an authoritative
technique guided by authoritative ideals, those cases calling
for judicial discretion, that is, guided by an analogy of
principles of law as starting points for a reasonable deter—
mination, and last those cases left to the personal discretion
of the person authorized to act.91

Yettflmeprosecutor and the courts are rarely given

the full picture of police practices, nor are the police

 

89Joseph Goldstein, 9p, Cit., p. 544; Bruce Smith,

9p. Cit., p. 10; David Stahl and Fredrick B. Sussman, 9p. Cit.,
p. 394.

90B. M. Barker, "Police Discretion and the Principle
of Legality," The Criminal Law Quarterly, Vol. 8, No. 4 (July,
1966), p. 405.

91Roscoe Pound, Qp. Cit., pp. 929—930.

 

57

informed of the legal basis of judicial decisions. Thus
there is a breakdown in adequate communication between the
courts and the police.92 The courts only hear challenges
based on a narrow set of facts, while the police fail to
utilize recent and daily appellate court opinions. Often
these are merely filed and rarely are they even used in
training. This is certain to result in less selectivity on
the part of the police. Yet Jerome Hall emphasizes that:

. . . he (the policeman) is the living embodiment

of domestic law. If he conforms to that law, he

becomes the most important official in the entire

hierarchy able to facilitate the progressively
greater realization of democratic values.

Police Work Under the Law

 

The government bestows police authority on an
individual or group of persons to perform the governmental
duties of the office of police. This authority is general
and particular. That is, there is general authority or a
right to be a police officer and to perform police duties,
while particular authority exists over an individual who
has violated the law. The police power is not an authority
given to the individual officer; rather it is based upon the
inherent right of the government_to regulate the affairs

of the citizens by enforced legislation. An offense then

 

92Wayne LaFave and Frank L. Remington, 9p. Cit.,

pp. 1003-1007.

93As evolved in Joseph Goldstein, 9p. Cit., p. 570.

 

 

58

constitutes an opposition to the authority of the govern-
ment.94

Yet policemen often view the criminal procedure as
craftsmen; they feel that the system should allow them to
freely employ the techniques of their trade. These techniques,
however, may at times be contrary to due process of law. In
this regard, Jerome Skolnick emphasizes that the purpose of
criminal law is to control the behavior of criminals, while
criminal procedure is used to control the authorities.95

On the street, the officer has the greatest potential
for discretionary judgments, especially those not to invoke
the criminal law. Yet the dangerous nature of the work
combined with the police authority-—the officer's right to
command--may at times undermine his attachment to the strict
rule of law. He is caught in a system of production, deal—
ing with intensified incidents under pressure. The police-
man becomes somewhat alienated, this serving to heighten his
perception of dangerous symbols.96

The necessity for the use of force often requires an
immediate decision by a police officer in the face of physical

danger to himself or to others. The privilege of hindsight

and leisurely contemplation is not afforded a policeman faced

 

94Public Service Institute, Principles 9f Police

Procedure (Pennsylvania valley Publishers, Inc., Pennsylvania
State College, 1955), p. 16.

95

 

 

Jerome Skolnick, 9p. Cit., p. 196.

96Ibid., p. 232.

59

with this split-second decision. For this reason, the law
gives him an area of discretion within which his judgment

may be exercised. In exercising this discretion, a police
officer may, in good faith, err in evaluating the threatened
danger, but if under the circumstances there was reasonable
justification for his apprehension of harm, he does not abuse
this prerogative.

On the other hand, while a police officer has con-
siderable latitude, his decision as to the amount of force
required in a particular situation does not justify his
resolution to use physical means in the first instance.

Thus it is not enough that the officer believes the force he
is using is necessary; his belief must be reasonable. This
determination of reasonableness is subject to review by a
higher authority.97

The arrest has been defined as the taking into custody
of a person so that he may answer for the commission of a
crime. Yet any deprivation or restraint of a person's
liberty might be termed an arrest, whether or not he is booked,
or charged with a crime. While at present our police have
no strict legal right to detain people for questioning in
police stations, it has been emphasized earlier in this

research, that in certain circumstances, they have a need to

 

97David Stahl and Fredridk B. Sussman, 9p, 913.,
p. 109; Richard J. Smith, "The Use of Deadly Force by a
Peace Officer in the Apprehension of a Person in Flight,"
University 9: Pittsburgh Law Review, V01. 21, p. 132; Noboek
vs Town of Montclair, 23 N: J. Super 420 110 A 2d. 339
(1954).

60

do so; in fact they could not conduct their investigations
without doing so. Thus Judge Breitel defined police dis—
cretion as ”the power to consider all the circumstances and
then to determine whether any legal action is to be taken."98
The police manuals are ambiguous in their instructions
to the officer. They follow the strict legal requirements
towards full enforcement of the law. In these ways, the
resulting discretion is unavoidable according to the law.
The law gives no guide as to whether it is desirable,
whether it should be eliminated or controlled, nor does it
provide any means of control . . . merely enforce all the
law!99
Yet the officer's discretion is affected by his
experience and the extent to which he believes a crime has
been committed and that the suSpect at hand is the offender.
His knowledge of facts may be direct through his senses, or
indirect through circumstances and evidence. Yet he must
be certain of both the breach of law and the offender.
Negligent use of discretion then, is a real possi—
bility and thus he must be certain to be able to prove
reasonable grounds for belief--all within the flash of the

split-second decision.100

 

98Charles 0. Breitel, Qp, Cit., p. 427.

99Sanford H. Kadish, pp, 913,, p. 907; Ben Whitaker,
‘Qp. Cit., p. 61; Paula R. Markowitz and Walter I. Summerfield,
Jr., "Philadelphia Police Practice and the Law of Arrest,"
University pf Pennsylvania Law Review, V01. 100, p. 1185.
100Wayne LaFave, Arrest, 9p. Cit., pp. 231-263;
Richard J. Smith, pp, 913., p. 136.

 

 

 

61

Thus the law does not provide the police officer with
anything but a fragile and ever-shifting foundation. It
grants no power of discretion, but demands the interpretation
of a totality of circumstances before application. Further,
the success of the police is measured only to the extent of

perfection by Which they enforce these laws.101

The Role of the Courts

It is one thing to arrest on reasonable cause and
quite another to prove a charge in court beyond
a reasonable doubt.102
There has been a rather continuous stream of court
decisions restrictingtfluapolice and their authority to enforce
the laws and protect the lives and property of our citizens.
In a sense, these opinions reflect a hostility against the
police. Yet in reality, they are meant to curtail the
usurpation of the judicial function and any interference with
liberty, by a police guided by principles of expediency.
Skolnick illustrates two "models" which reflect the
police attitudes towards the courts. The "due process model"
emphasizes legal guilt over factual guilt. Herein the
criminal process conforms to the rule of law. The "crime
control model" on the other hand, emphasizes factual guilt.

It stresses social control over individual justice. The

presence of procedural requirements in routine cases really

 

101Spencer D. Parratt, 9p. Cit

°I

Nolan, 354lkx 980 192 S.W. 2d. 1 6 (1946
102Frank D. Day, ”Criminal Law Enforcement in a

Free Society," Journal of Criminal Law, Criminology and Police

Science, V01. 54, No. 3, p. 364.

 

p. 153; State vs
).

 

 

 

62

emphasizes Skolnick's "due process model."103

These "models" reflect the adoption of the exclusion-
ary rule by the judiciary. This exclusionary rule for the
policeman focuses on his discretion, his basis for reason-
able cause both for arrest, interview, and the incident
search. Skolnick lists many factors which influence the
officer's judgment of reasonable cause. These include the
nature of the information, the character of the informer,
delays which might enable the person to escape, details of
description, time of day, flight, furtive conduct, presence
at the scene of the crime, results of a consent to search,
admissions by the person being questioned, the criminal
record of the arrested person and/or his associates, the
reputation of the premises, and recent crimes in the neighbor—
hood.104

Wayne LaFave on the other hand challenges the exclu-
sionary rule maintaining that it has not met three very
important objectives. First, the requirements of law are
insufficiently detailed so as to meet the objective needs
of law enforcement and individual rights, as reflected by
the rule. LaFave debates whether these requirements are
really understood by the front line men: the officers in the

street, and certainly it can be debated whether the police

 

103Jerome Skolnick, QB. Cit., PP- 182-1837 0' W'

Wilson, "Police Authority in a Free Society,“ Journal 9f
Criminal Law, Criminology and Police Science, Vol. 54,
No. 2, p. 177.

104Jerome Skolnick, 9p. Cit., p. 214.

 

63

desire convictions enough so as to totally comply with the
rule.105

Yet the courts continue to "plod" over law enforce-
ment, and this is reflected in the restrictions such as the
sixth amendment which requires, according to interpretation,
the production of informers, Section 605 of the Federal
Communications Act, which forbids the interception and
divulgence of a communication, the varying definitions of
entrapment and enticement, the McNabb-Mallory rules regarding
arraignment and confessions, and numerous instances of case
law in the area of self—incrimination and bodily invasions.

Within this realm, the police insist that they lack
any guide even for routine decisions. The police perception
of a line between legality and illegality is hazy. Thus
the officer attempts to handle the situation with a view
towards justifying legality, irrespective of actual circum-
stances. He aims to legitimize the evidence pertaining to
the case,rather than analyze the sufficiency of the circum-
stances. The officer will be able to reconstruct a set of
complex happenings in such a way that, subsequent to the
arrest, probable cause will be found according to the appellate
court standards. Only because the officer reSpects the
necessity to comply with arrest laws does he engage in post
hoc manipulations. Above all, the alert and vigilant officer

sees his real task as ferreting out crime. In this sense

 

105Wayne LaFave and Remington, 9p. Cit., p. 1003.

64

then, only good can come out of search for example, which may

be legally defined as ”unreasonable."106
In the lower courts . . . frequently evidence is
suppressed and defendants (are) set free on
grounds that . . . would not be sustained in our

higher courts.

There is very little justice meted out within the
bungling of our lower courts today. The judge, for example,
makes no inquiry as to the grounds for arrest, but merely
sets a time by which the police must formally charge or
release the suspect. There is no actual review of the arrest
decision. Rather the common practice at a trial in the first
instance consists of a judicial notification to the defendant
of the charge, a setting of bail, and a determination of the
need for a preliminary hearing. This emphasis on speed and
the resulting careless handling of facts reflects the judge's
reliance on and the dominance of the discretion of the prose-
cutor.108

Certainly both the exclusionary rule, the defense of
entrapment, and the constant reinterpretation of the American
Constitution are formal recognitions of the responsibility of

the trial judge to concern himself with enforcement methods.

Yet rarely does the judge articulate how the numerous

 

106Jerome Skolnick, 9p, Cit., pp. 214-220.

1070. W. Wilson, "Police Authority in a Free Society,"
.Qp. Cit., p. 177.

108Wayne LaFave and Frank J. Remington, 9p, gi§.,
p. 995; Samuel Dash, "Cracks in the Foundation of Justice,"
Illinois Law Review, Vol. 46, pp. 386-391.

65

acquittals relate to these factors of judicial regulatory
emphasis.109 Certainly though ". . . with more freedom from
political entanglements, he (the judge) can take over much
of the power now exercised by the prosecutor and become the
master of criminal law enforcement."110
Another important contribution to injustice is the
process by which a great number of felony cases are eliminated
through pleas of guilty to a lesser offense.lll Many crimes
which carry penalties of twenty years or life are punished
with as little as thirty days.112
It must be realized that the trial judge occupies a
strategic administrative position. He not only controls the

efficiency of his own court by encouraging guilty pleas

through his leniency in sentencing, or by his support of the

 

109Donald J. Newman, Conviction: The Determination

.gf Guilt g; Innocence Without Trial (Boston: Little Brown &
Co., 1966), p. 5.

110Ibid., p. 171.

 

 

lllSamuel Dash, 9p. Cit., p. 392. Dash notes that 38

percent of felony cases presented to the courts are reduced

to lesser felonies or misdemeanors. For example, robbery,
burglary, and rape are reduced to petty larceny, assault and
battery and contributing to the delinquency of a minor. See
Bureau of Criminal Statistics, Watts Riot Arrests, Los Angeles,
1965: Final Digposition, State of California Department of
Justice (June 30, 1966), p. 37. "Most rioters were charged

 

 

generally with burglary, but . . . the great majority . . .
were in the final analyses convicted of trespassing."
112

The author's field experience includes an episode
in a local municipal court wherein a judge sentenced a drunk
to sixty days and a burglar to thirty. Then he went on to
find another offender guilty of "attempted drunk," but sus-
pended his thirty-day sentence.

66

negotiated pleas, but also uses adjudicative discretion to
control other agencies such as the police. When he dislikes
the enforcement methods, he can and does acquit defendants
who have been subjected to those methods.113

Donald Newman maintains that guilty pleas account for
approximately 90 percent of all criminal convictions. As
there is no requirement that the prosecutor give a reason for
any reduction in charge at the typical arraignment, the court
rarely learns anything about the defendant or his crime.
This process in which a defendant pleads and is convicted of
an offense less than the one of which he is guilty, is only
one of a series of discretionary patterns of "high visibility"

which characterizes the administration of justice.114

 

113
Samuel Dash, Qp. Cit., p. 392.

114Donald J. Newman, 9p. Cit., pp. 5—8, 22, and 76.
Newman classifies the reasons for acquittal as follows:

1. The trial judge may disagree with the intensity of
enforcement, as reflected in the judgment of entice—
ment in vice arrests. Yet it is emphasized that the
prostitute is fully aware of the illegality of her
conduct, and certainly she was not first introduced
to such behavior by the police.

2. The trial judge disagrees with the meaning and purpose
of the law; though the courts seldom differentiate
clearly between an interpretation of the statute
defining the crime and the adequacy of the evidence
or the propriety of the police methods involved.

3. Acquittal may be a means of supporting police detec—
tion methods, as in the case of offenders who become
informants. Here the judge just fully understands
the facts of the case and its connection with the
law enforcement operation, fully agreeing with the
measures taken. (See pages 189—196.)

67

It is admitted wholeheartedly that where the mechanisms
of enforcement are inadequate, respect wanes, and any legal
controls will become impotent. In order to maintain respect,
we must emphasize fairness and legality. Yet the courts are
to a great extent asserting a negative control on the police
in their efforts to fill what is probably a non-existent
vacuum. Seldom is the individual case seen in the light
of the larger enforcement problem. Certainly the police
officer cannot deal with the social and racial enigma which
he faces daily in the street unless he has the full support

of the total court system.

Higher Visibility?

 

There is no stage in the administration of criminal
justice that judges can state is not their concern. Empiri-
cally they exercise a "judicial-supervisory" role, and the
relationship between the judiciary and the police becomes
crucial. Judges participate in making law enforcement
decisions when they impose orderly procedures and neutral
legal decisions. Though these are based on supposedly
informed deliberate determinations, judicial action appears
to be based on destructive rather than constructive
techniques.115

It would appear based upon current practice, that

police officers do not share a vital concern for warrants,

 

115Wayne LaFave and Frank J. Remington: 922 Cit°'

pp. 987-989.

 

68

reasonable cause, and individual liberties. The inducement
to seek judicial review on their part is lacking. Certainly
then, it would be worthwhile to consider if they would show
more concern, respect, and legal discretion, if the con-
sideration of these factors were theirs alone. This implies,
however, that present judicial procedures such as the obtain-
ing of a warrant act as a deterrent to effective policing.116
A more standard policy might be obtained through an
extension of the functions of the public prosecutor, who
presently handles only about eight percent of the serious
crimes. Many supporters would remove prosecuting decisions
from the police realm. This definitely might improve their
relations with the public as each offense, assuming there
were enough prosecutors allotted, would receive individual
consideration according to definite pre—established criteria.
Yet this would shift the discretion to the prosecutor and
with no supervision, he would be making law for the state,
even though such a practice is directly contrary to all
legislative provisions.117
The focus, however, may still be retained on the
police. Certainly the incessant increase in crime is indica—
tive of failing police powers. A critical review of the law

and judicial practices is in order, with an aim towards

accomplishing a criminal law system which, through proper

 

116Ibid., pp. 992—994.

117Ben Whitaker, QB. Cit., Pa 327 Samuel Dash,
QB. Cite: p. 3959

 

69

enforcement, would make citizens law abiding, thus increasing
our freedom from crime while not jeopardizing innocent men.
In this way, only the law will be enforced, with equal service

to all.

VI. ADMINISTRATIVE INFLUENCE UPON DISCRETION

Administrative Discretion

 

It may be repeated that an official assumption of the
total system of criminal justice is that the police are
supposed to enforce all the laws against all offenders in
all circumstances; there is no place then, for expert adminis—
trative discretion. Yet this ideal is impossible to carry
out. "It is like directing a general to attack the enemy
on all fronts at once."118

While the problem of crime control is constantly with
the police administrator, many influences prevent consistent
pressure towards attaining the goals of law enforcement.

The adoption of the budget for example, rarely pro—
vides the chief administrator with his minimum financial
requirements, for the size and equipping of a police depart—
ment is limited by the tax structure. Thus the chief's
forces are spread thinner than his expert analysis demanded.
These limitations on manpower and resources forces a massive

reallocation which must involve administrative judgment.119

 

118Wayne LaFave, "The Police and Non-Enforcement of
the Law," 9p. Cit., p. 107 (quotes Thurman Arnold's Symbols
‘9: Government).

 

119Sanford H. Kadish, 9p, Cit., p. 908; Herman
Goldstein, Qp. Cit., p. 142; Ervis W. Lester, 9p. Cit., p. 799.

70

It is imperative, however, that the administrator
achieve the maximum efficiency from the limited manpower,
equipment, and resources which he has available. Thus the
alert police administrator attempts to anticipate future
needs by distributing his force accordingly. Yet other
limitations come to view. The administrator is faced with
political pressures, graft, corruption, factional strife,
and attacks by the press and special interest groups. It
becomes necessary to inflict strict internal controls over
his policemen to reinforce ”administrative and craft values."

