As with the courts, a significant feature of law enforcement is the discretionary power officials can exercise in specific situations. The exercise of discretion is integral to the daily routine of police officers in a large variety of activities ranging from routine traffic stops to responding to domestic violence calls. Albert J. Reiss Jr. and David J. Bordua (1967) pointed out that police discretion stems in large part from the general organization of modern police work. As a largely reactive force, primarily dependent on citizen mobilization, the police officer functions in criminal law much like a private attorney functions in civil law—determining when the victim’s complaint warrants formal action and encouraging private settlement of disputes whenever possible. Many decisions by police officers do not lend themselves easily to either command or review. As a result, police exercise a considerable amount of discretionary power, and police agencies differ greatly in such things as their volume of arrests, parking tickets, and pedestrian stops.
Because of their discretionary power, “the police are among our most important policymaking administrative agencies. One may wonder whether any other agencies—federal, state, or local—make so much policy that so directly and vitally affects so many people” (Davis, 1975a:263). The police need to make policy with regard to nearly all their activities, such as deciding what types of private disputes to mediate and how to do it, breaking up sidewalk gatherings, helping drunks, deciding what to do with runaways, breaking up fights and matrimonial disputes, entering and searching premises, controlling juveniles, and managing race relations.
The police exercise their discretion in both reactive and proactive policing. Reactive police work is a response to citizen mobilization via a 911 call or other means. If a citizen does call 911, the police dispatcher who answers the call begins to exercise discretion. The dispatcher interviews the caller to identify the nature and location of the reported problem, and decides whether to dispatch a patrol car. An early study of telephone calls to three police departments found that 20% to 40% of the calls are handled without dispatching a car (Bercal, 1970). If the dispatcher decides to send a patrol car, then the nature of the assignment (for example, burglary or robbery) and which car to assign must be determined. When a car is dispatched, the officer may informally turn down the assignment, or may procrastinate on the way, or even lie about having investigated the call (Rubinstein, 1973). If the officer follows up on the call, he or she often has to decide whether a crime has been committed. Albert J. Reiss Jr. (1971:73) found that, in Chicago, whereas citizens considered 58% of their complaints as criminal matters, officers responding to those dispatches officially processed only 17% as criminal matters.
Proactive police work is undertaken on the initiative of the police themselves without citizen mobilization. The activities of traffic and tactical divisions are primarily proactive policing, as are the various nondispatched activities of detectives and vice divisions. In proactive policing, discretionary power is exercised in the context of whether or not to stop a suspicious pedestrian or automobile for investigation or to engage in various types of crime prevention measures (Braga et al., 2015).
In both reactive and proactive policing, the use of discretion can take a number of forms—investigation, confrontation, disposition, and decisions about the use of force. To some degree, police officials have the option of investigating some acts and not others.
The police, for example, may elect to ignore or to actively pursue a citizen’s complaint.
In some cases, the police arrest a suspect, and in others—even though the act and circumstances may be similar—the individual is released. And the police mistreat some people while handling others with respect. All along the line, the police make many types of decisions.
Because the police exercise so much discretion, they may also end up discriminating for and against certain people based on the latter’s race and ethnicity, sex, age, behavior, and other characteristics. A growing amount of evidence finds that police do single out young, African American and Latino men for traffic and pedestrian stops and other actions, as a recent federal investigation of Baltimore police demonstrated (Stolberg, 2016). In earlier research, Nathan Goldman (1963) found that 65% of arrested black youths were referred to the juvenile court, compared to only 34% of arrested white youths apprehended. Similarly, Donald J. Black and Albert J. Reiss Jr. (1970) found that 21% of black youths, but only 8% of white youths, encountered by the police were arrested.
Despite the discrimination resulting from police discretion, police discretion must remain a fundamental characteristic of police work. As Davis (1975b:140) argued,
Police discretion is absolutely essential. It cannot be eliminated. Any effort to eliminate it would be ridiculous. Discretion is the essence of police work, both in law enforcement and in service activities. Police work without discretion would be something like a human torso without legs, arms, or head.
To say this is not meant to excuse any discrimination practiced by the police. Rather, it is meant to underscore the problem of reducing discrimination by the police.