This forum is not purely dedicated to legal discourse. While I may attempt to 'raise the bar' with some pieces relating to law and being a criminal defense lawyer in Toronto, I also plan to use this blog as a medium to express my often critical thoughts on the daily grind that is life. Throw in some random videos and internet fodder, and the bar is sure to be lowered.


Wednesday, 27 July 2011

Police Discretion - the Good, the Bad and the Ugly Part 4

Factors Affecting Police Discretion
            In order to properly assess and evaluate the nature of police discretion, it is essential to identify the variables which factor into its consideration.  These variables can be classified into three non-mutually exclusive categories:  systemic variables, situational factors, and offender/officer variables.[1] 
 
            Systemic Variables
            A street level officer’s exercise of discretion can be a reflection of larger systemic influences, such as the character of the prevailing organizational culture, the efficacy of the judiciary, and the expectations of the community.
The street officer may be acting in accordance with the agenda of certain management directives aimed at targeting specific incidents which become topical at any given time.  This agenda may be motivated by several factors including, but not limited to, revenue generation, organizational productivity, and public image concerns.  For instance, traffic enforcement mandates are often subject to offence-specific ‘blitzes,’ targeting certain violations in an increased capacity.  The police are offering a positive message for public consumption about their ability to effectively manage social order, while simultaneously augmenting the budgetary coffers of their political masters.
Likewise, the police may shape their use of discretion around the confidence they have in institutions other than their own.  Some officers tend to become lenient when the judicial system is clogged and is either unable to effectively deal with their matters or is perceived to be uninterested in offences of low concern.  Police officers may also believe that the legislature does not desire the full enforcement of certain statutes.  Instead, they believe politicians are paying lip-service to recent crime initiatives, merely making symbolic statements, expressing ideals, or offering an artificial appearance of being tough on crime.[2]  The street officer may also view certain laws as ambiguous, no longer relevant, or carrying penalties that are too severe. 
Community standards and expectations trigger certain discretionary responses from front-line officers.  A policing style that reflects a neighbourhood’s sense of fairness and understands the concerns of its residents is more likely to do justice than policing which strictly follows a rule book.[3]  The actions of certain subcultural groups which may be criminal, according to the letter of the law, may not require strict enforcement because they are tolerated within that group.  The police may encounter uncooperative victims or witnesses, leaving them to believe that the community desires lenient or lax enforcement.  Moreover, the availability of restitution without formal police sanction, which is available within certain communities, may also prompt non-enforcement, especially where an arrest may result in the loss of valuable public support or unduly harm someone’s status within the community.  
…police discretion exists in matters of criminal justice and is a response to, among other things, the community's wish that not all those who commit minor offences should be arrested by the police or prosecuted.[4]

Furthermore, the infrastructure of the community in question may inform the use of police discretion.  For example, communities that have sufficient social service resources, like detoxification and mental health facilities, provide officers with more non-arrest options.[5] 

Situational Variables
Surely, the exercise of police discretion is dependent on specific features which define a given situation.  Two important factors relevant to these situational variables are the time and location of the police-citizen contact.  Disorder is often a function of particular chronological ingredients.[6]  This is instinctively recognized by the police as evidenced by an increased indulgence of certain types of behavior during specific time periods such as, for example, holidays and weekend nights.  The location of a given encounter must also be considered.  Different neighbourhoods have different acceptance thresholds for specific types of activities.  For instance, the police can be tolerant of higher noise levels in downtown Toronto than in suburban residential areas.  By contrast, some forms of disorderly behaviour are absolutely inappropriate around schools and would require strong legal censure.
Of comparable importance are practical employment related factors which influence a front-line officer’s realistic use of discretion.  These include the administrative down-time involved, the need to stay available to respond to calls for service during peak hours, and at what point during an officer’s shift an incident occurs.  If the officer goes off duty soon after an incident occurs, there may be less motivation to formalize a detention.  Likewise, the organization may have stopped subsidizing officers for court appearances, there may be inadequate manpower for backup, and the individual officer may trade non-enforcement for other favours, deals, or to gain informants.[7]  Other situational factors include the seriousness of the offence, the presence of weapons or acts of resistance, the type of property involved in a property crime, and the visibility of certain acts, especially pertaining to vice related conduct.

Offender/Officer variables
Perhaps most crucial to the discretionary continuum is the conduct of the citizen and the personal outlook of the police officer.  Behavioural considerations have perhaps the most undeniable influence on the nature of the officer/offender contact.  Whether a subject is intoxicated, under the influence of drugs, or behaving in a variety of inappropriate ways, can frequently lay the groundwork for the police-citizen interaction.  Noticeably, when referring to the condition of the offender, this is not a reflection of matters concerning social class, race, or sexual orientation.  The focus is on behaviour.  For example, the police would be less concerned about a person who urinated publicly if that person attempted to find an isolated location as opposed to someone who flagrantly exposed himself in a highly visible location.
However, it is when the police officer’s attitude, ethics, and morality govern the interaction, more so than the behaviour of the citizen, that the spectre of discretionary abuse is ubiquitous.  The street level officer is often required to make professional judgments based on personal principles, frequently in fluid and dynamic circumstances.  Although, we expect professionalism to properly dictate the nature of discretionary action, the officer may hold certain predispositions about the correct or appropriate resolution depending on the subject’s age, sex, colour, ethnicity, socio-economic status, or sexual orientation.  Essentially then, it is the officer’s personal discretion that may serve to benefit some, while negatively affecting others.


[1]  Gaines, Larry and Kappeler, Victor, Policing in America, Edition: 4 (Cincinnati, OH: Anderson Publishing, 2002) at 27.
[2] LaFave, Wayne, Arrest: The Decision to Take a Suspect into Custody (Boston MA: Little Brown, 1965) at 64.
[3] U.S., “Broken Windows” and Police Discretion (NCJ 178259) (Washington, DC: United States Government Printing Office, 1999) at iii.
[4] R. v. Beaudry (2007), 216 C.C.C. (3d) 353 at 25.
[5] Gaines, supra at 29.
[6] LaFave, supra at 87.
[7] Ibid

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