Pros and Cons of Police Discretion

Abstract

The alarming upsurge of domestic violence threatens the state thence there is a need to address the situation to reduce the many numbers of abused victims. The delegation of power and full discretion to the police officer of cases on domestic violence has somehow managed to infuse peace and order in a certain community. However, all listed cases of domestic violence is a just a part and parcel of the all the many cases of domestic violence.  The intimacy of domestic violence has marred some victims to ask for police assistance. One thing more, flaws have been raised as to why the full discretion rests on the hands of the police officers, now if there is the need to deal with the situation and as much as possible eliminate cases like these, then why let the police defined justice on matters like these? Furthermore, we need to weigh between the advantages and disadvantages of letting the police adjudicate domestic violence for us to establish a point to modify or to enforce the legislation. This paper has thus presented some of the pros and cons as according to some concerned social services, apparently because they have the more accurate listings other than those who have the authority.

Introduction

Domestic Violence: Domestic violence emerges as one of the most predominant crime usually committed in the criminal justice system. It deals as the word implies, any violence committed within the threshold of the family, the community or to any person who has special attachment or intimate relationship to the offender. Family violence is considered the most common forms of domestic violence. Child abuse, spouse abuse and elder abuse are among the examples of family violence. According to the state, the family is an inviolable unit of society and therefore must be free from the scrutiny of outside contingents, within the context of inviolability lies the possible causes of difficulty in ascertaining family violence incidents. Most often, families that have suffered violence within their homes are reluctant to direct their grievance to the proper authorities and will choose to remain silent and ease their physical sufferings. There are several reasons why family violence is kept secret by members of the family. Grave threat is often intervened being conveyed by the offender. He / she can tolerate his / her family abuse actions in this way. Intimate crime is also called domestic violence. To consider a misdemeanor as domestic violence, there is the requisite of intimacy between the offender and the aggrieved party. Hence, domestic violence is not only true within the doorstep of the family, but to any relationships or affairs as well. There has been a vast campaign against domestic violence since then, most especially to women and children. Women and children are perceived as the weakest human being and are often tied up with physical violence. Society’s dominant state imbibed the authority of the image of man as the superior form of man to manipulate society. In defining the role and importance of the woman in society, women’s activist pushed through. Furthermore, since there is an implied paternalism, the criminal justice has lesser focused on domestic violence. This transfiguration has been contested by many individuals to honor and legislate laws and statutes that shall protect and safeguard women and children’s right. Domestic violence varies, physical abuse is the most common type, and emotional abuse is the other form. Physical abuse includes the use of force or objects to commit acts. Men’s physical agility shows their dominance over their partner, making it easy for them to harm their partners. There was no reason for men to beat their wives or partners, but some likely cause or motive is due to financial matters. Based on financial limitations, grassroots households are more likely to be exposed to domestic violence. Instead of procuring a job, they turn their anger to their partners by beating them up. Some possible causes of domestic violence are low income, growing up in a violent family, alcohol or substance abuse, unemployment, sexual difficulties and low job satisfaction. The offenders of this misdemeanor tend to have antisocial personality disorder. Emotional abuse on the other hand is through the used of harsh words to degrade, taunt and undermine the victim sometimes invoke in front of the public. Unlike physical suffering, emotional suffering is harder to patch up; the victim may have the possibility to feel tremors, depression or anxiety sometimes last for a lifetime. Psychoanalysts initiated several actions such as therapies to rejuvenate the victim and to alleviate her/his condition. There was not a clear basis why such violence occurs in the family or in the community. But due to social and cultural tradition, these acts are tolerated and less addressed by the criminal system. The struggle to prosecute the offenders of these acts was somehow addressed but not to enforce the statute and laws that shall protect women and children. Police officers sometimes blame the victims who were less cooperative to tackle the issue. It must be understood that the victim is incapable of rational decisions and thinking perhaps because of her/his traumatized condition. Juvenile delinquency is also another form of domestic violence. Children who are nurtured in a family dissent will most likely to become a liability of the state. Several studies have shown that children living in an abusive environment will have the potential risks of future delinquency and adult criminality. Children who grow up in abusive households (whether the violence is directed toward them or toward a parent) are more likely, but not destined to live in abusive households as adults. Furthermore, the authority seldom did tackle the cases of juvenile delinquency seriously. Felony and petty crimes are often foregone without properly addressing the situation. The social services networks are more concerned on the welfare of the children but not the government itself. While there was increasing disgust on dealing with domestic violence, the government ordered the line of police officers to undertake and help solved the crime of domestic violence. Now, it was the burdened of the police to arrest any offender of domestic violence whenever they sees fit. The life of the abused rests on the hands on these people, hence, the police must take effort to study the case based from reasonable discretion, acts on probable cause and provide necessary actions to mitigate the situation.