Yet it has been found that these controls usually
emphasize efficiency rather than strict legality. (For
example, as reflected by measuring efficiency by crime
clearance rates.) Certainly too, with decision makers more
numerous and dispersed in the police department, it is
clear that each man will not give the same response to any
single situation. Then there are many community forces which
provide the working policeman with praise for the ”good
arrest" rather than a necessarily "legal" one, praise them
for efficiency, and in a sense opposition to the due process
of law.120

These demands for police efficiency have created a

type of "professional" police image in which minimal concern

 

120Jerome Skolnick, 9p. Cit., pp. 234, 243; Frank E.
Walton, "Selective Distribution of the Police Patrol Force,"
Journal 9; Criminal Law, Criminology and Police Science,
Vol. 49 (1958), p. 165; William M. Kephart, 9p..gi§., p. 267
Wayne LaFave, "Police and Non—Enforcement of the Law,"
92. 913,, p. 118.

71

is given to legality. Yet the "ideal" of legality rejects
any discretionary innovation by the police. The "professional"
ideal of "democratic management" encourages worker freedom,
autonomy, and thus such initiative. Thus the police can only
develop a conception of "legal professionalism" when the
community rewards them with compliance and support. The
presence of what Skolnick has entitled "an official system
of justice without 'trial'" has provided the policeman with
a foundation of efficient principles. The beat officer
thus adopts an "official" perspective while he desperately
tries to accomplish a social good. Having exercised this
administratively recognized discretion, he can hardly be
expected to presume the innocence of the arrested suspect,
nor the lack of justice in his decisions not to invoke the
process.121

In summary, the principle of legality only requires
that the boundaries of enforcement, as drawn by the police
administrator, conform to that permitted by the legislature.
This system, however, depends upon the exercise of discretion
in a rational, consistent, and equal fashion.

Successful police administrative ideology today must
be enlarged to include values based on democratic legal

principles, rather than merely on technological proficiency.122

 

121Jerome Skolnick, 9p. Cit., pp. 106-107, 234—239;
H. Goldstein, 92. Cit., p. 142; Wayne LaFave, Arrest, 9p. Cit.,
Chapter 5.

122Wayne LaFave, "The Police and Non—Enforcement of
the Law," 92, Cit., p. 112; M. Glenn Abernathy, 9p. Cit.,
p. 474.

72

Communication, Trainingyand Discipline

 

Police officers are not expendable, and when they
are assigned to tasks exposing them to injury or death, they
must be given the training, the equipment, and the support
that will enable them to handle each incident successfully.
Their direct actions, however, must be controlled by adminis-
tratively outlined policies to define where discretion may be
exercised. The importance of a clearly delineated policy is
reflected in the maintenance of the public peace. Clear
instructions must permeate the department from top to bottom.
Control over these policies can then be maintained by an
organized system of rewards and punishments, many of which are
SOCially conditioned and built informally into existing
relationships.123

The control exercised by any administrator rests on
his power to discipline each member of the organization.
Intradepartmental supervision is accomplished by internal
review, based on regularized reporting as well as the possi-
bility of criminal or civil action directed at the officer
for his mis-judgment. Certainly, too, a properly administered
complaint review system will deter aberrant behavior and
lead to the desired standards of conduct among the police

officers.124

 

123Michae1 Banton, 9p. Cit., p. 2; David Stahl and
Fredridk B. Sussman, _p. Cit., pp. 167, 263.

124Bruce Smith, 9p, 935,, p. 155; Wayne LaFave, ”The
Police and Non-Enforcement of the Law," _p. g;p., pp. 130—136:
Harold Beral and Marcus Sisk, "The Administration of Complaints
by Civilians Against the Police," Harvard Law Review, Vol. 77
(1964), p. 500.

 

73

More basic administrative control is maintained through
the disposition of cases. Each complaint might be cleared by
arrest or service, be proven unfounded, be termed inactive,
or be categorized in some other similar fashion. Rates of
crime clearance by arrest, property recovered and by conviction,
have generally served as a measure of a department's performance.
Yet these may well be a faulty control mechanism. Skolnick,
for example, illustrated how a suspect may "cop out" to a
number of crimes, which he may not have in fact committed.

This leads to falsely "solved" cases. Similarly discretion
exercised at the time the report is taken may lead to more
arbitrary selections between a true ”offense" and what might

be termed a ”suspicious circumstance." This process of dis-
cretionary screening by the officers before a detective is
assigned, may definitely affect the crime rate statistics.125

Overall employee performance can be improved by
thorough communication and participation in training programs.
The most basic instrument of communication is the "Rules and
Procedures” of the department, a copy of which is issued to
every officer. 'This volume extensively details the organi-

zation, discipline, and administration of the department,

 

while also establishing routine duties and procedures.126
125 . .
Jerome Skolnick, 9p, C1t., pp. 170-176.
126

Matthew J. Neary, "Motivating the Foot Patrol-
man," Thesis, Bernard Baruch School of Business and Public
Administration, City College of New York (June, 1962),
pp. 451 61.

74

In the contemporary dynamic police environment,
frequent changes arise which are greatly enhanced if given
adequate and proper presentation. Merely to publish rules
and procedures without making provision for each member to
be sufficiently exposed to it, negates the original effect
and any attempt at control.127

The sergeant is the line supervisor responsible to
exact and control the performance of the officer on patrol.
To a great extent, the success or failure of the patrol
force rests with the sergeant, and thus the supervisor can
be "exploited" in communication, training, and disciplinary
activities. For example, the use of interpersonal conver-
sations and communication as well as conference sessions
and pre-promotional training, all effectively serve as an
administrative-influencing structure.128

It must be emphasized that men do not stay trained,
and even if they do not forget what they have learned, in
police work as in any dynamic social occupation, it will soon
become obsolete. This bears directly on the laws to be
enforced, and the freedom of discretion. Officers should be
made to answer to superiors for cases that are lost in
court. As well, court police officers should be made respon-

sible for regularly reporting relevant judicial decisions.

In this way, before a charge is laid, the officer will know

 

127Ibid., p. 108.

12811616., pp. 34-37.

75

the probable outcome based on recent legal opinion. Later,
these discretionary issues can be added to training manuals
and discussed at roll call instruction periods or in a
training bulletin. Certainly the well-informed officer will
be a more valuable asset to the department. He will become
more aware of his supervisory problems and more understanding

and tolerant of the ever—changing police ideology.129

VII. "INTERNAL" POLICE FACTORS UPON DISCRETION

The Nature of the Job

The police officer is in an unparalleled position to
observe the machinery of society in operation. In fact, his
sense of judgment is derived from his participation within
the society he polices, and yet he knows that any of these
resulting decisions are sure to be challenged in court.130

The nature of the police job involves restraint and
at times produces conflict. The focus of the officer is
chiefly upon disruptions among what are supposedly efficient
human relationships. While his work resembles that of
physicians, lawyers, nurses, and the clergy, his training is
much too short to be even comparable. His job is to seek

rather than to be sought. The criminal who is the main

object of the officer's efforts, strives for avoidance. Yet

 

1291bid., pp. 53, 61; Wayne LaFave, Arrest, QB, Cit

p. 74; Wayne LaFave and Frank J. Remington, 9p. Cit., p. 1005.
130

 

Michael Banton, 9p. Cit., p. 144.

76

as the climax of the police role is the arrest of the law-

breaker, the environment in which the officer must work is

. 131

certain to be unfavorable.
The policeman is not supposed to be concerned with

the activities of the courts, for "playing" judge and jury

is beyond his realm of responsibility and authority. Yet

in practice this distinction is difficult to maintain. Each

officer makes his own decisions on his own responsibility.

He must act honestly in good faith without reckless
indifference or from bad motives.

The street patrolman is especially prone to assert-
ing authority when facing outright hostility even when he
may be without the formal capacity to impose legal sanctions.
When the officer is actually boss of the situation, however,
his conduct may be tempered. When he faces potential danger,
he is more inclined to resort to the use of his authority
in order to reduce the perception of danger. In effect,
when the citizen makes a policeman sweat to take him into
custody, he has created a situation most apt to lead to
police indignation and anger.133

This element of necessary authority also accounts for

the social isolation of the police. The officer must attempt

 

131David Stahl and Fredrick B. Sussman, 9p, gip.,
p. 167; Jack J. Preiss and Howard J. Ehrlich, Ag_Examination
pf Role Theory, University of Nebraska Press (1966), p. 7;
Bruce Smith, Qp,figi§., p. 2.

132Roscoe Pound, 9p, Cit., pp. 929-930.

133Jerome Skolnick, 9p, Cit., pp. 88-89.

 

 

77

to regulate, in addition to criminal and traffic activity,

the public morality. Thus he must investigate everything from
parked lovers to gamblers, prostitutes, and drunks. The
nature of these social investigatory problems and the incident
public reactions, are certain to affect his "operational
discretion." Thus Jerome Skolnick attempted to show ”how

it is possible for him to be accorded wide decisional latitude,
to be racially prejudiced, and to carry out his work even-

handedly."134

The Personality Factors

The police,aas a result of the combined features of
their social situation tend to develop ways of looking at
the world distinctive to themselves. This "working personality"
is perhaps most highly developed in the beat patrol officers.

Key to the policeman's perceptual apparatus is his
response to symbols of danger. In fact, the combination of
the two variables of danger and authority often seem to
frustrate routine legal and departmental procedures. Based
on his exposure to violence, the officer's conduct towards
members of the public and his relations with fellow officers
is affected. This results in the solidarity feature of the
police group, with the resulting sub-culture of brother—

officer obligations. 35

 

”1341bid.. p. 84.

135Jerome Skolnick, on Cit., PP» 105: 447 M° Banton,

9p. Cit., p. 110.

 

 

78

The police see their office vested with moral
authority as well as legal power. Thus they develop the
discretionary use of persuasion rather than prosecution,
attempt to act within the popular morality, and try to get
offenders to recognize their wrong doing. Michael Banton
emphasizes, for example, the extreme extent to which the
officer will go to argue the right and wrong of a situation.136
While the policeman sees himself as a man who extends
justice even-handedly, and this exerts some control over his
behavior, the police as a group are withdrawn to some degree,
because of the power with which they are vested. The officers'
conceptions are shaped by persistently trained suspicions.
Indeed this is a necessary feature of the good officer--to
be able to perceive events or changes in the physical surround-
ings which may indicate the occurrence of disorder. Yet
the training of etiquette, including the ability to make
fine social distinctions is important in his daily exercise
of observatory judgments.137
For the police administrator, a major role concerning
these "internal” police factors is the evaluation of the
officer. That is, the administrator must attempt to assess
the personality characteristics of the police officer, which

may affect his operational efficiency. H. P. Vignola138

 

136Michael Banton, 9p, Cit., p. 147.

 

137J. Skolnick, 92o Cit., pp. 48, 67, 83; M. Banton,
_(_)p_. Cit., p. 190.

138H. P. Vignola, "The Personality of the Police
Officer," Interdisciplinary Problems 33 Criminology. Papers

of American Society of Criminology, Ohio State University
(1964).

 

79

of the Montreal Police Department, attempted to investigate

the personality of the police officer within the working

environment. He noted that, according to psychologists such

as Allport, Krech, and Crutchfield, the personality is the

result of forces within the environment, which influence

the development of the individual's total potentialities.

This was supported in "Racial Factors and Urban Law Enforce-

ment” by William M. Kephart who showed the role of attitudes

as they affect the working personality. For example, to

questions such as "Do you have to be more strict with Negroes?"

he received answers such as "Yes, because they have no reSpect

for the law." "They are usually under the influence of alco—

hol." "Nearly all of them carry knives and like to use them."

"You've got to be tough with them; they expect leniency."139
Vignola then defined the police personality as "the

dynamic organization of the habits, dispositions, and emotions,

directed towards the original fulfillment and adaptation of

an individual to his police environment, from a professional

as well as a social point of View."140
From this research, six key personality traits evolved:

the attitude towards police work, professional conscientious-

ness, self control, cooperation, comportment, and attitude

 

139William M. Kephart, 9p. Cit., pp. 81-83.

 

140H. P. Vignola, 9p. Cit., p. 105.

 

80

towards others.141

Certainly the personality of the officer is important
in influencing his "situational discretion." Yet it would
appear that from the key factors listed, the core of the
judgmental problem lies rather in the officer's skill in
handling the ambiguous situation. In this sense, Kephart's
"social factors" perhaps allow greater direct application
to the job and working assignments. He notes length of
service or experience, education, working with Negro officers,
living in a Negro-inhabited neighborhood, the visibility of
Negro offenders and Negro policemen, and the treatment of
the Negro offender. Certainly these emphasize the formation
of attitude and in this sense, we must study the officers
as individuals within their particular society.142

James 0. Wilson defines the police problem as largely
one of morale. The officer must find a satisfactory basis
for self—conception. It must be realized that the police
routine is that of dealing with antagonists. Further, his
role demands service to incompatible ends: that is, the

public which he serves cannot make up its mind what it wants.143

 

141Ibid., pp. 103-105. Other characteristics were
knowledge of police work, accuracy, understanding of people,
capacity to learn, ability to carry out instructions, draft-
ing of reports, initiative, appearance, and practical judg-
ment.

142Ben Whitaker, 9p. Cit., p. 11: Michael Banton,
.Qp. Cit., p. 203; William M, Kephart, _p. Cit., p. 96.

143Wilson cites as an example the symbolic enforce—
ment of gambling regulations: citizens want to be allowed to
place bets with honest bookies.

81

In addition, the officer must conform to the group, for he
feels that he is an outcast-—a sort of pariah, and these
are his only allies.144
Wilson maintains that there are two group organiza-
tions, each providing a different definition of the "good
cop." The system code maintains institutionalized rules and
norms. The policeman is a member of a group which keenly
feels its "pariah" status. The professional code expresses
an external body of expert knowledge about ”correct" police
work—-there are no feelings of group separateness. Wilson
terms the system ”particularistic," rewarding the particular
individual for his actions in particular circumstances, with
"particular” others; whereas the professionals reward pro-
ficiency in the application of universal standards. Hence
they are "universalistic."145
Using either code, a police officer has considerable
discretion in enforcing the law. The system would define
the policeman as the source and the enforcer of the law on
his beat. Discretion then is essential to maintain a maximum
of public respect for the police. The professional is keenly
aware of the possible creation of ill will by enforcing all

the laws sans discretion, but he believes in the good of

his cause and thus attempts to treat all law-breakers as the

 

144James O. Wilson, "The Police and Their Problems,"

Public Policy, Vol. xii, 1963, pp. 191-193; Michael Banton,
QB. Cite] p0 1180

1451bid., pp. 200-201.

82

rules of the law state he should. "Professionalism" then

permits discretion in the area of which laws to enforce,

solely towards attaining higher enforcement ends.146
The system attaches authority to the person based

upon group support, whereas the more bureaucratic "professional"

image places authority on the office which the man represents.

Based on this foundation, the use of violence coerces public

. 147
respect in one code,

while it is only used in self defense,
escape, or "subdue situations" in the other. In a similar
fashion, then, Wilson analyzes features of the total police
organization.148
Michael Banton notes that morale is affected by the
courts, the prosecutor, internal pride, and discipline.
This is certainly reflected in the complaints of police
officers who feel that the judiciary is too lenient, especially
where racial matters are concerned. They note a lack of
community support and reSpect, as well as poor treatment by
the press, and the constant attachment of racial connotations
to every police action involving non-white citizens. It

becomes evident, then, that the qualifications, the integrity

and the ideal of each police officer, will determine the

 

146Ibid., pp. 203-209.

147William R. Westly, "Violence and the Police,"
American Journal pf_Socioloqy, Vol. 59, p. 39. Westly found
that 37 percent of the men believed it was legitimate to use
force to coerce respect.

l481bid.

83

efficiency of the police force as a whole.149 In the words

of O. W. Wilson,
I do not consider police officers to be robots who
are prohibited from exercising discretion. Each
. . . every day is called upon to decide whether
or not to search, to arrest, or to hold an indivi-
dual. This is as it should be. If we took dis-
cretion out of the job of a police officer, we

would reduce the task to one which could be per-
formed by people of less capability, and much less

pay.15
VIII. THE PUBLIC VOICE: INFLUENCE UPON DISCRETION

Education of the Public

The police role has been described as focusing upon
the discovery of suspicious circumstances, the obtaining of
evidence, and the apprehension of suspects and witnesses.

In a definite sense, the officer also represents the public
conscience, especially in his threat to the status of the
wrong-doer. While the nature of the role requires a definite
amount of secrecy, it must be realized that the intonation of
such concealment in combination with the traditional scanty
records of the police, generally provides a base for the
suspicious inquisitiveness of the public. Any discrepancy
between what the people expect and what is necessarily done

for their protection, results from their lack of understanding

 

149Ben Whitaker, 9p. Cit., p. 17; Michael Banton,
.Qp. Cit., pp. 100-104; David Stahl and Fredridk B. Sussman,
_Qp. Cit., p. 155; H. P. Vignola, 9p, Cit., p. 101.

150Wayne LaFave, Arrest, Op. Cit., p. 61 (as in FAX
501, June 16, 1962).

 

 

 

84

of the police purpose and what the police must do to
accomplish it.151

It is emphasized that popular controls must guide
the major policies of the police departments as well as
indirectly influencing the manner in which such policies
are applied in the routines of police work. Thus to provide
stability and acceptance of the existence and function of
police discretion, the police and public at large will have
to share the same norms of propriety. This ideal, however,
has become very difficult to realize, especially in view of
the recent social and racial problems.152

Yet this basic police-public relationship must be
focused completely down the line of police ranks, for nothing
is more important than that the individual officer should
exercise good judgment in handling people and situations, as
reflected in the public eye. The beat officer, then, who
wields moral authority, responds in a predictable fashion
and in a manner that is socially approved, will be an officer
in whom the public will have the greatest confidence and

153

respect.

When you deal with the public, an ounce of kindness
is worth a pound of toughness.

 

151Spencer D. Parratt, QR; Qit., Po 1567 Jadk J'

Preiss and Howard L. Erhlich, gp..gip., p. 7; O. W. Wilson,
"Police Arrest Privileges in a Free Society: A Plea for
Modernization," Journal 9; Criminal Law, Criminology, and
Police Science, V01. 51 (1960), P. 398.

