The use of discretion is a popular principle in law enforcement. It refers to the autonomous actions of law enforcement officers in a policing situation (McCartney, 2015). Law enforcement officers are presented with multifarious situations on a daily basis that require professional discretion. This includes basic decisions such as making arrests, collating a certain kind of evidence or which suspects to question in an incident. Professional discretion is limited to legally acquired powers, rather than situations where law enforcement officers break the law. It must be noted that discretionary powers go hand in hand with professionalism. The latter is characterized by the presence of a certain kind of training and skills that allow one to perform a given type of duties without supervision (Kleinig, 2008). As such, the discretionary powers of the law enforcement officers are drawn from their training which puts them in a unique position to make various unsupervised decisions. Managerialism and accountability of law enforcement organs therefore erode professionalism and by extension, discretionary operational decision making of the law enforcement organs. It is often deemed as a paradox to consider police and other law enforcement persons as professionals with discretionary powers and yet set up accountability mechanisms for them. The latter is often necessitated by ethical issues that arise from the exercise of such discretion. Normally, there are various instances where the exercise of discretion transcends ethical boundaries. This paper shall discuss such scenarios, where professional discretion crosses ethical boundaries in law enforcement.
The use of professional discretion transcends ethical boundaries in situations where a balance of resources is sought in the criminal justice system. The use of police discretion has proved to be a valuable tool in ensuring that the criminal justice system is not overloaded by cases to public displeasure. Police officers and prosecutors in this case have to use their professional discretion to decide which cases deserve a warning, pressing of charges or taking a plea. In such a case, decisions are made independently to ensure that there is no overcrowding in prisons, there is no wastage of time on petty offenders and therefore the system can focus on major crimes that matter (McCartney, 2015). However, there are several ethical boundaries that are floundered in this process. To begin with, there is no standard framework that can be ethically compliant, for deciding on which cases are worthy prosecuting or letting go of. Take for instance a situation where a police officer fails to stop a speeding driver on a clear highway on the premise that there may be no harm caused by such behavior on a clear road. Shortly later, the motorist rolls down and loses their life, or perhaps an animal appears out of nowhere and is killed by the speeding car. In this case, the action appeared comparatively harmless and not worthy of the engagement of the criminal justice system but ends up with fatal consequences. In addition, there are many subjective biases that may influence the balancing of resources (Wyatt-Nichol & Franks, 2009). For instance, a female officer may be desperate to prove a case of domestic violence with a female victim even when it was a minor altercation as opposed to another felony. It is therefore clear that professional discretion does not adhere to ethical boundaries when there is desire to balance resources with cases in the criminal justice system due to lack of a solid decision rule and the influence of subjective biases.
Yet another situation where professional discretion goes beyond ethics is when dealing with capital offences in law enforcement. In theory and normative ethics, police are supposed to pursue justice rather than a guilty verdict (Wyatt-Nichol & Franks, 2009). However, in situations where capital offenses like murder have been committed, police officers seem to be biased and emotionally drawn towards ensuring the suspect is nailed. They devote more resources to such a case and are ready to even go off the book to get a conviction. For instance, when a terror suspect has been arrested, there are high chances that he would be deprived of a large number of their human rights and techniques like torture may be involved just to ensure that they are found guilty. There is no focus on justice on both sides, with the focus shifting into desperation for a guilty verdict. This is even more profound when the offender has a negative history with the justice system, that is, a repeat offender. There is desire to teach them a lasting lesson, which breaks ethical codes and opens the door for many other unethical actions. While professional discretion in this case may be sustained with officers citing an abundance of caution for using excess force and probably isolating the suspect, it is clear that they end up dehumanizing the suspect (McCartney, 2015). In the same context, a judge tasked with sentencing a capital offender may also act unethically. Given the gravity of the charges, there is likelihood that they would offer the death penalty rather than life imprisonment. The death penalty, despite being legal in many jurisdictions and falling within the discretion of the judge, does not pass the ethics test. It involves the deprivation of the right to life, which is sacred and a gift that requires no qualification. Therefore, capital offences generally present a situation where professional discretion oversteps ethical boundaries within law enforcement circles.
Investigative tactics also entail situations where professional discretion exceeds ethical limits. While carrying out investigations, law enforcement officers are required to make a number of autonomous decisions that in many cases may turn out to be unethical. For instance, investigators may deliberately ignore evidence, however small, that may portray the accused as innocent. Lack of balance in that manner in the collation and presentation of evidence lies with professional discretion and may be advantageous in proving the prosecution case but in the end cuts a clear unethical image (McCartney, 2015). Such actions of prosecutorial malfeasance are responsible for a large number of cases where innocent people have been put behind bars. Deception is also a common tactic that is used by investigators and in the end proves to be unethical. Examples include the use of plain clothes undercover policemen and unmarked vehicles. In this case, offenders are not warned of police presence and end up caught in the act. In some cases, undercover police officers act in a way that encourages potential offenders to engage in an act for them to collect the evidence they need. This may help them in getting the evidence desired in the end but may be through a mechanism that encouraged unintended crime (Kleinig, 2008). Another commonly used deceptive tactic is surveillance. Police officers may record other persons without their knowledge or set up hidden cameras in public spaces for the purposes of monitoring and collecting evidence. While this is within their investigative discretion, it infringes on the privacy of the majority which is generally unacceptable. The evidence collected may be admissible and significant in this case but still a product of unethical conduct. On a generalized frame, the use of deception in police investigations is pervasive, discretionary and permissible in law but to a great extent unethical. The same goes for a number of investigative tactics that are commonly employed such as ignoring evidence that may work in the favor of perceived offenders.
Therefore, the role of discretionary powers in the police force is undoubtedly positive and helps to bring about efficiency. Discretion is drawn from professionalism and entails a given level of authority enjoyed by a public officer in the exercise of their operations within the law. However, discretion has its own downsides when it comes to interacting with ethics. There are several instances cited in this paper where such powers are totally antithetical to ethics. These include where law enforcement agencies are looking to balance resources with the criminal justice system. In this case, there must be a choice on what cases are worthy the commitment of scarce resources. In the end, these decisions lack a credible and solid framework and are influenced by the subjective biases of the officers involved. Equally, situations involving capital offenses also lead to discretion going beyond ethics by bringing about obsession with getting convictions rather than ensuring justice for law enforcement. Judges also give death sentences in cases of capital offenses which unethically erodes the sanctity of life. Some investigative tactics on the other hand entail deception and selective presentation of evidence, which despite being within professional discretion goes against ethics. As it emerges, ethics have an uncomfortable interaction with professional discretion in law enforcement.
Kleinig, J. (2008). Ethics and criminal justice: An introduction. Cambridge University Press.
McCartney, S. (2015). Ethics in Law Enforcement. BCcampus Open Textbooks.
Wyatt-Nichol, H., & Franks, G. (2009). Ethics training in law enforcement agencies. public iNteGrity, 12(1), 39-50.
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