Body

Police Officer: The figure of the police conveys status and power that is what other people think of. Behind that power and authority is the responsibility to safeguard the people within the in charge community. To exercise authority, a police officer must be equipped with the knowledge on the current criminal system. This is his foundation to judge a criminal action. Statutes varies from state, thence an officer must fully know and comprehend the statues in his state regarding domestic violence and certain state legislation that deals with the same. Under the Illinois Police Department, the IDVA or the Illinois Domestic Violence Act serves as the basis in responding to domestic violence. According to the act, an officer may make an arrest if s/he has probable cause to believe that a crime was committed. He / she doesn’t have to witness the crime to make an arrest, but can rely on evidence on the crime scene, including what the victim tells her, torn clothes, victim injury, property destruction at home. (Life Span, 2001). The police officer will act based upon from his judgment to warrant the situation as domestic violence. Discretion is a general term and often influenced by outside factors. Our judgment is based from what we believe is upright and is necessary to do. But judgment does not however mean that is always the right thing to do. Our tradition is the foundation of our judgment. Social and environmental factors deeply affect our decision-making. Only then that we learn how to modify our rational thinking when we try to educate ourselves and polish our belief through constant education. A police officer must be well educated and well-proficient especially on their field. He/she must know how to judge an act reasonably and resolve the situation at once. Being reasonable does not mean to always adhere on the drafted rules, but to exercise the right judgment based form the context of the event. Ministration is entirely different from administration. Ministration means following in toto what the system has clearly pronounced about the scope of domestic violence. Administration is relying on one’s judgment to act on a specific situation and adjudged it based from the drawn circumstances. Discretion is bounded by norms such as professional norms, community norms, legal norms and moral norms (Criminal Justice, 2004). Discretion is a positive response to promote uprightness. Such as:

• discretion-as-judgment – Judgment is applicable to the person who must act keenly on an event or situation. His act must be apparently what is justifiably right, or what he believe is ought to do. A police officer is bestowed with the responsibility and authority on this matter. Thence, upon correct judgment he must act rightfully on a situation that offers the possibility of a domestic violence. Adhering to the rules do not mean acting upon it justly, sometimes, we have to rely on our prerogative especially when the situation so ordered. Competence is not the rules drawn, it is what how we conceive and drive the situation properly.
• discretion-as-choice — Discretion entails being responsible of our actions, we must be certain that what we have cast is our choice. It is not based upon or influence upon by our superior, it is freewill to do it and we must stand on it when the trial proceed.
• discretion-as-discernment — Discretion is based from keenful observation. Discretion should not be made from a rash decision. The event must be fully discerned. When you say discern you have already weighed the circumstances based form the story of both the offender and the aggrieved party.
• discretion-as-liberty — Discretion is essentially freewill, it is your own choice free from the influence of anybody. Freedom of judgment is everybody’s inherent right; no one can take that away from us. Therefore we are bound by the duty to be just in all our judgment and decisions.
• discretion-as-license — In making judgment, there are some things that motivate us such as the expectations of everybody, our superiors perhaps. But that must be disregarded once for making judgment we must have to look for our own expectation not what others is expecting us to do. It is not that we are following orders but we follow our own rule of thumb. However, we must have to consider what good will our decision has. That is the fundamental basis of discretion, deciding on our without alienating what is just. (Ibid).

Thence a police officer can have a full authority, free from any outside influenced either by the state or the individual and must exercise freedom in adjudicating domestic violence. Several steps have been drawn to address situation of domestic violence. The IDVA from the state of Illinois has drawn the responsibility of a police while rescuing the victim of domestic violence. These are:

• Provide or arrange transportation for the victim to a medical facility for treatment or to a place of shelter or safety.
• Accompany the victim to her home for a reasonable time to collect her personal belongings.
• Offer immediate and adequate information of her rights (Victim’s Rights Sheet) including the officer’s right to obtain an OP or to begin criminal proceedings.
• Provide referrals to local service agencies.
• Advise her of the importance of preserving evidence such as torn clothing, damaged property, and photos of injuries or damages. (Life Span, 2001).

Unlike other state and other nation the above mentioned procedures foster the need to care for the victim of domestic violence but the question is, if the drawn policies were strictly adhered. It maybe possible that police discretion veered on the drawn policies because his decision is what he thinks fit the situation. He can have the full right to exercise his conceived uprightness. Responsibilities sometimes can become hindrance to the discretion of the police. That is now the problem, there is administration and administration is the common ground of the police officers. Whether it be important to conduct responsibility that concerns now the officer either to refute or to follow the standard rule or procedure. It is the essence of discretion. Another important thing to understand is how the police respond to the situation. There are factors that must be considered as necessary to undertake such as mandatory arrest to allay the situation. The police officer can proceed for the mandatory arrest even without witnessing the act when he believes that it is the appropriate thing to do. But there are also situations where he can exercise his right to mediate the situation. Essentially, there are three major policies how must the police respond to the situation:

The mediative policy is a non-arrest policy. The police can act as a peacemaker in settling the disputes between the husband and the wife. He can mediate in the situation by acting as a counselor or adviser in the best way he can. It is in this way he can ease the tensions between the two parties.