152Michael Banton, 9p. Cit., p. 146.

 

153Nelson A. Watson, 9p. Cit., pp. 28-31.

154William M iKephart,.Qp. Cit., p. 69.

 

85

The Critical Atmosphere

 

Yet the favorable climate in which a police—public
relationship can flourish just does not exist. The general
tide of opinion runs strongly against the police, and this
is illustrated daily on the street.

While the officers were being beaten, not one citi-
zen could or would muster the courage to assist
them, or even to call for additional help so the
men could be properly defended.155

Thus the thousands of men who day and night patrol
our throughfares, who must strenuously contend with criminal
activities and risk their lives in the public service, are
certain that the public is ever ready to castigate them for
the ever-growing social situations with which they must deal.

To counterbalance this influence, the police officer
attempts to and indeed must exercise careful discretion. It
is very evident, especially in underprivileged areas, that
the public does not want law enforcement in the strict sense
of this term. In response to these demands, the instrument—
alities of law enforcement have been weakened. Certainly,
too, this newly emphasized awareness of the public point of
view influences many daily police decisions. Based on public
policy, then, the police discretion is tempered between the

legal rule and the limits of toleration.156

 

155Frank D. Day. 92- Cit., p. 361.

156Spender D. Parratt, Qp, Cit., p. 163; Michael

Banton, Qp. Cit., p. 145; Bruce Smith, 92, Cit., p. 5.

86

It is also time, however, for the news media to re-
evaluate their impact upon the general lawlessness. Certain—
ly the macabre fascination of the press with vigorous terms
such as "black power" and "brutality" and their constant
sensational interpretations of even routine incidents has
created the foundation for hostility against the police.

The police must rely on these same agencies to en-
lighten the public. Here effective public relations must
counteract the prejudices of the unschooled public, for there
are too few influences which inform the public of the harsh
realities of police duty. It must be constantly demonstrated
and re-demonstrated that each and every Negro offender is
not the innocent victim of white man's law. This will only
be accomplished through the creation of a contemporary
police image. At this point, the police will begin to obtain
citizen approval, and from this stage, the police-community

relationship will extend and expand in scope and stature.157

IX. POLICE DISCRETION AND THE INFLUENTIAL FACTORS

Summary

That "discretion" has become an issue in the role
of contemporary law enforcement need not be further elaborated

upon at this point. It has been shown that the very basis

 

157Spencer D. Parratt, 9p. Cit., p. 164; Bruce

Smith, 9p, Cit., p. 7; Quinn Tamm, "On the Bitterness of
Molotov Cocktails," Police Chief, Vol. XXXIII, No. 9
(September, 1966), P. 6.

 

87

on which the police have been organized, that is, as field
agents charged with the governing of laws and morality, and
the varied obligations which a police force must fulfill,
rest on a fulcrum which must balance the public safety with
our constitutionally declared individual freedoms. This
fulcrum is discretion--the decisions to invoke the process,
to arrest, to mediate, to initiate police service--based on
the trained judgment of an officer attempting to control an
incident or breach of the peace.

That the police have no choice as to which laws to
enforce, then becomes absurd. The criminal code cannot hope
to encompass all conduct without someone's interpretation at
definite points in the chain of events that surround a breach
of law. Further, the agencies of justice just do not have
the manpower or the facilities to enforce the law per se.

In addition, it has been emphasized that the individual cir-
cumstances of each and every situation vary so that the mere
application of rules cannot hope to attain the desired
justice and prevention.

Based on these recognized facts, it must then be
determined which agency or agencies should exercise the
necessary discretion. The police agencies are controlled by
the law as well as the organization of government. An
examination of the legal status of the officer distinguishes
his authority and its exercise from discretion under the
law. It was demonstrated time and time again, that the

police have over-stepped the legal bounds in their attempts

88

to "right" a situation.

It must be determined if, based on this consistent
assumption of broader power, the laws which attempt to control
the police are outmoded. The Royal Commission concluded
that the present legal status of the police was justified:
they should retain their independence. Other means of
effective control, while not restricting the accomplishment
of the police task must be found.

The police officer in the minority racially-mixed
and transient community, is dealing constantly with an ex-
treme of human life, and yet is attempting to apply a norm.
A "tug of war” has developed between these classes with
what has been termed "their own morality,“ and what has
become a minority of police attempting to attain control
based on what are totally radical standards to the slum
inhabitants.

The effect of these opposing forces is a distinct
split within the community. The inhabitants bind closer
together even though they appear to the outsider to be their
own worst enemy. They maintain a regime of self—protection,
enforced every time a "link" of the chain is lost to the
other side.

Similarly, the police who must attempt to infiltrate
and handle this society, consistently expect violence, for
even the most routine of calls have become dangerous. The
deviant behavior within these communities conforms with local
social norms,and enforcement of other than those accepted

norms, has brought rebellion.

89

Unfortunately, the literature has not been able to
adequately define the officer's role in this war within our
communities. Should he bow or cater to the minorities'
perceived values, should he allow the fights, the assaults,
the theft,in fact the total disintegration of order, to
perpetuate? Or should he insist that every breach of law
endangers the community, and thus the legal codes which
prescribe the ”right behavior" must be enforced? The legis-
latures, the law, the public, in fact the persons within
these communities have provided no answers. We have left
the officer with absolutely no choice but to exercise his
judgment--police discretion.

The police are craftsmen. Their tools are the laws
of the criminal code, their goal is social order, peace and
safety. The street is their workshop--the focus of police
work and the climax of discretionary judgments. Demands
for production are placed upon the officer. Yet these de-
mands are ever shifting; the law giving only a fragile guide,
while the judges and prosecutors merely concern themselves
with the efficiency of their own agencies.

Their efficiency most often becomes acquittals and
the acceptance of guilty pleas to lesser offenses (90 percent
of all convictions according to one author). The police
officer's system is imbalanced by these attempts to exercise
supervisory discretion. The destructive techniques appear
thentx>negate any virtues of "higher visibility," and thus

the focus of discretion must still be retained on the police.

90

The nature of the exercise of discretion on the street
varies with the many incidents. In some, officers have no
choice but to enforce the law: in others, there is choice
and the process may not be invoked. The law is "ignored,"
and yet, in many more, the situation is only guided by the
personal judgment of the officer.

The officer is dealing then with both action and
restraint, which when coupled with the many stresses of the
inter-community ”tug of war," the result is a sheer wall of
conflict. This strain has produced both the system cop and
the professional police officer, each adhering to a morality
and a goal interpreted from the same legal framework.

These officers are not robots. They seriously try
to make headway in the community, for they are one of the
only agents who seem to view the total disintegration. They
are the only agents in the administration of criminal justice
with the experience to know what must be done on the street.
With more and better training and equipment, based on sound
scientific and social research, these men can be equipped
to do the job. At that point, they will be able to view the
implications of their decisions and relate them to the needs
of the community. In this way, they will successfully
exercise the discretion which they must have to police our

streets.

Some Recommendations

The basis for a review of this discretionary proce-

dure is the inherent intent on assuring soundness and honesty

91

in its exercise between the extremes of the complete failure
to initiate the process of the criminal law, to the imposi-
tion of a form of punishment or treatment for which there

is no legal sanction.

In order to measure the effectiveness of the allocated
duties, it is necessary to inquire into the methods and
results of police agencies. What are the laws entrusted to
the police and how are they enforced? Do these laws lead to
confused reSponsibilities?

The function of the principle of legality begins
when arbitrary power to judge and punish has effective limits
placed upon it. These limits are the criminal law. Law
enforcement may be strengthened by legalizing common police
practicesvflfirfllwould extend and reinforce discretion, and
facilitate the discovery of criminals and evidence of their
guilt, and lessen the exclusion of this evidence at their
trial.158

The fact that there are more laws than can be
reasonably enforced is not a handicap, but an aid to the
police because it gives them so many offensive "weapons" to
launch against the particular law breaker. Therefore the
attempt to resolve the conflict between the principle of
legality and the need to sensitize the criminal law to the
felt needs of society is found in the exercise of police

discretion.159

 

1583. M. Barker, 9p. Cit., p. 400; O. W. Wilson,
”Police Arrest Practices in the Free Society," 9p, Cit., p. 399.

159Thurman Arnold, ”Law Enforcement" (in Robert

92

The role of police as decision makers then must be
expressly recognized. The officers, through experience,
gain the "expert understanding" and the special competence
required to make discretionary judgments in the field. Yet
their authority to perform these necessary functions and to
allocate the necessary resources involved, must be more
clearly delineated and actively supported. Means must be
devised whereby abusive judgments may be minimized or neutral—
ized, and conscientious judgments guided to insure consistency
with the goals of a criminal law system.160

Controls must be established which accurately define
the particular crimes in terms of on-the—street situations.
There must exist a form of centralized supervision over those
who exercise discretion, to ensure uniformity under these
redeveloped contemporary laws. Such supervision should
provide prompt and effective sanctions for abuse of the
discretionary responsibility, as well as merit and applause
awarded for the applied balanced judgments.

In a somewhat similar vein to Britain's Inspectorate
of the Police, and Goldstein's Policy Appraisal and Review
Board, there should be developed a state-wide body with the
ability to coordinate the law enforcement programs within its

kwundaries. This would involve a sharing of discretionary

 

 

Sciglqiano's The Courts: A_Reader lg the Judicial Process)

(BOStnon: Little Brown and Company, 1962), pp. 215-216;
B- M. Barker, pp. Cit., p. 400.

160Wayne R. LaFave, "The Police and Non—Enforcement

Of the Law," 92. Cit., p. 115.

 

93

policies by not only different police agencies, but among
the police, the prosecutor, the courts, and correction and
parole officials. Each step in the administration of criminal
justice would be based upon common definitions of police
procedures, each agency or unit would understand the other's
intent, and in a true sense, this administrative machinery
would be able to correlate even the ”thinking" of the agencies
involved in crime control. Yet just as good officers will
use discretion wisely, so might such a board attempt to con-
trol discretion wisely.161
Any policies or programs antagonistic to the rule of
law would be influentially abandoned, while the very act of
re-examining the police workload would stimulate greater
cooperation and implementation. In this way, the organiza-
tion of the administration of justice would be established
so as to control the police while enabling them to perform
their duties impartially and to achieve maximum efficiency
and use of manpower. With discretion formally recognized at
all levels, the police force, if properly manner, trained,
and paid to do its job, might become sufficiently candid
in its relations with the citizenry to maintain a more out—
ward or open-door policy of enforcement, in and for the

community and believed in by the community.

 

161J.'Goldstein, Qp, Cit., pp. 582-586: M. Glenn
Abernathy, Qp, Cit., p. 483.

94

Conclusions

 

This review of the literature has attempted to provide
a foundation for the study developed in the following chapters.
It served to accurately draw the boundaries of the area under
concern by defining ”discretion," its legitimate and illegiti-
mate roles, the legal, administrative, and operational controls
affecting its use, and by reviewing a broad scope of the
duties of a police officer to portray its necessity.

Within this frame, the author has attempted to seek
out factors which appear according to the authors reviewed,
to influence the personal judgments in discretion of a police
officer in any situation.

The decisions made at the station, in the car, and at
the incidents are influenced by many factors. Figure 2 lists
the factors derived from the literature review, by noting
the page number from the aforementioned literature review,
andtflmasummarized factor. This may be compared to the factors
derived within B. M. Barker's study, ”Police Discretion and
the Principle of Legality." Unfortunately, this article does
not elaborate on the sources of Barker's factors, but Figure
3 represents the extracted list.

These items then will be termed the ”influencing
factors" on "situational police discretion." The instrument
to be designed will constitute an attempt to identify and
measure their relative influence on a police officer's

judgment in typical complaint situations.

FIGURE 2

95

FACTORS INFLUENTIAL IN THE EXERCISE OF POLICE DISCRETION

(As Indicated by This Literature Review)

FACTOR
Nature of event

Nature of the community-~Economic and Racial
Constitution

Need for Immediate Custody

Extent to Which the Officer Maintains Control
Danger to the Officer

Need for Force

Time of Day

~Need forActions for Purposes Other Than,
Prosecution

37,58,

23,33,
34,
38,72,
55,71-72,
55,45-48,

58,

41,

Characteristics of the Offender: Demeanor--Sobriety-— 24-26,

Mental Health--His Admissions--Prior Record—-
Attitudes Toward Victim--Attitudes Toward
Police--Marita1 Status--Employment Status

Characteristics of the Victim: Demeanor--Sobriety-—
Mental Health--His Admissions--Prior Record--
Attitudes Toward Offender—-Attitudes Toward
Police--Marital Status—-Employment Status

Characteristics of the Bystander: Demeanor--
Sobriety—-Mental Health--His Admissions—-Prior
Record--Attitudes Toward Participants--
Attitudes Toward Police--Marital Status—-
Employment Status

Officer's Personal Acquaintance with Participants

Availability of Police Resources--Equipment-—
Manpower

Need to Avoid a Strain on Police Resources

Officer's Legal Authority to Take Action

45,58,

24-26,
45,58,

24-26,
45,58,

30,

65, 69,
32,

26,

Likelihood of a Reduction in Charge or
Dismissal of the Action by the Courts or
Prosecutor

Likelihood of a Guilty Plea

Basis for Reasonable Cause to Believe Offense
Committed (Means by Which Officer Encounters
Situation)

Basis for Reasonable Cause to Believe Suspect

is

Offender

Details of Description

Need for Action to Conform with Legal

Requirements
Nature of Legislation Covering the Incident
Nature of Punishment in Proportion to the Crime
Nature of Political Policy or Control over Incident
Recent Appellate Court Opinions
Recent Supreme Court Opinions
Chance of Review of His Decisions by the Courts

or Superior Officers

Liability of the Officer

Prosecutor's Criteria

Supervisor's Criteria

Applicable Rules and Procedure

Need to Maintain Respect for the Police

Need for Action to Punish Criminals Who May Have
Avoided Previous Convictions

Need for Action to Assist in the Investigation of
Other Offenses

Police Desire for Convictions

Public

Recent

Support in the Area

News Coverage

96

27,61,

27,62,

33,48,57,

33,48,57,

58,

34,
37,51,
37,44,
48-52,

54,

54,59,

60,

20,48,68,

64,
68,
68,

32,

32,

32’ 39-4l(

59,

78-80,

80-81,

'97

Officer's Value System: Professional 39,72,75,76,
Conscientiousness--Attitude Toward Police
Work--Self Control--Cooperation—-Comport-
ment--Attitude Toward Others—-Morale
Officer's Knowledge of his Authority 45,54,
Officer's Experience 48,72,

Officer's Training 48,69,

98

FIGURE 3

FACTORS INFLUENTIAL IN THE EXERCISE OF POLICE DISCRETION

by

B. M. Barker*

The degree of criminal sophistication shown by the alleged

offender.

Amount and quality of the evidence relating to the alleged

offense and available to the police.

Whether or not the offender is under treatment for mental

The

The

The

The

The

The

The

The

The

disorder.

police view of the efficacy of a caution in prohibiting

the reoccurring of offenses.
nature of the offense.

strength of the police desire to keep the offender out

of contact with the criminal court.

desire of police to share in the positive treatment

reaction to crime.

offender's attitude towards the police.

offender's attitude toward the victim of the offense.
attitude of the victim.

degree of temptation involved.

clarity of criminal legislation most relevant to the

offense.

99

The prevalence of the conduct in question.
The effect of a prosecutor on police public support.

The police view of the suitability of the punishment pro-

vided for the particular offense.

Particular priority of the alleged offense as a call upon

police resources.
Attitudes of the individual officers.

Attitudes of thecourts to the type of offense as known to

the police.
Public attitude towards the conduct in question.
Sex of the alleged offender.
Age of the alleged offender.

Social status of the alleged offender.

*B. M. Barker, 9p. Cit., pp. 402.

CHAPTER III
ANALYSIS OF THE INCIDENTS

I. METHOD

The foundation of this study of police discretion
has been established by the review of the literature. It
was found that there appear to be many factors which in-
fluence any particular decision of the officer in the field.
It must be determined, then, whether these factors can be
supported by analysis of actual incidents.

The design of some method whereby officers could be
observed first-hand performing their police duties, while
not interfering or affecting their mode of conduct, was
necessary. Participant observation would allow for such an
accurate study, especially if the complete intentions or
scope of the research was not revealed. Thus a large metro-
politan city was visited for a period of seven weeks during
which time, the researcher rode as observer in patrol cars
in two particularly high crime rate low economic areas.

The particular precincts were chosen so as to yield
a maximum number of incidents in the shortest period of time.
In addition, while it was realized that the 4:00 P.M. to mid—

night watch would be busiest, the observer rode on all shifts

so as to View all types of police activity. In fact, about

101

fifty percent of the time was spent on the 4:00 P.M. to mid-
night watch, twenty-five percent on the 8:00 A.M. to 4:00 P.
M. watch, and twenty—five percent on the midnight to 8:00
A.M. watch.

The officers were met in an informal fashion by
sitting in at the roll call each evening. The observer
merely explained that the research involved the police
problems within the community, what problems the area and
people specifically contributed to the police workload. It
was found that this explanation was not only accepted, but
provided an excellent springboard for discussion during each
tour of duty.

The observer made a practice of rotating cars each
day so that almost all officers were observed in each pre-
cinct. In the car, only an incident log (see Figure 4) was
maintained, noting the times of the run, arrival, and in-
service dispatch, the address of the incident, and its
nature. If questioned about the log, the observer explained
that merely a narrative summary of the incident was written
up after the tour of duty.

After each watch, narrative reports were completed,
carefully maintaining the proper sequence of each step in
each incident. These narrative summaries coincided with pre—
pared book-type programmed reports, which were a part of an—
other on—going study. As these book-type reports were di-
vided into numerous sections for the nature and behavior of

the participants, the actions involved, and other details,

102

FIGURE 4
Police Observation Study

Incident Log

 

 

INCIDENT LOCATION NAME

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Observer's Name City Date

 

Precinct Patrol Area

103

a cross check on the accuracy of the narrative summary was
obtained. In this way, almost two hundred incidents were ob-

served and recorded.

