Running head: DISCRETION 1
Law Enforcement and the Use of Discretion
Toby D. Bear
Mercer University
CRJS/PSFT 498 Senior Seminar
DISCRETION 2
Law Enforcement and the Use of Discretion
The majority of Americans have experienced law enforcement discretion on at least one
occasion in their life. Law enforcement officers (LEOs) are given arrest powers and the authority
to enforce the law, and within said authority, officers use discretion when they are determining
how to deal with most individuals or situations. Merriam-Webster’s Dictionary defines discretion
as “individual choice or judgment; power of free decision or latitude of choice within certain
legal bounds” (“discretion,” 2020, para. 1). The right to choose what should be done in a
particular situation gives LEOs great power while they perform their job, but with power comes
the responsibility of remaining within the boundaries of the law, and remaining clear of
corruption.
Law enforcement discretion is considered by many to be a grey area. The problems of
LEO corruption, racial profiling, and indecision have all been linked to a failure of the use of
discretion by LEOs (Carter, 2006). On the other side of the spectrum, officer discretion has
contributed to improvements in law enforcement and community relations; it allows officers to
interpret the law quickly in the field, and the power to be lenient on misdemeanor offenses.
These are just a few of the pros and cons to this particular topic, and analyzing both sides of the
debate will help the public to greater understand the role discretion plays in law enforcement.
Con
Unfortunately, it seems like we often hear about the negative side of law enforcement in
today’s newscasts. LEOs make mistakes, and, as we have seen recently, those mistakes can have
disastrous and deadly consequences. Law enforcement discretion has negative aspects and can
be abused by officers and administration. One of the major concerns related to law enforcement
discretion is the abuse of power. As mentioned previously, discretion equals power (“discretion,”
DISCRETION 3
2020) and power can be something many individuals do not handle well, or just do not know
how to handle at all. The abuse of law enforcement power becomes an issue when an officer
becomes more concerned with what he thinks should be done to handle a particular problem,
even if it means ignoring the law (Schulenberg, & Warren, 2009). A larger issue in today’s law
enforcement community is use of force by LEOs.
Discretion is what a law enforcement officer uses when deciding whether or not to draw
their weapon or use non-lethal force, such as an electronic control device (also known as a
Taser), oleoresin capsicum (OC) spray, or hand-to-hand force. Experts have noted “law
enforcement themselves are often the victims of inadequate force policies and training”
(Prenzler, Porter, & Alpert, 2013, p. 344); actions by these inadequately trained officers often
draw large amounts of media attention, further hurting the reputation of law enforcement
everywhere. Researchers have recently found an officer’s background and personal views, along
with different biases and prejudices can be a factor affecting decision-making in some law
enforcement departments (Phillips, 2015). A law enforcement officer’s background can affect
how he or she views different crimes, and the use of discretion can become unlawful when the
decision to arrest or file charges is based on the biases or prejudices of a particular officer.
Pro
While there is a down side to law enforcement using discretion on the job, there is
certainly an upside. The use of discretion by law enforcement is what keeps the officer on a
human level. It gives offenders room for a second chance and an opportunity to learn from their
mistakes. Discretion is what allows a law enforcement officer to write a warning for a traffic
violation instead of a costly traffic ticket. It also allows LEOs to relate with people in the
community and maintain a positive image with those living in close contact with officers
DISCRETION 4
(Tillyer, & Klahm, 2011). Another important fact related to law enforcement discretion is the
prison population in America.
Our prisons are overcrowded right now and the appropriate use of LEO discretion could
help reduce the amount of first time, non-violent offenders placed behind bars. Our criminal
justice system would be overrun if LEOs carried out the law, by the letter, and arrested everyone
for the smallest offenses. The resulting number of cases and trials would overrun our current
court system.
Finally, most LEOs like their jobs and most public servants will tell you it would be
virtually impossible to do their jobs if they were not whole-heartedly dedicated to the work they
were doing. With this in mind, discretion gives a law enforcement officer the chance to engage
fully in their work by allowing officers to help, rather than punish. In turn, with this help comes
the satisfaction of the job and knowing good lessons are being learned by those in contact with
LEOs.
My Opinion
With both sides of the issue examined, I believe law enforcement discretion is an
important and valuable tool LEOs should continue to use in a law- abiding and appropriate way.
Law enforcement as a whole is rightly under a massive amount of scrutiny in America, but I
believe a positive law enforcement image is very important for the overall feeling of security and
peace of our country. One key to helping maintain a societal balance is to enable LEOs the
ability to use discretion when dealing with the criminal element. I also believe law enforcement
departments should put more emphasis on training their officers how to use discretion in the
field, including when to use force and when to find non-lethal ways to diffuse conflicts. LEOs
face many unique and difficult challenges every day on the job and these challenges are likely to
DISCRETION 5
increase in complexity as the years go by. Therefore, LEOs’ proper use of discretion, along with
increased accountability, will help officers to be better prepared to face the coming challenges.
Conclusion
In closing, the positive and negative aspects of law enforcement discretion raise
important issues for public discussion. There are certainly changes to be made in law
enforcement communities around the country in order to improve the public image of LEOs. The
more professional and dignified the LEOs are, the more the public will trust and respect them.
We must learn from the past mistakes of LEOs and their administrations, and use these mistakes
to change our future interactions. As a public servant, I will always strive to be conscious of my
responsibilities, to act fairly and justly as I perform my duties, and never to become complacent
while on the job. I believe these will be the things necessary for our nation to begin to trust
LEOs, and all public servants, again and for years to come.
DISCRETION 6
References
Carter, T. J. (2006). Law enforcement use of discretion: A participant observation study of game
wardens. Deviant Behavior, 27(6), 591-627. doi: 10.1080/01639620600781555
Discretion. (2020). In Merriam-Webster Dictionary online. Retrieved from
https://www.merriam-webster.com/dictionary/discretion
Phillips, S. W. (2015). Police recruit attitudes toward the use of unnecessary force. Police
Practice & Research: An International Journal, 16(1), 51-64.
https://doi.org/10.1080/15614263.2013.845942
Prenzler, T., Porter, L., & Alpert, G. P. (2013). Reducing law enforcement use of force: Case
studies and prospects. Aggression and Violent Behavior, 18(2), 343-356.
Schulenberg, J. L., & Warren, D. (2009). Law enforcement discretion with apprehended youth:
Assessing the impact of juvenile specialization. Law enforcement Practice & Research:
An International Journal, 10(1), 3-16. https://doi.org/10.1080/15614260802128609
Tillyer, R., & Klahm, C. IV. (2011). Searching for contraband: Assessing the use of discretion by
police officers. Police Quarterly, 14(2), 166-185.
https://doi.org/10.1177/1098611111404178
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