2) A pro-arrest (sometimes called presumptive, affirmative, or preferred) policy

now refers to the discretion of the police officer to either arrest the offender or to act as a mediator.

3) A mandatory (sometimes called non-discretionary). In a mandatory arrest, the discretion of the police officer is devoid, he must arrest since there is an established proposition that an offense has been made based on the apparent circumstances.

(Egan, 2004 )

Mandatory arrests were contested due to the fact that there are police officers that are hesitant to arrest the offender and choose to mediate instead. But the state often allows warrantless arrest whenever there is a probable cause. Furthermore, critics of mandatory arrest have contend that it curtail the discretion of the police officer to acts on his own accord. Mandatory arrest on the other hand can pacify the situation especially when it has the tendency to get worse. The state however cannot enforce this form of arrest; they leave the discretion on the officer that responds to the situation. It is in this way the officer can exercise his inherent authority above all.

Pros and Cons of Police Discretion: Discretion as discussed above is based from the police officer judgment. However, several policies, rules and procedures in handling domestic violence and police officer responsibilities sometimes hindered their discretion. If we based discretion from its concept being mentioned above, essentially discretion is upright and just. But considering that people raised in different customs, cultures and environment as well as educational attainment, it is difficult now to ascertain what is right and what is wrong from a man’s viewpoint. To address this issue on moral perspective, the positive result must outrun the negative result. Thus, it is necessary to weigh the effect of the action before steps shall be taken. Police discretion appears to be a double-edged sword. It can be used for good or bad. It’s not as simple as it being right or wrong. Of course, if the origins of authority involved bias, impulse or caprice by individual police officers, that would be totally wrong. (Criminal Justice, 2004) Here are some of the pros and cons to work with the imperative of the police:

Some of the pros are:

• Police personnel in general have become increasingly professional and skilled in handling domestic disturbances.
• Most police departments have at least one trained officer responsible for domestic violence cases and this person is likely to make a sincere effort to be of assistance.
• The police provide documentation of domestic violence that can be useful for police or court action.
• A few police departments have an officer who is a liaison to gay male (G), lesbian (L), bisexual (B) and transgender (T) people. This officer may be helpful in cases of domestic violence by providing guidance and support for working with the police.
• Some police departments have had exposure to information about GLBT partner abuse.

Some of the cons are:

• It is difficult to engage with the police on partner abuse and not come out to them.
• Not all individual police personnel behave as professionally as is expected, and an individual officer may handle a LGBT domestic disturbance situation inappropriately.
• Most police personnel have not had training on LGBT partner abuse. This can lead to a variety of problems when they are called to a domestic disturbance:
• They may have difficulty distinguishing the abuser from the abused especially when there are two people of the same gender.
• They may arrest both partners and call the situation “mutual combat”.
• They may treat the situation as just two guys (or two women) having a fight and not handle it as domestic violence.
• Most police personnel have not had LGBT diversity awareness training. They may inadvertently or deliberately handle the situation in an insensitive manner.
• Any situation reported by the police appears in the police blotter and may be published by the local newspaper. (Gay Men’s Domestic Project, 1994)

Conclusion

There are a lot of good reasons why discretion should not be place in the hand of the police even when they are humane or not. Most probably, as we conceive today, police power are inherent in every state which means that even without any laws and legislation that shall merit their obligations, still they have obligations as well as authority to safeguard the people and the community at large. To rests the discretion on their hand shall foster an unhealthy environment where there is the rule of the few who can either practiced and imbibe fear to everyone. How can now the people rely on the guardians of the state if these guardians themselves cannot rule and advocate justice. The government must intercede on these petty issues on domestic violence and not just let anyone to adjudicate it. That must be clear in the criminal system, domestic violence is not a private issue, and it can be a leeway to larger issues in the long run.

References:

• Criminal Justice. 2004. Police Discretion. Retrieved from https://www.apsu.edu/oconnort/4000/4000lect07.htm
• Han, Erin L. 2004. Mandatory Arrest and No Drop Policies: Victim Empowerment in domestic violence cases. Retrieved from https://www.bc.edu/schools/law/lawreviews/meta-elements/journals/bctwj/23_1/04_TXT.htm
• Berkman, Miriam & Esserman, J.D. 2004. Police in the Lives of young children exposed to domestic violence. Retrieved from www.uiowa.edu/~socialwk/paper_4.pdf
• Life Span. 2001. Police Responsibilities to Victims of Domestic Violence. Retrieved from https://www.life-span.org/policerespons.htm
• Gay Men’s Domestic Project. 1994. Intimate Partner Abuse. Retrieved from https://www.gmdvp.org/gmdvp/history.htm