II. ANALYSIS OF THE REPORTS

Based on a random selection, one hundred incidents
were subjected to a more detailed analysis. These included
twenty felony complaints, thirteen misdemeanors, twelve
juvenile incidents, twentyrsix disturbances, five auto acci-
dents, thirteen traffic violations, eight injured persons,
and three fires.

The intended analysis was an attempt to determine
the significant patterns of actions that occurred within the
incidents. Specifically, an attempt was made to determine
where and what decisions are made by the officers and where
discretion is exercised. Logical analysis at each of these
points gave support to the particular decision made. Thus
the incidents were described in terms of the officers'
actions and were deemed to start with the receiving of the
run or viewing of the incident by the officers, and end with
the final radio transmission. An attempt was made to keep
all terminology consistent.

A flow chart was designed (see Figure 5). This al—
lowed for a "pictoral" presentation of the incident, for de-
scription of each step in sequence, and indications of both

decision points and decisions made.

1(14

Figure 5

 

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T O T A L S —--————————--—---

 

105

After the flow-charting was completed, it was found

that the incidents could be classified as follows, according

to the particular pattern:

2911:2113
a) Incidents involving felony complaints
which culminate in an arrest 4
b) Incidents involving felony complaints (no
arrest) 16
c) Misdemeanor complaints involving arrests 5
d) Incidents involving misdemeanor complaints
(no arrests) 8
e) Incidents involving juvenile complaints 12
f) Incidents involving disturbances, disputes,
disorderlies (no arrests) 26
g) Incidents involving automobile accidents 5
h) Incidents involving traffic violations 13
i) Incidents involving injured persons 8
j) Incidents involving fires __3
Total Incidents 100
It was noted that very similar basic patterns
evolved (see Figures 6 to 15). Yet within these patterns,

there was a significant difference in the number of de—

cisions made between those cases which involved an arrest,

and those which did not (see Figure 16). Similarly, there

appears to be a significant similarity between those inci-

dents which involved largely programmed decision-making;

106

FIGURE 6

 

V
AHVWWDS

HBHWHN HSVD

ISBHHV
Anoqas
news so SdAI
'- HIVG
8 v LDNIDBHd
‘LdSO 331108
NVIITOdOdIBW
IHVHD
3333088 INEGIDNI
dHIS
nova so
NOIIdIHDSEG

 

 

 

 

HSHNDN dHIS

NOILVHHdO

 

NOILVLHOdSNVHI

HDVHOLS

NOILDHdSNI

'NIW NI BWIL

4

HGVW NOISIDHG
INIOd NOISIOEG

GSAWOANI NOILHHDSIG

 

l

v

Officers received run to a felony

O

 

 

2

V

Officers drove to the scene with red
light/siren. Decision: based on De-
partment procedure.

\\ L‘l'.

 

3

v

Officers met the complainant/
participants

~<:)‘_

 

4)

Officersnote the occurrence of the
felony

 

5

V

Officers investigate the setting.
interview the participants to ob-
tain a completeypicture of facts

/

 

Decision: based upon the nature of
complaint, behaviour of participants,
& legal right toyproceed

 

 

6)

Officers arrest the offender. De-
cision: based on the nature of the
complaint. behavour of participants,

 

 

legal procedures required. &
knowledge gained in step five. In-
volves discretion

 

7)

Officer advised the offender of his
rights. Decision: based on procedure

 

8)

Officers transport offender to station

 

9)

Officers charge the offender. De-
cision: based on factors in step six

 

plus the past criminal record of the
offender. Involves discretion.

 

10)

Officers book the offender. Decision:
based upon Department procedure.

 

 

ll)

Officers return to the car

 

Officers radio in-service.

 

 

 

 

 

 

 

 

 

12

 

 

 

 

 

 

 

 

 

 

 

107

FIGURE 7

 

8 AHVWNDS
HSHWDN HSVD
ANOTSJ
BSVD JO HdXL
SLVG
8 V mONIDSHd
‘LdHG HDIqu
NVLITOdOHLBW
LHVHD
SSHDOHd LNHGIDNI
dHLS
HDVS JO
NOILdIHDSHG

 

 

 

 

 

HHHWHN JELS

NOILVHHdO

NOILVLHOdSNVHL

HDVHOLS

NOILDEdSNI

‘NIN NI HWIL

‘—7

EGVW NOISIOHG
LNIOd NOISIOHG

GHATOANI—NUIIEHUSIUH'

 

1)

Officers received run - a felony

 

2)

Officers drove to setting, possibly expediting.

 

Decision: based on the policy/procedure of the
dept.

 

3)

Officers meet the complainant(s)

 

4)

Officers note the complaint as indicated by the
complainant.

p—Oe

 

5)

Officers carefully look over the scene to de-

 

termine exact nature of the offense.

 

Decision: based on the nature of the complaint:

 

investigatory type of decision.

K

 

6)

Officers note the facts learned.

 

7)

Officers complete a felony report.

 

Decision: based on the following factors: nature

 

of the complaint, behavior of the par-

 

ticipants, facts learned through in-

 

vestigation, department procedure, pre-

 

vious local court opinion, available

 

resources .

 

8)

Officers returned to the car.

 

9)

Officers radioed in-service.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1(38

FIGURE 8

 

HLVU

(LSHHHV)
HONVHWHGSIW
SSVD JO HdKl
dHLS
HDVH JO
NOILdIHDSHG

LHVHD
SSSDOHd LNSGIDNI

D AHVWNHS
HHHWIN SSVD
8 V LONIDHHd
'Ldflfl EDITOd
NVLITOdOHIHW

 

 

 

 

 

HHHNDN (13.1.3
NOILVHEdO

NOILVLHOdSNVHL

SSVHOLS

NOILDHdSNI

'NIW NI HWII

3

GHATOANI’NOIIHH531U'

SGVW NOISIOHG
O .

 

1)

Officers received the run or were on patrol

O

 

and received or noted the misdemeanor

 

violation.

 

2)

Officers drove to the setting or entered

 

situation. Decision: according to the pro-

“~mcrwr’y

 

cedure of the department (or according to the

 

nature of the incident). Possible discretion

 

if it is an observed misdemeanor.

 

3)

Officers investigated to determine the facts of

OR

 

the offense. Investigatory decision determined

 

by the nature of the incident.

 

 

4)

Officer arrested the offender. Decision to ar%

 

rest based on the following: nature of the co

/0

 

plaint, behavior of the offender, complainant

 

and/or bystanders, procedural requirements,

 

facts learned in (3) above.

 

5)

Officers transport the offender to the station.

,Ar’

 

6)

Officers decide on charge. Decision: based on

 

above factors in (4), as well as the past

 

record of the offender.

 

 

7)

Officers search and book offender.

 

Decision: procedural

//7

 

Officers return to the car.

 

Officers radio in—service.

 

 

 

---------------- T o T A L s ------—--------——

9-6

A

 

 

 

 

 

 

 

f

 

 

109

FIGURE 9

 

amva
dSLS

G AHVNNHS
HDVH JO

NOILdIHDSEG

 

HSVO JO aaxm
LHVHO
SSHDOHd LNHGIDNI

HONVHWHGSIW

HHHWDN HSVD
8 V LONIDHHd

'LdSG HDIqu
NVLITOdOHLHW

 

 

 

 

 

HSBNDN dHLS

NOILVXHdO

NOILVLHOdSNVHL

SSVHOLS

NOILOHdSNI

'NIN NI SNII

SOVW NOISIDHG
LNIOd NOISIDHG

GHATOANI NOILHHDSIG

 

1)

Officers received run; a misdemeanor complaint

 

2)

Officers drove to the setting.

 

Decision: procedure of the department.

 

3)

Officers met the complainant(s)

 

4)

Officers noted the complaint: a misdemeanor

.0 OK

 

offense.

 

5)

Officers inspect the setting and/or interview the

 

complainant to obtain more information.

Q

 

Decision: Investigatory in nature based on type of

 

complaint, and behavior of complainant.

 

 

6)

Officers took a misdemeanor report.

 

Decision: Discretionary type based on the nature of

 

the complaint, behavior of complainant,

A/JO

 

offender and/or bystanders, the facts

 

learned in (5) above, department pro-

 

cedure, and the laws relating to the re-

 

porting of such an offense.

 

7) Officers return to the car.

 

8) Officers radio in-service.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

llO

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

FIGURE 10
O :2 U “U H *3 UUU
a: r b 7: 8:: 2: U m g a rqham
m a m a m m n o m r30 H H 0(30
mgmmOhr-JH m'flm m'uz HZKHHH
H H70 U H O for?) m U) m [11 mmrn
2 m 0 z (30(3m m m w a 8 a w Pinfi
:n E z "1 O ngnza 'U > H z 0 n1 :4 OCDO
K H a > O a gr3 :n E 0 2 2:52
w t4 n t1t*w m #4 a e
m b: ts > > ijvaT: H m<D > C) #4 z Eigrd
w m 3H w 0 m2 r—3 m o )H E
w w .a 8 z a s *2 a an.
m )2 537‘
to <
m )5
1) Officers received run or observed the offense. K\‘ *
2) Officers drove to setting. 2) *
Decision: based on procedure of the department. //
i
3) Meet complainant. (_)
4) Officers note the complaint. <:> *
xi
5) Officers ask questions to determine more facts (e.g., ~\J
the identity of the offenders). *
Decision: Investigatory decision based on the nature of
the complaint. and the behavior of the com-
plainant. (Discretion is exercised as to 4L
whether to proceed.) é *
6) Officers took juvenile offense report, or sought out (:)
offenders immediately. * *
Decision: involving the exercise of discretion based on .
factors listed on attached sheet. \
7) Officers return to the car.
8) Officers radio in-service.
------------------------ T o T A L s—------------—---—-—-—- 6 0 o - 3 3 l

 

 

 

 

 

 

 

 

 

 

 

llil

FIGURE 11

 

SLVU
dHLS

HDVH JO

3 AHVWWDS

LHVHD
SSHDOHd LNHGIDNI
NOILdIHDSHG

HDNVHHDLSIG
SSVD JO Sdll

HSHWDN SSVD
8 V LONIDSHd
'LdHG EDITOd
NVLITOdOHLHW

 

 

 

 

 

HBHWDN dHLS

NOILVHHdO

NOILVLHOdSNVHL

SSVHOIS

NOILDHdSNI

‘NIW NI HWIL

HGVW NOISIOHG
lNIOd NOISIOHG

HATOANI NOILSHDSIG

 

1)

Officers received run; a disturbance.

 

2)

Officers drove to the setting (possible expediting)

 

Decision: based on the department policy/procedure.

4.

 

3)

Officers enter the scene; meet the complainant and

Q

 

offender (usually): note any bystanders present.

 

4)

Officers note the complaint or dispute.

 

1.—

 

5)

Officers ask questions, or seek possible weapon, etc..

 

to determine exact nature of the complaint.

 

Decision: based on the nature of the complaint and on

 

the behavior of the participants; investiga-

 

tory in nature.

 

6)

Officers note their legal position and explain it to

 

the participants. offering any possible solutions to

 

the dispute.

-_,..—-o,_—~+—+~ ~— «00

 

Decision: Discretion exercised depending on the nature

 

of the complaint, behavior of participants,

 

policies/procedures/local court opinions,

 

prosecutor's requirements, knowledge of the

 

participants personally.

 

7) Officers return to the car.

Q)

 

8) Officers radioed in-service.

 

 

 

-------------------- T o T A L s --------------——-----

 

 

 

 

 

 

 

 

 

 

 

lfilZ

FIGURE 12

 

HIVU

9 KHVWNHS
dHLS

HOWE JO
NOILdIHOSSO

HHHWHN SSVD

HSVD JO SdLL
'LdHG HDITOd
LHVHD
SSEDOHd INHGIONI

8 V LDNIDHHd
NVLITOdOHIHN

LNHGIODV OIHV

 

 

 

 

1‘

HHHWHN dSLS

NOILVHHdO

J

NOILVLHOdSNVHL

HDVHOLS

NOILOSdSNI

;

'NIW NI HWII

HGVW NOISIDHG

:7

LNIOd NOISIDHG

GHATOANI NOILHHDSIQ

 

1)

Officers received the run; an auto accident.

0

 

Decision: how to proceed to the scene; determined by

 

procedure based on the run (injuries).

 

2)

Officers drove to the setting.

 

3)

Officers view the accident; the extent of damage.

 

Decision: to determine what help is required (ambu-

‘\\{:]

 

lance, tow truck, accident investigation unit) based

 

on administrative procedural requirements in line with

 

the observed facts. This involves discretion based on

 

the nature of the incident the equipment available.

x

 

4)

Officers meet the complainants.

 

5)

Officers take an accident report.

00

 

Decision: based on the procedural requirements and

 

on the law.

 

 

6)

Officers issue summons or ticket to offender.

 

Decision: to serve summons, give ticket or arrest:

 

based on nature of incident, behavior of

‘—MM#,A<:>n.

 

those involved, administrative & procedural

 

dictates, previous local & possible Supreme

 

Court decisions and temperament of officer

 

(involves discretion).

 

7)

Officers return to car.

0'

 

8)

Officers radioed in—service.

 

--------------------- T o T A L s—-----—----—-———------

 

 

 

 

 

 

 

 

 

 

 

113

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

FIGURE 13

*3 U E. U U) a P3 ggg
g E :3 :v g 8:: n m #30 g +4 be ncvm
m w a m m H O m m'o :z z 2 thn
In m m m 0 r*e U m m n wtn m m m s: cnuam
m +4 H h+w n1 6 m g: 8 ha v hiHra
2°33 83802233 ‘3...“ zewOE‘EESS
w E < e 3:» r 3 E:« 6 § a o
*< H O Ut‘w'o 9 H U10 3’ O H 3 7'02.

w o v y mHew o mz a m o H So
:1: t!) E; m are 0 z w H z 2 UHH
w m > r) o - snag?

a m - z m 2

H m 0
O U) L“
AZ; <
m
U

1) Officers were on patrol and viewed the offense. (A) *
Decision: whether or not to stop the offender or to
ignore the violation; involves discretion based upon
available resources (i.e., what the men are doing at
the time, their ability to catch the offender and how
busy they are or expect to be), upon the procedural ‘
and administrative requirements based on the type of E

. . ‘T
offense and on the superVisory dictates (whether they
are "down" on tickets). * *

2) Officers stopped the offender. (:>

3) Officer checked the license and registration. I I * *
Decision: based on the procedural requirement.

4) Officers served him with a ticket for the offense. (;> *
Decision: what action to take towards the offender: * *
whether to serve a ticket, merely warn the offender,
or to arrest him. This involves discretion based on
the nature and severity of the violation. the de-
meanor of the offender and members of his group, pro—
cedural/administrative requirements, knowledge of the
offender. officer's need for a ticket based on the
supervisor's requirements, and on personal whims.

5) Officers resumed patrol. \.>

———————————————————————— T o T A L s ----——--—-—-----—--— 5 4 - - 3 3 2

 

 

 

 

 

 

 

 

 

 

 

114

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

FIGURE 14
H 6 COD
(3 a D m 2 U m g a mrnH
m > p a 8:: 0 o m #30 _ :4 H 0(vm
m p re tn H m *U m m'u z (n z '? F4F40
E m m m a re 0 a 0 mm m ._3 on E23 mono
E W H him tn m m g 28 O 'o +«r4g
2 H 0 2 00031 '0 D1 H 2 g m H 00
m g g; rd 0 Uigir > 3 gta m f) :z ZEZH
K1 '-3 3’ g H v-3 O '-3 O
m o oraw'u H 5:: y a: +4 2 7 2
H n: > » nanaw o n12 *3 o H 538
:U (1) 3+3 0 2 it! H 2 Z UHH
m p r) o - tn2:§
w - z m z a
(n O
m t"
<
m
U
1) Officers received run to a fire. <:>
Decision: Method of proceeding to the scene, based on
Departmental procedures.
2) Officers drove to the scene using red light/siren )3 k
3) Officers met the complainant
4) Officers determined the cause of the fire. ::J **
5) Officers take a fire report. Decision: Based on the <:>‘ 1) *‘*
nature of the incident, procedures of the Department,
& extent cause is known.
6) Officers decide to re-direct traffic. Decision: based <:> * * *
on the nature of the incident and Department pro—
cedures. Discretion is involved.
7) Officers returned to the car. ;3
8) Officers radio in-service. <:)
------------------------- T o T A L s—-----—--—----------— 8 5 l 4 4 2

 

 

 

 

 

 

 

 

 

 

 

115

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

FIGURE 15
O H :3 U "U H I-l DUO
m 3’ z > :3 823 z D m g H samba
m L. "U '-3 m m 0 O m 60 H H 000)
E to c tn m (a bra H m "a m m'u z tn 2: E Pdkifl
w H k+w U ta 0 otn m a m (naaw
["1 0 Z 00 t"! m m 50 g 8 O 'u HHS
m E U "1 o vagraa w > H 2 g m H C30
I-< H3 :11 O :3 EH DU 0 Z ZZH
w *0 g tari> m H *3 o *5 o
Q tn m p thiw'u H wca > In H 2: E232:
w x U) are»aw o n12 Pa O H
m m > C) 2 m H :z z tJH+4
o w - z n O - migg
Z m Z
(n O
m b
<
m
U
1) Officers received run to an injured person <:)
Decision: Method of driving to scene — procedure \\ *
2) Officers drove to the scene. i: *
3) Officers meet the complainant/victim <;)
4) Officers inspect the injury - victim ! I * *
Decision: must determine that injury is real - the 7
nature of the emergency. Discretion is involved,
based on the nature of the incident, procedure, A
availability of equipment. demeanor of participants
5) Officers call for ambulance (:> *
6) Officers make follow-up investigation, Decision <:) * * 7
based on the nature of the incident — the determined
cause of the injury. Discretion is involved based ‘
largely on factors in step four. -
7) Officers take an injured person report. Decision: <:) * *
based on the nature of the complaint. procedure and
action requirements, e.g. involvement of public space
or public transportation to hospital.
8) Officers return to the car. 0
9) Officers radio in—service. <:)
------------------------- T O T A L s ——----—---——---—-——- 9 6 2 l 4 4 2

 

 

 

 

 

 

 

 

 

 

 

AVERAGE NUMBER OF DECISIONS IN THE

DIFFERENT TYPES OF INCIDENTS

Type of Incident

 

Incidents Involving
Culminate In An

Incidents Involving

Arrests)

Incidents Involving

Which,Culminate

Incidents

Involving

(No Arrests)

Incidents

Incidents

Incidents

Incidents

Incidents

Incidents

Involving

Involving

Involving

Involving

Involving

Involving

FIGURE 16

Felony Complaints Which
Arrest

Felony Complaints (No

Misdemeanor Complaints
In An Arrest

Misdemeanor Complaints

Juvenile Complaints
Disturbances
Automobile Accidents
Traffic Violations
Injured Persons

Fires

116

Average No.
of Decisions

 

.25

.41

.25

.86

.OO

.10

.40

.92

.28

.33

117

that is, where strict guides are laid out for the officers'
actions. Examples may be drawn between felony complaints
(no arrests) and auto accident incidents, or between felony
arrest and misdemeanor arrest situations.

It was noted that discretion is involved in all inci-
dents in some form. Figure 17 reflects these differences
among the types of situations. Basically, discretion ap—
pears to enter into the areas of decisions to investigate
and actions to be taken against offenders. Those incidents
involving less than one discretionary decision appear to be
those complaints which are procedurally clear, or programmed,
and little decision—making is required. Yet if there are
only two decisions per incident in which discretion is in—
volved, what is the basis of the remaining range of de-
cisions which are ready by the officers?

It was found that all the decisions made could be
classified into five key types, to allow for explicit defi—
nition and distinction of discretionary actions by officers.
These include programmed, investigatory, operational, dis—
cretionary, and charging decisions.

Programmed decisions refer to those judgments in
which the pattern for the choice is pre-determined by the
law, police procedure as set by the department, administra—
tive or supervisory regulations, or unrecorded informal but
accepted procedures, or a combination of these factors.
Little or no discretion is involved in the programmed choice.

Rather, the decision is merely one to act in accordance with

118

FIGURE 17

NUMBER OF DECISIONS IN WHICH
DISCRETION IS INVOLVED
No. of Decisions

In Which Discretion
Type of Incident Is Involved

 

Incidents Involving Felony Complaints
Which Culminate In An Arrest 2

Incidents Involving Felony Complaints
(No Arrests) 1

Incidents Involving Misdemeanor Com—
plaints Which Culminate In An Arrest 2 (3)

Incidents Involving Misdemeanor Com—

plaints (No Arrests) l
Incidents Involving Juvenile Complaints 1
Incidents Involving Disturbances 1
Incidents Involving Automobile Accidents 2
Incidents Involving Traffic Violations 2
Incidents Involving Injured Persons 2

Incidents Involving Fires 2

119

procedure; that is, to ascertain the application of the pro—
gram. Examples of programmed decisions include the pro-
cedure or method of driving to the scene-—that is, whether

or not to utilize the red light and siren, as well as steps
such as the advisement of rights. In research, the scientist
must carefully ascertain and distinguish between habitual or
informally accepted response-decisions, and those which pre-
scribe to actual written policy.

Investigatory decisions are those made in order to
obtain more complete information about the complaint. These
may or may not involve the exercise of discretion, being
based both on "common sense" and accepted police procedures.
Yet the decision to investigate further may be influenced by
the nature of the complaint, its apparent validity, the be—
havior of the participants, and the legal authority of the
police to investigate, as well as the resources available to
the officers (e.g., time available). Investigatory decisions
then are made in order to obtain more information.

Operational decisions involve discretionary judgments
made during an on-going incident, to perform certain oper-
ations. Examples include the decision to give first aid to
the injured, to use physical force to prevent further attack
or escape, and to disperse a crowd. This discretional
judgment is based mainly on the nature of the complaint, and
the behavior and condition of the participants, though de-
partment policy and accepted procedures may well influence

this possible choice.

120

The discretionary judgment involves the decision to
take action, to invoke the process, or not to take action or
non-invocation of the legal process. It is most aptly il—
lustrated in the decision to arrest the suspected offender-—
a decision which marks the height of police authority and
discretion. The discretionary judgment is influenced by
many factors including the nature of the offense, the be—
havior of the participants, the legal and police procedures
required, the knowledge of the facts gained as a result of
investigation, previous local court opinion, the available
sources, officer's interest in the complaint, the present
whereabouts of the offender(s), the requirements of the
prosecutor in order to build a court case, the influence of
the setting (for example in a bar), and the officer's person—
al acquaintanceship with the participants.

Charging decisions refer to the decision made at the
time the prisoner is booked at the station. At this time, a
charge is recorded in the "blotter" or arrest book, and the
legal process is properly in motion. While this decision is
usually made at the time of the arrest, often the "learned"
facts had changed by the time the booking stage was reached,
and thus the charge was altered or the prisoner was released.
The charging decision is discretionary being based on exactly
the same factors as the "discretionary judgment" in addition
to that of the past criminal record of the offender.

Figure 18 illustrates the types of incidents in—

volving the police and the nature of the decisions involved

TYPE OF INCIDENT

10.

FIGURE 18

NATURE OF DECISIONS AMONG DIFFERENT INCIDENTS

DECISIONS

DISCRETIONARY

PROGRAMMED
INVESTIGATORY
OPERATIONAL

Incidents Involving Felony Complaints
Which Culminate In An Arrest

N
N
N
N

Incidents Involving Felony Complaints

(No Arrests) X X X
Incidents Involving Misdemeanor Com-

plaints Which Culminate In An Arrest X X X
Incidents Involving Misdemeanor Com—

plaints (No Arrests) X X X
Incidents Involving Juvenile

Complaints X X X
Incidents Involving Disturbances X X X X

Incidents Involving Automobile

Accidents X X X X
Incidents Involving Traffic

Violations X X
Incidents Involving Injured Persons X X X

Incidents Involving Fires X X X

121

CHARGING

N

122

in each. It is noted that arrest situations involve the
exercise of all the classifications of decisions, while the
”simplest" of incidents procedurally require, categorically-

speaking, a lesser range of decision types.

III . SUMMARY

In a basic but logically consistent manner, one
hundred incidents involving typical police actions were se-
lected and analyzed in order to determine the nature of the
decisions made and the discretion exercised by police
officers.

It was found that officers made five types of de—
cisions in field situations: programmed, investigatory,
operational, discretionary, and charging decisions. These
judgments were found to be based on similar factors to those
derived in the literature review. Figure 19 reflects those
influencing factors specifically illustrated by this
analysis.

It is necessary, however, not to merely amalgamate
the totality of the derived factors, but rather to group
like factors and to carefully define the nature and scope of
leach. These elements then shall provide the basis for the
derivation of an instrument to measure the factors which

influence "situational police discretion."

123

FIGURE 19

INFLUENCING FACTORS DERIVED FROM THE

ANALYSIS OF THE INCIDENTS

Nature of the Complaint

Nature of the Setting

Behavior of the Participants

Knowledge Gained Through On-The-Scene Investigation
Legal Authority of the Police to Investigate
Legal Procedural Requirements

Police Procedural Requirements

Local Court Opinions

Requirements of the Prosecutor For a Court Case
Available Resources (Time, Equipment and Manpower)
Present Location of the Offender(s)

Officer's Interest in the Complaint

Officer's Personal Knowledge of or Acquaintance with the
Participants

Past Criminal Record of the Defendent

CHAPTER IV

DEVELOPMENT AND UTILIZATION OF THE INSTRUMENT

I. OBJECTIVES OF THE INSTRUMENT

The goal of this study is marked by the development
of a research instrument to uncover the nature of "situ-
ational police discretion." This instrument is intended to
be utilized by the researcher who seeks insight into the
influential variables which affect the police officers' de-
cisions on the street. Yet the scope of this study implies
an eventual broader applicability of such an instrument.

If the rudiments of "situational discretion" are un-
covered, to that extent the adequacy and nature of the
authority of the officer can be adjudged. Furthermore, a
foundation for possible training in discretion might well be
established, based on the possible knowledge revealed by
this instrument's interpretation of the influences upon
police discretion.

Upon comparison among the various lists of factors
uncovered by the literature review and field analysis, it
was determined that the list derived from the actual litera—
ture analysis encompassed all the factors developed else—

where in this study. This list then was renumerated so that

125

a total of sixty—four possible influencing factors are uti—
lized (see Figure 20).

It must be realized that no amount of field research,
nor review of previous studies, could hope to uncover all
the possible influencing factors which might affect a police
officer's decisions. Thus it must be readily admitted that
this list is not exhaustive, and any instrument to be de—
signed must be "open" so that any additional factors which
develop might be utilized.

The instrument must as well be applicable to actual
police situations. It must be based upon first-hand
knowledge with as little "pre-interpretation" as possible.
The instrument must attempt to analyze facts of actual
action, rather than abstraction. For these prerequisites,
the observation method of study was chosen as the mode for

the research design.

II. THE RESEARCH METHODOLOGY

As indicated, the heart of any research is the
measuring instrument for gathering the data. While obser-
vations of particular soical behavior are of little value if
they do not include an adequate description of the larger
social atmosphere or unit of activity, the research instru-
ment allows for systematic viewing, for consideration of the
phenomena in a perspective with relative frames of reference.

The scientific value of a fact depends on its con—
nection to other facts, and in this connection the

126

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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128

most commonplace facts are often precisely the most
valuable ones.

- W. I..Thomas162

Yet this research is a focus on the operational de-
cision making of police officers in an effort to portray the
characteristics of and influences upon discretion. The
nature of this focus is so very broad, being affected by
such a wide latitude of possibly unaccountable factors, that
this particular study can only hope to be formulative or ex—
ploratory in nature.

The emphasis throughout has been on the discovery of
factors-—of ideas, and therefore a fairly flexible research
design is required to consider the many different aspects of
the phenomenon of police discretion. Yet a research design
proposes to arrange "the conditions for the analysis of data
in a matter that aims to combine relevance to the research

"163 Thus a standard ex-

purpose with economy in procedure.
ploratory research method has been adopted whereby all re-

lated literature was reviewed, officers in the field were in—
formally interviewed, and actual situations were analyzed in

some detail.164

 

162Pauline V. Young, Scientific Social Surveys and 52‘
search (Englewood Cliffs, New Jersey: Prentice—Hall, Inc.,
1966) fourth ed., p. 3.

163Claire Selltiz, Marie Jahoda, Morton Deutsch,
Stuart W. Cook, Research Methods 12 Social Relations (New
YOrk: Holt, Rinehart & Wilson, 1965), p. 50.

164Ibid., p. 53.

 

 

129

The proposed instrument must consider facts which
are physical, mental or emotional occurrences. Backstrom
and Hursh in their work, ”Survey Research," note that depth
interviews are probably most fruitful to uncover the
influences on decisions, while participant observation best
allows for the determination of how decisions are made.165
Thus a method of participant observation, boosted by informal
interviewing on the job, has been selected for the proposed
instrument design.

By utilizing actual case studies, the researcher can
get at the behavior directly. These observations, being
summarized in a standardized fashion, will lead to new in-
sights as well as provide a foundation for later testing by
other techniques.

It must be emphasized that the quality of research
is especially dependent upon the fruitfulness of the measuring
devices employed. A good measurement procedure must be valid
and reliable; that is, it must measure what it is supposed to
accurately and must be able to produce similar results when
repeated under the same conditions. In addition, the
measurements must be distinct or fine enough to achieve the
intended purpose.

Differences in scores should reflect true differences

in the characteristic being measured. Differences due to

 

165Charles H. Backstrom and Gerald D. Hursh, Survey

Research (Northwestern University Press, 1963), pp. 24—26.

130

transient personal factors, to situational factors, to re-
search sampling procedure, to mechanical factors, or factors
in the actual analysis, on the other hand, must be explicitly
clarified.

The nature of a decision-making study wherein in-
fluences are to be determined and measured, indicates that a
fairly large sample of incidents will be required to ensure
any accurate or reliable determinations. In addition to
size, however, the sample must be representative of all
types of police situations. It must be realized that basi-
cally three factors determine the sample size: the degree
of similarity among the characteristics (homogeneity), the
number of categories to be extracted, and the precision or

166 Theinstrument then must

degree of confidence required.
provide the foundation for the efficient organization of a

large volume of data, based on logical interrelationships.

III. THE OBSERVATION METHOD

Observational techniques make possible the recording
of behavior as it occurs. Yet there is a distinct subjective
aura about the nature of this methodology in research. Par—
ticipant observation is suggested as a scientific technique
in this study in that it serves a definite research purpose,
is based on systematic planning, all in addition to being

recorded in an organized fashion in the derived instrument.

 

166Ibid., pp. 4-6.

131

Close supervision of the field observers would be required,
however, to insure valid and reliable observations.167

It must be realized that the observatory survey
method contains many characteristics which may limit the
validity of any resulting data. Specifically, the obser-
vations must be independent of the ability or willingness of
the officers to reveal their decisions. Certainly some
officers may attempt to create impressions, and yet, in the
experience of this author and others who have studied field
police activity, the demands of most enforcement situations
are such so as to override any artificiality imposed by the
officer.

Yet the participant observer is limited by the
methodology. It is impossible to predict the spontaneous
occurrence of events within any situation to allow for abso-
lute complete observation. The duration of events is most
often particularly brief, and thus few specific observational
techniques may be applied. In addition, the personal atti—
tudes of the observer, his mood, state of fatigue, health,
mental set, and distractibility, are transient uncontrollable
factors. And yet, this method relies heavily upon the in—
terpretative ability of the particular participant observer.
The constant emphasis in applying the instrument to be de—
rived then, must be on the systematic recording of police

actions, especially insofar as the goal is to observe typical

 

167Claire Selltiz et al., Qp. Cit., Chapter VI.

 

132

cases. All of these, however, will be to some extent in-
fluenced by the officer's reactions.168

Unstructured participant observation here deals with
the viewing of complex police incidents, each of which inv
volves a group of interpersonal actions by the participants,
based upon a number of specific interrelated facts. The
facts range from the complaint through to the basis for ar-
rest or other police action. Thus the observer utilizing
the instrument must note the participants, their condition.
and behavior, the setting, the purpose that has brought the
officer and citizen together, and the inter—social behavior
in order to determine what actually occurs and the duration
of the interaction. Each of these factors must be carefully
specified within the actual instrument.

While the observer must not become too involved with
the police community or the particular officers, so that
their actions are taken for granted, the participant role
can be utilized to enhance the "naturalness" of his position.
Most often, he will gain the friendship and respect of the
officers and be taken for a plainclothes officer in any situ—
ation by the citizens involved. Through such active obser—
vation, more factors within each incident will necessarily
be revealed. In addition, the close interaction involved
will allow for the indicated informal interview—conversations
from which the researcher can relate the observed actions to

the officer's values and exercise of discretion.

 

Ibid., pp. 59, 202—204.

 

133

With so many factors bearing upon the operational
police decision, this tool can indeed by very useful so long
as the researcher is careful to qualify any possible con-
clusions to be drawn. While it has been emphasized through—
out this discussion that any method which incorporates un-
structured observation is restricted by the bias' and in-
terpretations of the researcher, the choice of such a method-
ology is dictated by the very nature of a topic such as

"situational police discretion."

IV. THE INSTRUMENT

The crux of the research problem of "situational
police discretion" lies in the interaction between the
numerous factors influencing the exercise of discretion and
derived from this research analysis (see Figure 20) and those
acts performed by the police officers which reflect these
decisions. Thus, observed police actions become the de—
pendent variable while the "measured" influencing factors
are the dependent variable.

In this sense, the two variables might be measured
along two axes. However, it is important to note that the
sequence of police actions is important in reflecting both
the nature of the influence, as well as the technical and
legal detail involved. For example, in a situation wherein
a suspect confronting the officer has an apparently sus-
picious bulging pocket and the officer searches, finds a

weapon, and arrests the offender, the sequence of each of

134

these acts is important. The arrest legally must precede
the search. Did the mere finding of the weapon lead to the
officer's arrest decision, or did the arrest precede the
search so that other factors were responsible? To account
for this determination of sequence, each comparison drawn
along the two constructed axes of police actions and in—
fluencing factors must be numbered in order of occurrence.
Based on these requirements, an evaluation instru—
ment was designed. In view of the need for a large sampling
of incidents, it was determined to develop an instrument
adaptable to computer programming. This would facilitate
the analysis as measured by the intended instrument, as well
as reducing the research calculation time immeasurably.
Using a basic computer data coding form, consisting
of graph-like squares (30 squares by 80 squares) as a model,
two axes were established. The vertical axis represents
some thirty possible police actions which allow for any oper-
ation which the officers might perform within any single
incident (see Figure 21). The horizontal scale represents
the sixty-four influencing factors derived from the analysis
within this research (see Figure 20). The form also con-
tains pertinent identification information: precinct, date,
times, type of incident (according to the ten pre—established
categories in the analysis of the incidents) and incident

number (see Figure 22).

KOCD\IOWU'|bLONI—'

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135

FIGURE 21

Police Actions

 

mobilized

entered situation

met complainant/com. gp.
met informer/inf. gp.

. met offender/off. gp.

met bystander(s)

noted complaint - F.M.J.D.T.A.Fi.I.
investigated by inspection
investigated by interview

checked license/registration
re-directed traffic

gave first aid/comforted

used physical force to subdue/restrain
used phySical force for protection
performed other operation
arrested for specific offense
arrested for investigation

issued ticket

took a formal report
reprimanded/warned

suggested other agency/action
arbitrated/counselled

used "cool—out" technique

did

advised offender of his rights
searched offender

transported offender/called wagon
booked offender on original charge
booked offender on final new charge
returned to service/patrol

 

 

136

FIGURE 22
MICHIGAN STATE UNIVERSITY'

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138

Due to the nature of this instrument in terms of
size and detail, it was determined for practical reasons
that an observer riding in a patrol car would require a
brief smaller form, but one which would keep his attention
on the particular factors sought. Thus a companion Incident-
Decision Chart was designed (see Figure 23). This lists
vertically the thirty police actions in similar fashion to
the coding sheet. There are additional vertical columns,
however, for step number, specification of each step and
times, decision made and discretion involved columns, and in—
fluencing factors column, and pertinent identification areas
for precinct, date, type of incident, and incident number.
Attached would be a list coding the influence factors
numerically.

It is intended that the Incident-Decision Chart
would be utilized by the researcher in the car to record
each situation. Each incident would then be summarized on

the coding sheet according to the following methodology.

V. USE OF THE INSTRUMENT

The following paragraphs constitute complete in-
structions as to the application of the derived research

instrument.

Method of Observation

The research observer is the key to success in the

application of this instrument. While the basic theory of

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141

observational research has been discussed, several particular
factors deserve re-emphasis.

The researcher in a police car is called upon to
carefully and objectively observe and report complex events,
that is, emotion-packed street incidents involving inter-
action between law enforcement officers and citizens. These
events and the police decisions made within each, are the

focus of attention in this study.

Each incident is made up of a number of different
factors, all of which will quite naturally be interpreted
differently by the citizen, the police officer(s), and by
the research observer. Therefore it is extremely important
to carefully distinguish between fact and inferences. The
observer must only report facts. In addition, it is impera—
tive that he have clearly in mind the definition of terms
used throughout the report, as pre—established in this re—
search (see Figure 24). To assist in complete observation,
several specific aspects of each situation must be carefully
noted mentally by the observer. These include:

— the definition of the situation by the radio dispatch

— the response of the officers to the dispatch

— the setting of the situation

— the arrival of the police; their initial actions

— the citizens involved, their state, description, and
roles

— the bystanders involved, their state, description,

and roles

142

FIGURE 24

Definitions of Terms**

General role refers to the capacity in which the person is
acting in the situation. Typically, persons who have con-
tact with the police do so as "private citizens," but school
principals ("public official") call about school problems,
businessmen about troublesome customers, etc.

Manner: Consider the general manner of each participant.

Specific Roles: Classify the participants in the situation
according to the following definitions:

 

 

Complaint -- the person(s) who wants police action
in response to what he or they see as an "offense”
of some kind, e.g. a man whose car is stolen, or a
woman who complains about teenagers in the neighbor—
hood. The fact of a known offense, does not, of
course mean a complainant is necessarily present in
the situation.

 

Offender -— the person(s) who is seen as "out of
line" or as a possible violator of some sort in the
situation, e.g. a person accused of shoplifting or a
man seen as an irresponsible husband. "Offender" is
a sociological, not a legal category for these
purposes.

victim -- the person(s) who needs or requests help
from the police in a situation that does not involve
an offense, e.g. a sick person, or a mother of a
missing child. A victim of a violent crime should

be classified as a complainant, even if his condition
is such that he can't communicate.

member of complainant grou -- the person(s) who sup—
ports or stands with the complainant(s). Do not in-
clude mere bystanders who are sympathetic, e.g. mem-
bers of a group of tenants who protest a loud party.

member of offender group —- the person(s) who sup-
ports or stands with the offender(s), e.g. a group
of rowdy boys in the street.

member of victim group -— the person(s) who supports
or is concerned about the victim(s). Typically this
category will be used for designating fellow family
members & friends of sick or injured persons.

 

143

informant -- a person(s) who gives information rele—
vant to the nature of a situation, but who does not
support or stand with any of the central partici-
pants. Do not include mere guides here, since their
information has to do only with where situations are
rather than what situations are.

 

bystander —— a person(s) who is nothing more than an
onlooker and who would not be there if there were

no situation requiring the police. Place mere
guides in this category.

 

Police Actions refer to the list of operations indicated in
Figure 21.

Manner of Police behavior: be sure to think of the officers'
behavior as well as actions.

Offenders taken to the station: Complete this lay-out as
much as possible, depending on how much of the process you
actually observe. Sometimes the offender will be taken to
the station in another vehicle, and only the pre-station
interview will be seen. In such a case, fill out what you
can of the 'charts'.

Log Entry: If a log is used, ask if you may see it if it is
not visible to you.

**Figure 24 is extracted from the "POLICE OBSERVATION REPORT
INSTRUCTIONS," issued to observers by Dr. A. J. Reiss, Di—
rector of the Center for Research on Social Organization,
University of Michigan, 1966.

144

- the facts of the situation
- police actions (decisions made) in terms of:
formal or official action
informal use of power
informal action
suggested further action
physical service
"cool—out"
miscellaneous activities
While this list appears exhaustive, with a little experience,
an amazing amount of detail can be noted very quickly.

It was indicated that the researcher should conduct
an informal conversation-type interview with the officer(s)
while riding on patrol. This will serve to enlarge the
reference-foundation of knowledge of the observer about the
particular officer, his precinct, and the department.

While the function of the informal interview is to
focus attention upon the occurrence, its causation and ef—
fects, the manner and timing with which the questions are
asked are left largely to the interviewer's discretion. He
has the freedom to explore reasons and motives and to probe
further in directions that might be perhaps unanticipated.

While the interview is to be focused over a broad
area, it is definitely informal in nature. The interviewer-
observer must attempt to extract all the possible factors.
At the same time, he must be wary of the officers merely

learning to respond with simple or easy answers, or

145

responding in accordance with categories which they think are
particularly of interest to the observer. Further, the ob—
server must be cautious of particular gripes which recur
often as the officer tries to honestly reinforce his com-
plaints relative to the system.

It must be emphasized that the interpretation of
factors by the officer is not of interest here, but rather
the mere existence of the factors as an influence. For ex-
ample, the focus is not the correct interpretation of a
Supreme Court ruling, but rather the observer is to determine
whether the officer feels that the ruling is an influence.

In other words, the officer's statements as to what he
actually thinks, is of interest.

A possible further bugaboo is the "I don't know" re-
sponse, in which the officer truly cannot verbalize why he
performed some action. Further probing is required, often
by careful "directive interviewing" to ascertain that the
officer actually does not know. Such a response should be
noted, its existence being in itself significant, although
it is not to be considered as an "influencing factor."

It is further expected that some of the responses
even after careful interviewing will be wrong or invalid.

For this reason, it is essential to handle a large number of
incidents so that occurring errors would not be so signifi—
cant as to adversely affect the study.

Specifically, the researcher should probe the general

characteristics of the officers and their territory. For

146

example, their perspective of the percentage ethnic compo-
sition, income level, nature of industrial and residential
areas, and particular trouble spots within the territory.
The officers' attitudes towards Negroes, other ethnic groups,
the Civil Rights Movement, towards demonstrators and
picketers, the heads of government, as well as health and
welfare agencies, and the specific courts, should be ascer-
tained through conversation. Other opinions as regards par—
ticular laws and legal procedures, towards political matters,
as well as towards precinct officials could also be solicited
so as to add to a judgment of the officer's value system,
his professional conscientiousness, and his intellect.

Generally, it will be found that the officers will
talk freely about the job, its needs and their experiences
and opinions, although the researcher must be careful not to
be given a false impression by the individual who tries to
feed the kind of information which he thinks the researcher
wants to know.169

The participant observer should learn to utilize
some forethought in his informal questioning by judging "How
will the respondent interpret this?" and "What does this

question actually mean?" He should express himself in simple

vocabulary, using limited, but legitimate jargon, avoiding

 

169W. M. Kephart,_gp.'git., p. 32. The author notes
"that the bugaboo of the non—valid response failed to ma—
terialize and it is believed that this will become self—
evident.

147

leading statements as well as subjective words. In this way,

objective unstructured observation will be achieved.170

Procedure With the Instrument

The observer should utilizing the Incident—Decision
Chart, commence writing with the receipt of a dispatch.

Here each step is numbered in the order that it occurs in
the situation. As well, specification notes or brief de-
scriptions of occurrences might be entered and times of
mobilization, arrival, and return in—service. Last, the
precinct, date, and type of incident should be noted on the
form. It is most probable that while riding in the car, the
observer will only have time to complete the Incident—
Decision Chart to this point (see Figure 25). Yet he should
carefully review his notations on the spot, referring to the
attached list of influencing factors, so that he can mental-
ly judge the basis for the officers' decisions and verify
this through on—the—spot conversation.

During breaks or immediately after the tour of duty,
each Incident-Decision chart must be completed. This is ac—
complished by numbering in order those steps where decisions
are made and discretion was involved. At each of these
points, the attached list of factors should be consulted,

and the coded numbers for each of those which seemed to

 

170See "Structured Questions" in P. Young, Op. Cit.,
p. 190.

 

148

 

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149

influence the decision should be entered beside the indi-
cated decision points (see sample, Figure 26).

At this stage then, the steps that occurred in the
incident will have been numbered according to the list of
police actions, each will have been elaborated upon in the
specification column, those involving decisions and the exer-
cise of discretion would be numerically indicated, and the
influencing factors would also have been noted by number.

The researcher now turns to the evaluation instru-
ment——the data coding sheet. Here at the intersection of
each police action involving a decision (as indicated by the
IncidenteDecision Chart) and each influencing factor corre-
sponding to the indicated code number, the decision number
should be recorded. Those police operations not involving
4 decisions would be indicated by a "O" in the non-decision
column on the Coding Form. Thus each incident can be com-
pletely transcribed onto the Coding Form.

The Coding Form then indicates the nature of the
factors influencing each type of police action requiring dis—
cretion. It must be realized that, based upon a maximum of
30 police actions, 80 influencing factors, as well as an
average of possibly 8 decision points in any situation,
there is a range of 80 x 30 x 8 equalling 19,200 possible
combinations of factors to be dealt with for any single inci-
dent. Thus a sampling of a mere thousand incidents could in—
volve some 19,200,000 factors, although this particular

figure would be extremely unlikely.

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151

Based upon this range of factors, and utilizing a
large number of incidents, a computer would be necessary to
perform the calculations. This would be accomplished by
punch cards transcribed from the Coding Form. Each card
represents a single police action and all the factors which
influence it. Thus any single card could conceivably contain
up to eighty factors, while an incident as recorded on this
Coding Form could require up to thirty cards. These cards
would then be run on a computer according to standard pre-

established programs to extract the desired information.171

VI. EXTRAPOLATION OF THE DATA

While the format of the research instrument lends
itself to many possible applications, several basic measures
can be extracted to determine the influences on "situation
police discretion."

This involves tabulation or tallying the number of
times any particular factor appears to influence a police
action. In this way, the influencing factors can be rank:
ordered and then compared with standard tests of statistical
significance.

Appendix II contains seven sample Incident-Decision
Charts constructed from the reports gathered during the

initial observation stage of this study. These provide the

 

171Daniel D. McCracken, A Guide 39 Fortran Programming
(New York: John Wiley & Sons, Inc., 1961), Chapters 2 and
3.

 

152

data for interpolation with the Coding Form and overlays for
the seven incidents, found in the envelope inside the rear
cover of the thesis. These overlays may be applied to the
Coding Form for interpretation. Based on this data, simple
calculations might be accomplished as follows.

The seven incidents are comprised of one juvenile
complaint, two misdemeanor-arrest situations, one misdemeanor
complaint, one felony arrest, one felony complaint, and one
disturbance. Each of the Incident—Decision Charts has been
completed according to the preceding instructions within
this chapter.

1 These charts were then applied to the Data Coding
Forms by transcribing the influencing factors in terms of
decision numbers. These Coding Forms become then the data
for all calculations.

From the Data Coding Forms, a count was made of the
number of times each factor was found to be influential in a
decision made by a police officer. This tally is pictorally
depicted in Figure 27, the bar graph of the influencing
factors. These graphs could also be drawn in terms of per-
centages rather than in response units, which would perhaps
more clearly illustrate the role or amount of influence of
each factor. Such a graph shows which factors were influen-
tial in decision making among the seven sample incidents.

The factors could then be ranked in order of their
influence upon discretion, taking into account any statisti—

cal measures applied (such as means or the average number of

153

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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m H wooemso macHomzzH mom ommz m
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nm_ Heszumzoo mo mmwev ezm>m one no mmpeaz H

 

 

 

mommo UmAmEmm co>wm UGOE¢ wuouomm wCHocmDHMCH one

 

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154

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

uuuuuu Immoeomm mmmeo mo
ozHZHame m.mmonmo em

m mozmHmmmxm m.mmonmo mo
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mommm>oo mzmz ezmomm om

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. mmmzmmmo mom oneoH>zoo ommcomm m>¢m om: mqmszHmo mmH25m oe ommz om
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omoomm monm = = mm

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mpsmem HmeHmms = = mm

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mazemHoHemmm mommzoe mmooeHeam = = Hm

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155

occurrences of the factors). The influential factors de-
veloped from this application of the instrument would pro-
vide the foundation not only for the analysis of operational
decision making, but also for the base from which we might

hope to predict ”situational police discretion."

CHAPTER V

CONCLUSIONS

Summary of the Research

 

This thesis has attempted to explore the problem of
situational police discretion in a quasi-explanatory manner.
The study was aimed at a specific social-cultural context——
the minority group areas in metropolitan cities. Yet the
social-temporal context ingrained within this focus, is
marked by the Civil Rights Movement, heightened by the ex-
treme sensitivity of both the community and the police, and
involves the initiation of a slow but vast police
reorganization.

While this thesis constitutes mere exploratory re—
search, a valid methodology was adopted, wherein the problems
underlying police discretion were carefully examined and de-
fined. One hundred cases, selected from a period of seven
weeks' observation in two of the highest crime rate areas in
the country, were charted and analyzed to specifically un—
cover where decision—making occurs, the nature of individual
decisions and decision-types, as well as indicating the
actual involvement of discretion. While the total sampling

of police incidents represents a "universe," the one hundred

157

incidents were classified into ten categories. At this
point, it was felt that the sample was really of inadequate
size, though it was an efficient tool from which the analy-
sis could commence.

One feature of the sample is perhaps atypical in
that it was drawn from a single period of observation at the
start of a hot summer, that is, a single particular season
or time of year. Yet with these limitations in mind, the
incidents utilized were certainly actual, unaltered situ—
ations of the type encountered daily by police officers in
this country. The analysis of the charts appears reliable
in that very similar patterns of action evolved. Although
empirically based, this analysis is definitely subjective.
It is completely affected by the interpretative abilities of
the author, his bias' and limits of observation and inter-
view. The types of decisions that evolved can then only be
validated in terms of their recurrence within the one hundred
cases.

The key to this thesis lies in the nature of the in-
fluencing factors that evolved both from the case analysis
and the review of the literature. While many of these might
appear obvious based on logical deduction, it is felt that
each of these factors has been validated by the research.

The instrument designed then, was based on the de—
rived factors, which influence discretion, and on a breakdown
of operations or actions performed by police officers in all

situations. It was indicated that to determine adequately

158

the relative influence of each of these factors, a fairly
large sample of incidents would be required. This would be
the first step in any continuation of this research.

Based on the above, the influencing factors and
police actions were adapted for purposes of efficiency, to
computerization by utilizing a simple Data Coding Form Model.
This model applied both the factors and the actions along a
tri—dimensional axis wherein the sequence of decisions would
also be revealed and related to both the influencing factor,
and the particular police action. It must be noted that the
design of the instrument allows for the addition of other
influencing factors which might be derived from further
study. However, careful definition of any possible factor
is extremely necessary. This model then allows for the an-
alysis of field police incidents in terms of the numerous
factors within the situation which affect the decisions and
exercise of discretion by the police officer.

It is hypothesized that this Coding Form would pro-
vide an actual measure of the role or amount of influence of
each of the sixty-four derived factors as they affect "situ-
ational police discretion." The methodology required to
validate this hypothesis has been described. It must be de—
termined then, whether each of these individual factors do
play a significant role in the use of discretion by the
officer. Can the researcher indeed get at all the factors

which might influence an officer's decision? While this

159

might appear doubtful, certainly most of the influences
should be derived if fine observation, probing interviews

and logical analysis were utilized.

Importance of the Research

 

It has been demonstrated that the exercise of police
discretion is clouded by many problems involving legal
authority, communication, the effects of organization, the
attempt to impose checks and balances by the prosecutors and
the judiciary, the intentions of the legislature, as well as
accepted police procedure and the demands of the individual
situation.

It is felt that the instrument developed within this
thesis provides a foundation with which to study the exercise
of discretion by the officer in the street. Such an exami—
nation should accomplish either support for the present inde—
pendence of the officer and his discretionary role, or il-
lustrate his lack of ability to impartially enforce the law.
Should the latter prove to be the most feasible conclusion,
then the role of the police officer must be completely re-
defined and limited according to the needs of the community
to be served. Should, however, the former conclusion be sup—
ported, then the community should respond by actively sup-
porting the police role and by establishing a more complete
and efficient legal basis for the maintenance of the present

status and authority of the police officer.

160

Recommendation for Further
Research

 

The instrument proposed might be adapted to several
modes of research. For example, the instrument could be
used to validly examine the decision-making process of a
single officer, or perhaps to compare a small number of
officers, observed over a long period of time. On the other
hand, a repetition of the observation study already ac—
complished, utilizing the instrument derived herein, might
also prove extremely fruitful, so long as a sufficiently
large sampling of incidents was achieved.

As indicated, the first step in any continuation of
this research would be an attempt to show the relative role
of each of the derived factors in influencing a police
officer's decisions. Yet it is proposed that the research
instrument developed herein might serve as a broader foun—
dation for study.

For example, it is evident that a number of social
problems have come to rest on the shoulders of our municipal
police agencies. It is realized too that these agencies
could and indeed must be considerably improved. Yet daily,
the brunt effects of society's ills are felt by the officer
in the street, and his patrol level supervisors. While these
men do not necessarily expect to command respect for the uni-
form they wear, or the individual within the suit of clothes,
there must be among the populace with which the officers deal

an honoring of the badge——the office of policeman. This

 

161

distinction is important in determining what the officer in
the street expects. It appears that it is this lack of an
established tradition of honoring the office rather than the
man, both on the part of the disobedient citizen, and on the
part of the at times over-demanding officer, which is sig-
nificant in determining the reactions of the policemen in
what are routine and relatively simple complaints. In terms
of this instrument then, can a base be provided which would
determine to what extent a man's reactions can be predicted
both by training and testing? This question involves quali—
ties of prejudice, harassment, and all of the sixty—four de—
rived situational factors. Yet in the split second decision,
the men respond. Are these quick decisions affected or af—
fected in retrospect by the influencing factors?

The police officer has been put on the defensive by
a combination of four important community factors: recent
local court interpretations, the actions of the prosecutor's
office, and recent press coverage and public opinion. These
elements affect his work in the street and his use of dis—
cretion. Yet is the effect of these factors so great as to
hamper effective law enforcement?

It was established in the review of the literature
that administrative checks can be utilized by command person-
nel to control the discretion exercised by patrolmen. It ap-
pears that through a lack of utilization of these checks-—a
lack of good supervisory practice—-that bad habits, over-

specialization, and other occurrences might well have

162

developed. Based on the role of the influencing factors,
which would be revealed by an application of this instrument,
could simple influences as well as particular training be
brought to bear upon the officer, so as to raise the visi-
bility of police discretion within the police organization?

Furthermore, through training can the frames of
reference of patrolmen be enlarged so as to include overall
community objectives. While this could only be determined
after the thorough application of this and similar instru—
ments, the question as to whether an officer can practically
utilize this knowledge of the total effect of his daily de—
cisions must be answered.

The above paragraphs have indicated the extremely
wide scope of problems and research required before we can
hope to deal with the problems that arise from the officer's
use of discretion. Yet it must be re-emphasized that while
these problems exist, a police officer whose authority and
role is defined by law and who is properly selected, trained,
supervised and supported by the community, can indeed validly
and reliably exercise wise decision-making power. Inevitably
such an application of "situational police discretion" will
not only enhance the aims of law enforcement, but also serve
to ensure that the simultaneous goals of the public safety
and the inherent respect for individual liberties will be
achieved. The officer's authority of individual judgment be-
comes then one of the most indispensible tools at his dis-

posal-—that is, police discretion.

BIBLIOGRAPHY

A. BOOKS

Backstrom, Charles H., and Gerald D. Hursh. Survenyesearch.
New York University Press, 1963.

Banton, Michael. The Policeman ip the Community. .London:
Tavistock Publications, 1964.

 

Bureau of Criminal Statistics. Watts Riot Arrests - Los
Angeles August 1965: Final Disposition. State of
California Department of Justice, June 30, 1966.

 

 

Earhart, Robert S. _A Critical Analysis 9f Investigator -
Criminal Informant Relationships ip Law Enforcement.
Master of Science Thesis, School of Police Ad-
ministration and Public Safety, Michigan State Uni-
versity, Summer, 1964.

 

Kephart, William M. Racial Factors and Urban Law Enforcement.
Philadelphia: University of Pennsylvania Press, 1957.

LaFave, Wayne R. Arrest: The Decision_tg Take a Suspect
Into Custody. Boston: Little Brown and Company,
1965.

 

 

Marshall, Geoffrey. Police and Government. London:
Methuen & Company, Ltd., 1965.

 

McCracken, Daniel D. .A Guide-t9 Fortran Programming, New
York: John Wiley & Sons, Inc., 1961.

Merton, Robert K., and Robert A Nisbet. Contemporary Social
Problems. New York: Harcourt, Brace and WOrld, 1961.

 

Neary, Matthew J. Motivating the Foot Patrolman. A Thesis
Presented to the Bernard M. Baruch School of Business
and Public Administration, City College of New York,
June, 1962.

Newman, Donald I. Conviction: The Determination 9f Guilt
.2£ Innocence Without Trial. Boston: Little Brown
and Company, 1966.

 

164

Preiss,.Jack J., and Howard J. Ehrlich. '53 Examination 9f
Role Theory: The Case_gf the State Police. Lincoln:
University of Nebraska Press, 1966.

 

 

 

 

 

Public Service Institute. Principles gf’Police Procedure.
Pennsylvania Valley Publishers, Inc., State College,
1955.

Royal Commission on the Police. Final Report. London: Her

 

Majesty's Stationary Office, CMND. 1728, May, 1962..

Selltiz, Claire, Marie Jahoda, Morton Deutsch, and Stuart W.
Cook. Research Methods_ip Social Relations. New
York: Holt, Rinehart & Wilson, 1965.

 

Skolnick, Jerome A. Justice Without Trial: Law Enforcement
gp.; Democratic Society. New York: John H. Wiley
and Sons, Inc., 1966.

 

 

Smith, Bruce. Police Systems lg the United States. New
York: Harper and Brothers, Publishers, 1949.

Stahl, David, and Fredrick B. Sussman. The Community and
Racial Crisis. New York: Practicing Law Institute,
1966.

 

Watson, Nelson A. (ed.). Police and the Changing Community.
' Selected Readings. Washington: International Associ-
ation of Chiefs of Police, 1965.

Whitaker, Ben. The_golice. Penguin Books, 1964.

 

Ybung, Pauline V. Scientific Social Survey§ and Research.
Englewood Cliffs, N.J.: Prentice-Hall, Inc., 1966.

B. PERIODICALS

Abernathy, M. Glenn. "Police Discretion and Equal Pro-
tection," South Carolina Law Quarterly, Vol. 14,
1962, 472-486.

Arnold, Thurman. "Law Enforcement," The Courts: “A Reader
and the Judicial Process (Editor, Robert Scigliano).
Boston: Little Brown and Company, 1962.

Barker, B. M. "Police Discretion and the Principal of Le-
gality," The Criminal Law Quarterly, Vol. 8, No. 4
July, 1966, 400—407.

Barrett, Edward L. "Police Practices and the LaWB-From Ar—
rest to Release or Charge," California Law Review,
V010 50’ NO. l, MarCh) 1962, 11-55.

165

Beral, Harold, and Marcus Sisk. "The Administration of
Complaints by Civilians Against the Police," Harvard
Law Review, Vol. 77, 1964, 499-519.

 

Breitel, Charles 0. ”Controls in Criminal Law Enforcement,"
University_gf Chicago Law Review, Vol. 27, No. 3,
1960, 427-435.

 

 

Brooks, Thomas R. "Necessary Force--or Police Brutality,"
New York Times Magazine, December 5, 1965, 60.

 

Cumming, Elaine, Ian Cumming, and Laura Eddell. "Policeman
as Philosopher, Guide, and Friend," Social Problems,
Vol. 12, No. 3, Winter, 1965, 276—286.

 

Dash, Samuel. "Cracks in the Foundation of Criminal Justice,"
Illinois Law Review, Vol. 46, 1951, 385-391.

 

Day, Frank D. ”Criminal Law Enforcement and the Free
Society," Journal 2f Criminal Law, Criminology, and
Police Science, Vol. 54, No. 3, 360—365.

 

 

 

Donnelly, Richard C. "Police Authority and Practices," The
Annals 9; the American Academy 2; Political and
Social Science, Vol. 339, January, 1962, 90—110.

 

 

jDougherty, Richard. "The Case for the Cop," Harper's Maga-
zine, April, 1964, 129-133.

 

Goldstein, Herman. "Police Discretion: The Ideal Versus
the Real," Public Administration Review, Vol. 23,
1963, 140-148.

Goldstein, Joseph. "Police Discretion Not to Invoke the
Criminal Process: Low Visibility Decisions in the
Administration of Justice," Yale Law Journal, Vol.
69, No. 4, March, 1960, 543—594.

Hall, Jerome. "Police and Law in a Democratic Society,"
Indiana Law Journal, Vol. 28, Winter, 1953, 133-177.

 

Hughes, Everett Cherrington. "License and Mandate," Men and

Their Work, Free Press of Glencoe, Illinois, 1 58.

 

Kadish, Sanford H. "Legal Norm and Discretion in the Police
and Sentencing Processes," Harvard Law Review, Vol.
75, 1962, 904-931.

LaFave, Wayne R. "Detention for Investigation by the Police——
An Analysis of Current Practices," Washington Uni-
versity Law Quarterly, Vol. 1962, 331—399.

166

"The Policeman and NOn-Enforcement of the Law,"
Wisconsin Law Review, Vol. 1962, 104—139, 179-239.

 

, and Frank J. Remington. "Controlling the Police:
The Judge's Role in Making and Reviewing Law En-
forcement Decisions," Michigan Law Review, Vol. 63,
April, 1965, 987—1012.

 

 

Lester, Ervis W. "Some Aspects of American Police Problems,"
Journal_gf Criminal Law, Criminology, and Police
Science, Vol. 40, 1950, 796-809.

 

 

Markowitz, Paula R., and Walter I. Summerfield, Jr.
"Philadelphia Police Practice and the Law of Arrest,"
University 9f Pennsylvania Law Review, Vol. 100,
1182—1216.

Mathes, William C., and Robert T. Jones. "Toward a 'Scope
of Official Duty' Immunity for Police Officers in
Damage Actions," Georgetown Law Journal, Vol. 53,
889—914.

Notes: "Uses of Vagrancy Type Laws for the Arrest and De-
tention of Suspicious Persons," Yale Law Journal,
Vol. 59, 1950, 1351-1364.

 

Parratt, Spencer D. "How Effective is a Police Department?"
The Annals pf the American Academy of Political and

Social Science, Vol. 199, September, 1938, 153-164.

 

Piliavin, Irving, and Scott Briar. "Police Encounters with
Juveniles," American Journal 9f Sociology, Vol. 70,
September, 1964, 206-214.

 

Pound, Roscoe. "Discretion Dispensation and Mitigation: The
Problem of the Individual Special Case," New York
University Law Review, Vol. 35, 1960, 925—938.

 

Remington, Frank S. "The Law Relating to on the Street De-
tention, Questioning and Frisking," Journal 2f
Criminal Law, Criminology, and Police Science, Vol.
51, December, 1960, 386-394.

 

Robin, Gerald D. "Justifiable Homicide by Police Officers,"
Journal-9f Criminal Law, Criminology, and Police
Science, Vol. 54, No. 2, 225-231.

 

Schultz, Leroy G. ”Why the Negro Carries Weapons," Journal
.2; Criminal Law, Criminology, and Police Science,
Vol. 53, 1962, 476-483.

 

 

167

Smith, Richard J. "The Use of Deadly Force by a Peace
Officer in the Apprehension of a Person in Flight,"
University pf Pittsburg Law Review, Vol. 21, 1959—
60, 132-141.

 

 

Tamm, Quinn. Editorial: "On the Bitterness of Molotov Cock—
tails," Police Chief, Vol. 33, No. 9, September,
1966, p. 6.

Vignola, H. P. "The Personality of the Police Officer,"
Interdisciplinary Problems_ip Criminology: Papers
.2f the American Society_gf Criminology, 1964, Ohio
State University, Columbus, Ohio, 1965, 101—106.

 

 

 

 

Walter, Robert H. K. "Comment: Some Proposals for Modern—
izing the Law of Arrest," California Law Review,
Vol. 39, 1951, 96—119.

Walton, Frank E. "Selective Distribution of the Police
Patrol Force," Journal of Criminal Law, Criminology,

and Police Science, Vol. 49, 1958, 165-171, 379-390.

 

 

 

Wesley, William A. "Violence and the Police," American
Journal pf Sociology, Vol. 59, 34-41.

 

Wilson, James Q. "The Police and Their Problems: A Theory,"
Public Policy, Vol. 12, 1963, 189-216.

 

Wilson, 0. W. "Police Arrest Privileges in a Free Society:
A Plea for Modernization," Journal_pf Criminal Law,
Criminology, and Police Science, Vol. 51, 1960, 395-
401.

 

"Police Authority in a Free Society," Journal pf

 

Criminal Law, Criminology, and Police Science, Vol.
54, No. 2, 175—177.

 

 

 

C. NEWSPAPERS

Insight: "Why Negroes Riot," The Gazette (Montreal),
Wednesday, September 7, 1966.

 

News Roundup: "Cops on the Spot: Racial Violence Taxes
Police Anew, But They Head Off Serious Riots," 322
Wall Street Journal, Vol. 168, No. 45, Friday,
September 2, 1966.

 

APPENDIX ONE

SAMPLE

INCIDENT CHARTS

1639

APPENDIX I

 

HLVG
30

98-3
HBHWHN ESVD
asazlv
Kuoted
HSVD d0 Hdfil

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'LdHG EDITOd
IHVHO
SSHOOHd LNHGIONI
dEIS
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8 V LONIDHHd
NVIITOdOHlHW

 

 

99

 

 

 

dHLS

HHHNDN
NOILVHHdO

NOILVLHOdSNVHL

BOVHCLS

NOILDHdSNI
‘NIW NI HWIL

HQVW NOISIDEG

2330

LNIOJ NOIS

 

Officers rec'd run — fight — gun involved

1504

&

 

OffiCers drove to the scene with red light/siren —— a
lower class duplex

1509

3*

 

Decision: method of driving to the scene determined by
dept. procedure

 

 

Officers met the complainant and offenders, a Negro
family middle aged, son about 20 yrs.

 

 

 

Officers note the complaint of a fight in which shots
were discharged.

 

 

Officers asked to see the gun, request refused, officers
viewed several bullet holes and smelled the powder.

 

Investigatory Decision: based on the nature of the com-
plaint. demeanor of the participants.

 

 

Officers searched the home. found the gun.
ngifiign; based on the nature of the complaint, demeanor

 

of the participants, facts viewed on investigation.

‘ /
L—J

 

 

Officers arrest the father and the son.
Decision: based on the above factors as well as the

 

discovery of the gun.

 

Officer 1 restrains Mr X the son who grabbed a hammer

 

 

 

Officers transport the offvnders to the station

Rb,

 

 

Officers book the son ADW Gun, release the father
Decision: based on the facts learned, the nature of the

10

 

complaint, behavior of the participants. the need to
prevent further violence.

 

————————————————————— T o T A L s ----—-—-—----——-—-——-—

 

 

 

 

 

 

 

 

 

 

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153

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Officers search the son

according to the Department's procedure

 

Decision

 

Officers return to the car

 

 

Officers radio in-service

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

T o T A L s ------—-—-——--—-1

 

1371

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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m w n: vi H 81% g o E £<3 E +4 8 €53
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Officers rec'd a run — burglary unspecified. d <:) 1924 *
Officers drove to the setting a low class rooming house A
Decision: Nature of the response to the scene based 2 C) *
on Department procedure (
Officers met the complainant Miss JB, her guests Miss B, (:>
Mr X & Mr Y, all sloppily dressed,L Mr Y being the 3
only white person.
Officers noted her complaint of a missing record player 1:)
and $70.00 4 K
9
Officers noted that the landlady had seen the offender, d)
and from the description that Miss JB knew him 5 k *
personally.
Decision: based on interview procedure, due to the nature
We c'ESm‘pI—‘ai’nff ‘t'h—e' demeanor and occupation or the
complainant.
*
Officers told Miss JB that she should find the offender (:>
and tell him to return the items or be reported to the 6 *
the police.
Decision: based on the nature of the complaint, facts
learned through interview, demeanor & occupation of the
complainant, setting;
Officers noted Miss JB's agreement 7{:>
Officers returned to the car 8
Officers radioed in—service 9<:) L944
---------------------- T O T A L S —-—-——-—----—--—--——-- 9 11/113

 

 

 

172

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

11

5/11

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an Hg): g 3238 in H z 2 DH
m - z n o - tqz
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m
m
Officers rec'd run a man down l\;) 1607 *
\
Officers drove to the setting a row of lower class i
homes in a racially mixed area 2 49 161 *
Decision: based on the Department procedure as to the /
nature of proceeding to the scene of a Man Down fl;
Officers viewed a man down —male white about 60 yrs. 1:)
unconscious on the porch of the house 3‘
\\
Officers determined that the man was drunk by in- 4 ‘ *
spection. Decision: based on the nature of the com- [:1
plaint, behaViof’of“the offender. /
Officers met the lady of the house, who complained (:3
that the man was a strangpr. 5 \
Officers met 3 Negro males who volunteered to take him i)
homey to avoid the arrest. 6 _
I *
Officers determined that they do not really know the E)
offender and do not know where he lives. i‘- *
Decision: based on the nature of the complaint, be-
havior of the complainant and the bystanders.
*
Officer I sat drunk down on curb, called for the wagon ‘:> *
Drunk is_p1aced under arrest. 8 a
Decision: based on the nature of the complaint, be—
havior of the complainant, offender, facts learned
through investigation I *
Officers searched the offender & placed him into the (L\ *
wagon. pecision: based upon Department procedure 9 x.
Officers return to the car 10
L
/
Officers radio in-service lh\;) 1625
----------------------- T O T A L S -——-———--——--—-—--—

 

 

173

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

O :3 U '0 H *3 DU
3’ 3’ 71 2 U (D g H mm
0: :3 m ha tn 8:: o m #30 2 re ocd
L11 P- m ti! 0 U1 H O U) mp Z (I) m H HH
3 m H rua U m w r) ptfi m *3 'u g yam
I Q 0 z #1” m e w g 8 O m FdH
N (D m h) (1 o<3 5 m m #1 z p () C>O
o a H H D18 w > 3 a w re H zzz
m 0 | m g 3+4 6 0 H z
m m > m » Ut*€ru H o > m o Era
'2'" :5 U) ' mH at! O mz 8 Z Z O
2 w A a: 8 z w s a 5’.“
u: . E m z r. E:
m
m
Officers rec'd run - a bicycle theft 1 1509 *
\.
Officers drove to the setting - a middle class detached 2 ‘~ 152,*
home. 53
Decision: based on Department procedure as to nature of
response to the scene. 4
Officers met BC a male Negro juvenile, 9 yrs, his friend, (TR
and grandfather, Mr. C. ,
Officers noted that BC had left his bike outside the 4(’\
home 5 hr. previous, and it was missing. .9
N
Officer 2 took a stolen bicycle report. 5 (~\ *
Decision: based upon the nature of the complaint, be- -
havior of the complainant group, and Department
,procedure.
Officers thanked BC dcfll
Officers returned to the car 7
Officers radioed in—service. 8 1530
--------------------- T o T A L s ---—--—-—----—--—------ (1 2/412 2

 

 

 

 

1374

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

'U H D *3 v-JUU
9 39A .2. as; SoEmEEBB
H 2‘ E3 3 r) 81% H m 0 him a a: hiH
H < +4 bra U a w ptfi a: O *6 mcn
zwo ZHwtrJ MMH §8§MHHH
In": DODGE '03,:3 0200
a p. .H a pjgéfi 9 re w G) we 3 2:2
yap—19w H HHUJH
o tn m I > tflt'w'v 0 ‘3 3 O *1 §23
:0 mm MHv-JDU Z t'JZH H22
m| 380 FUH -UH
m w 0 0 “TE
0 m - z m z
m
m
Officers rec'd run - larceny of a bicycle 1 (:> 2315 *
Officers drove to the scene - a lower class house 2 ‘ 320*
Decision: Nature of response to the scene based upon :3
Department Procedure. j
/
Officers met Mr. & Mrs C, and L. their son, a Negro 3 Cf)
family, known personally to Officer 1.
Officers noted that Mrs X desired that the boy be re- i)
moved from the home as incorrigible. 4 \.
Officers noted that 2 stolen bikes were presently in J
the kitchen -- stolen by L. the son. 5
*
Officer 1 talked with Mr. X in private, suggesting that 6 *
he go with the boyygand return the bikes.
Decision: involves discretion, based on the time of
day, personal acguaintance with theyparticipants, nature
of the complaint, behavior of the complainant and *
offender.
Officer 1 talked with L. the son, warning him of possible K:> *
legal action,L and placement in a Delinquint 7
Decision: based on nature of complaint, behavior of
offender, and latitude assumed by officers
regarding juvenile complaints. (policy)
Officers noted the cooperative attitude among the .”
parties concerned. 3
Officers returned to the car. 9 \
Officers radioed in—service 0,’ 333]
———————————————————— T o T A L s ------------------—--—- d k/113 3

 

 

 

 

 

 

 

 

 

 

175

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

U 'U H U *5 U
9 F1 :3 g g Egg 2 <3 m m g a Eta
m a: 'o a 0 a: 'u m #30 H ()0
omammohaH a 9 U'UZ ZEHH
. 50 518808 % H “Moms E253
a monmggg g3 Z§88MHOO
0%» "a g ewgozzlz
m :2 g \l t3t*w Pl 3&4 a a
mo lib'l'rJi-Haru O OS’QH'SEB
”Elma are?) 2 mZHtUOH
mo >0 w H Jzzor—u
~20 o 'F’E
m m ‘2
m
m
Officers rec'd run - disturbance in a liquor store 1 <:) 180 *
‘R
V
\
Officers drove to the scene - a relatively clean busy ‘%
liquor store on the main street of the precinct. 2 g, 805
Decision: nature of response to the dispatch - /
determined by Department procedure. /
g
/;
Officers met the customers Mr & Mrs X and the store <:)
owners Mr giMrs Y, Negro and White respectively 3
L
Officers noted that Mr. X felt that he had been short- (TR
changedg§10 4 :5
$
Officers interviewed the participants, noting that Mr. (*3
X was a regular customer. 5 f
Decision: based on the nature of the complaint, de- 1
meanor of the participants. 1
1
1
Officer advised Mr X to leave quietly and to count his
change before leaving the store, the next time. 6 <:\
Decision: based on the nature of the complaint, the l
behavior of Mr. Y, the store owner, law (it was a
civil matter) and Dept. procedure
!
Officers noted that Mr. & Mrs X agreed and left 7 r:\
1L
Officers returned to the car ~
8 F‘
If
g
Officers radioed in—service. 9 (\3 l817
-------------------- T o T A L s -—-------—----—------ 9 5’12

 

 

 

 

 

 

 

 

 

 

176

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

9329'” E B m '4 e354
m n: w ra Q 33% r) O an ac: E H at)
m rn m tn 0 t*a #4 m C) him 2: E FiH
#3 n. HHwU U) $0 rommmm (DU)
2 t“ O z ()0 U1 6 H g .5 w Hpq
I t) m U1 (1 ng E m tn 3 z 8 C) In H C30
0 g < L a Urn ” g H g2 a g g z 22
Lu m h“ 9 | > tfikig'fl 3: 0 ac: w G) H E: E's
w 0 cn o grazam 2 F12 »a m c) H 0
re m 0\ >rac> w H :z z CJH
m m-zo 0 :rd
n m z ":3
H- m
o m
3
Officers were on patrol and viewed an auto make an im- <c\
proper left turn at an unreasonable speed. 1 ' 2355 *
7
Officer 1 asked officer 2 whether he wanted a ticket, ‘r\
decided it was worth a check, 2 .“I
Discretionary Action illustrates decision in step 3.
1
Officers stopped the offenders. .<1\ *
Decision: based upon the nature of the offense, the 3 :3
time of day, the behavior of the offenders \\\ *
Officer I checked the license and registration and *
verbally informed the driver of the offense. 4 7
Decision: Investigatory check based upon Department '//
procedure, nature of the offense. , '
Officer 1 noted that the offenders were Navy men sta- f“)?
tioned at "ABC" 5 \r
Officer 1 noted that the driver was civil and cooperative 6(ffi
*
Officer 1 told the driver to drive safely and warned him (A\
to be careful. 7 m“ *
Decision: based upon the nature of the offense, the de— 4f
meanor of the offender, officers knowledge of who or
what the offender was (i.e., Navy)
Officer I returned to the car, "I hate to give a service- :5
man a ticket". ' 8 ”
Officers resumed patrol 9 /‘5 401
----------------------- T o T A L s —--——---—-——-------—- 9 6 3 3

 

 

177

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

U
0 H m a tab
3’ 3’ :2 U *0 Z O (I) m g a mm
m c b 7: 8:2 0 a) 'n o r30 +4 H run
> m H m a m m H a w m'u z z 3 Hrs
L z 0 m m :3 £1; a m g H wtn m g m m aim
m FIH
O) E 11> 0 Z 00 a O :3 2% 8 0 E H OO
O ’11 \J 0 Virgo :11 H *3 DO g 0 Z 22
tn 0 | I-i 0% 0 EH v-J D-3
m bk 0 O\ Uta w z O > 6) +4 3 E
x Q > I > niHaJm U12 a m o H 8
2 a a gang w s z 2 CH
r. w - z m 2 m3
m
m
Officers rec'd run to an auto accident. no injuries ].(:> 2107 *
Officers drove to the scene. an intersection on a com- 2 2115*
mercial street.
Decision: nature of response to dispatch determined by De-
partment procedure. \\
Officers viewed a minor traffic accident - a rear end "
collision. (inspect damage) 3
Officers met Mr JP & Mr HB, Negro & White respectively 4
*
Officers took an accident report 5 *
Decision: based on the nature of the complaint, law (j)
and on Department procedure.
*
Officer 2 gave Mr. JP a summons (ticket)
Decision: based on the nature of the facts. Mr. JP's ad- 6 *
missions, information learned through‘ihspection, and
applicable law.
Officers returned to the car 7 ¢
1//
Officers radioed in—service 8<:) ¢14
-------------------------- T 0 T A L s —-——------————-——-—- 8 8/30 3 3

 

 

1f78

 

S
HHHWHN SSVD
HSVO JO Hdfil
99-L-V SLVG
'LdHG EDITOd
LHVHD
SSEDOHd LNHGIDNI
dSLS
HDVE JO
NOILdIHDSQG

8 V mONIDBHd
NVLITOdOHLHW

NOSHBd OSHDFNI

 

 

 

 

 

HHHWDN dHLS

NOILVHEdO

NOILVLHOdSNVHL

SDVHOLS

NOILDHdSNI

'NIW NI HNIL
HGVW NOISIDHG
LNIOd NOISIOHG

 

Officers rec'd run - injured person, ambulance
dispatched

1742

 

 

Officers drove to the scene, red light7siren, arrive
with ambulance at a low class poolroom.

745*

 

Decision: based on procedure of the Department as to
nature of response to the scene.

 

Officers note witnesses statements to effect that
victim took a seizure and collapsed.

 

Decision: to determine facts, based on the nature of
the complaint, the nature of the setting, behavior of

 

the victim.

 

Officers followed ambulance to hospital

 

\
\o»/

 

Officers ascertained doctor's diagnosis 7
Decision: to determine facts, based on procedure and

 

the nature of the complaint.

 

Officers completed an injured person report.
.Qecision: based on the nature of the complaint, facts

 

 

learned through above investigation, behavior of the
victim, procedure of the Department.

 

Officers returned to the car.

 

 

Officers radioed in—service.

v

l75(

 

 

 

 

 

 

 

 

------------------------ T o T A L s ----—-------------

 

 

 

 

 

11

 

 

 

 

 

179

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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g S E3 :3 Big 2 O n: m § a rim
m 'u a m 0 m m 03 ~30 H H ()0
w tn m tn m (a bra H a n mru (z a: pa g hdH
w H H haw ta ta g z: wtfi m *3 m cum
0 no 2 ()C) m w H g 28 0 rs th
I Q '0 U1 0 pigtdgg Q :3 2 ; tn +4 c>O
I #3 g a I! 0 Z 22
m 6\ Ut‘ H Era a Q *3 F
0 F1 9 I > pthw'u O o 3’ m :4 3 E58
w m 0‘ graham z BIZ *3 JO #4
:21 ON 3’ 0 SO H 2 Z UH
w - z r) o . bag
{11 2
m
m
Officers rec'd run to a fire l(:) 393
\ ..
Officers expedited to the scene - a lower class at— 2 ‘ 094fi*
tached dwelling
Decision: nature of proceeding to the scene de- /
termined by Department procedure
Officers entered the smoking home to obtain infor-
mation while firemen sought the source of the smoke 3
_ \ *
Officers helped the firemen search 4 *
Decision: based on the nature of the event, dis-
cretion involved. *
Officer 1 obtained information from the resident, a *
_§eqro family, middle—aged. 5
Decision: according to the procedure of the De-
,partment.
Officers & firemen found source of fire - rags in
basement. 6
4'
Officer 2 completed a fire report. 7 *
Decision: based on the nature of the event, De- (t)
partment procedure. *
Officers returned to the street, directed traffic. 8 *
Decision: based on the nature of the event, dis-
cretion is involved. \\
Officers returned to the car. 9

 

 

Officers radio in—service

Ox

.0 l

 

 

 

 

 

 

 

 

 

 

 

3G

 

 

 

 

APPENDIX TWO

SAMPLE

INCIDENT - DECISION

CHARTS

1E31

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NOISIOHG

V

99—L‘Z

(339112) Kuotea

 

- J

92

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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MI comm3
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m cm H mumpcwmwo owcoumwm .O OH umpcwmwo pwcowmmm .O .om
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3 .
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m. whommu HmEHom m xoou .0 .0H
m uwquu omsmmfl .o .wH
3 COHummHumw>CH HON pwummuum .o .nH
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IcoHumemo monuo UwEuowqu .o .mH
coHuoououQI
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M. umEEmn chHume\vsp
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powwoweou\©Hm umHHH w>mo .O .NH
mII osmcmuu cmuoouflcumu .0 .HH
I COHumuumHmUW\wmcmoHH pmxomno .O .OH
N Ho 0 H N cmmsmwu I csmImcu mom ou pmxmm .O @ 3mH>kuCH >9 Uwumeumm>CH .O .m
m. com ocsom w meoz may pmcoummmIN
m. m¢ Hg m H m I meoc umHHsQ Hmuw>mm ponH> .O h COHDUmeCH an pmummHumw>2H .O .m
m Umoumco .H.Hm
ImHo muozm .arme I uchHmeou .m m .<.e.o.o.s.muuchHasoo omuoc .o .n
III .I Hmvuwpcmum>n Dwa..o .0
NF .Qmmu COM\mwsumm a mHNION O om Ska. v .mw .MHORmoccmwwo qu O .m
K .mm..mcH\wwEh0wcH qu .0 .w
m Hm£DOE man I mnmIom mNm UTE .O m .Idmm .Eoo\u:mCHmHQEoo umaIAO .m
m m waQsp OVA Op mNflIOwH w>onp .O N COHumsuHm pmwmucw .O .m
J Um>Ho>cH com I ucmHm I cow ©.oou .O H chHHHQOE m.o .H
w mmoao¢m mHQ Uma ZOHecuHmHUmmm # monBofl MUHHOA

 

 

 

 

 

 

 

HH XHQmemd

 

182

 

 

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m Houumm moH>uwm Cu Uwcusuwn .0 .0m
wmumco
3m: HmcHw co .mmo omxoon .O .mN
wmuwso HmchHuo .wmo pmxoon .O .mN
cowm3
pmHHmp\umUcwwwo pwuuommcmuu .O .hN
noncommo pmcoummm .O .oN
munmau mo umpcwwmo pme>vm .mN
vm m mm>Huuwump ou mHHmuwp m>mmI.O m ch .O .vN
mstccomu :usOIHOOU: cows .0 .MN
pwHmecsow\UwumuuHDum .O .NN
coHuum\NUcwmm umcuo pwumwmmsm .O .HN
pmcum3\©wpcmEHume .0 .ON
mm cm vv Ho mH H v uuommu an HQOH m pmumHmEoo .O h uuommu HmEH0w m x00» .0 .0H
. umonu cwsmmH .O .mH
coHummHumw>cH MOM pwumouum .O .hH
wmcwwwo UHHHmem “0w poumouum .0 .0H
IlcoHumummo chuo coEuOHHwQ .o .mH
coHuomuouQ
uom wou0m Hmonch tom: .0 .vH
chuumou\wsp
Insm ou TUHOM Hmonch com: .0 .MH
pwuuoweoo\UHm umuHm w>mm .o .NH
oammmuu pwuowuHUIwH .0 .HH
COHumuumeou\owconH pmxowzo .O .oH
mHQmHHm>m conmHuUmop 0c
mH H N I .m .uz wo ucmHmmxm uooa pmuoc .O m 30H>uwucH >2 cwummHumw>cH .O .m
Hv H m ousou mmmowm ucwEwmmn Cocoumwm .o o COHumemCH.Nn UmummHumm>cH .O .m
.H.Hm
own mmoH I .>¢w hquQouI.L capo: .O c .<.B.Q.h.z.qucHMHmEOU Umuoc .O .n
Hmvuwpcmumxn use .0 .0
.mm .wmo\wmpcwwwo UTE .O .m
.mm .mc#\quHOwcH DOE .0 .v
cmeumo ~2\§..mu> Hm .m .uz qu .O m .mm .EOD\wcmchHmE00 use .0 .m
cm H umm mmmHo umBoH ou M\J pow m>0up .O N coHumsuHm twuwucw .O .N
wcHEmmuom moonwEom I cow c.0wu .O H pmNHHHQOE m.o .H
mmoaomm mHo UmQ onemuHmHommm # moneod MUHHOA

 

 

 

 

 

 

 

1£33

 

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comTB Tsu ou m.wmo COD .0

was UTHHmo or: .H
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mucmumnEoo pTchHumTH

OMDMU @CHfihmuwfl OH UQHMHCGIQH

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uummm cu0u I .uam ©T3TH>

Iucme 3TH> ou nouT>THT pTuHxT

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co DUTQTC umm umT>c
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m T m UTE
.Qm .wmo quCmeo UTE

. . 0 TE
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mZOHfiofi mUHHOm

 

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HH HouuNWNToH>uTm ou cTcusuTu .0 .0m
Tmumco
3T: HTcHw co .wwo UTxoon .O .mN
H vm mv OH 0 o o xcsun 0H memno HTchHHo .mmo UTMOOQ .O .mN
:0 m3
.cum on UTuHomwcmuu .O m pTHHTU\uTUCTwwo pTuuoamcmuu .O .NN
cm m m uTUCmeo pTcoume .0 .TN
warmHu To uwocowmo cmms>om .0 .mm
6H6 .O .vN
TstcnoTu :usoIHooo: cows .0 .MN
UTHHTmcsoo\©TDTHDHQuT .O .NN
COHqu\>ocwmm uTzuo UTumemsw .o .HN
pTcuT3\UT©cTEHumTH .O .QN
uuomTu HTEuow T x00» .O .OH
uTonu posmmH .O .mH
coHummHumT>CH How GTDTTHHT .O .nH
vm m OH 0 H m m xcsup o TTCTHHO UHHHUTQT Mow UTumTuum .0 .0H
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coHuoTu
IOHQ MOM TUHOM HTUHTHLQ UTTD .O .vH
chuumTMVTSU
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cwuu0mEoo\©Hm umuHm T>mm .o .NH
UHmwmuu UTDOTHHUITH .0 .HH
coHuTuumeTM\MWCToHH choTro .o .oH
mm m H N N Z\2 Tmsou ou GTHHD NHHTQMT> .O m 3TH>uTucH >9 pTummHumT>CH .O .m
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EOHHTSDHT UT3TH> Houumo co .0 H pTNHHHQOE m.O .H
mmoeo¢m mHQ 0mm ZOHemuHmHommm # monBU< MUHHOm

 

 

 

 

 

 

 

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HOHDTQIUTESTTH 6cm pTDHxT .O m HouumaxmoH>uTm Cu pTcusuTu .0 .0m
Tmumzo
3Tc HmcHw :0 .mm0 UTxOOQ .o .mN
Twwmno HmchHuo .umo poxoon .O .mN
cowm3
pTHHTU\uTCCTwwo pTuHoamcmuu .O NN
HTGCTMHO pTcoHTTT .O mN
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hm TH “mummunu TmscHucou m.z .mus cTuoc .o m Tao .o .em
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pTHHTmcsoo\pTumpanum .O .NN
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©TEET3\UT©CTEHMQTH 0 .ON
uuomou HTEMOM T xoou 0 .0H
uTonu UTsmmH .o .mH
coHummHumT>CH HON UTuwTuum O .NH
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new TTHOM Hmonxrm mes .o .vH
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coHuUmeCHINo pTummHumT>cH .O .m
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