EXERCISE OF DISCRETIONARY DECISION-MAKING BY THE POLICE AN INQUIRY INTO ITS CORRELATES, CONSEQUENCES, AND CONTROL

• NCJ Number: 49187
• Journal: North Dakota Law Review Volume: 54 Issue: 1 Dated: (1977) Pages: 61-95
• Author(s): C W THOMAS; W A FITCH
• Date Published: 1977
• Length: 36 pages
• Grant Number(s): GI-39339
• Sponsoring Agency: National Science Foundation
• Corporate Author: University of North Dakota
• Publication Format: Article
• Language: English
• Country: United States of America
• Note: NORTH DAKOTA LAW REVIEW IS PUBLISHED IN CO-OPERATION WITH THE STATE BAR ASSOCIATION

Annotation

THE DETERMINANTS OF DISCRETIONARY DECISIONMAKING BY THE POLICE, THE CONSEQUENCES OF SUCH DECISIONMAKING, AND SOME OF THE MECHANISMS BY WHICH DECISIONMAKING BY THE POLICE MIGHT BE REGULATED ARE DISCUSSED.

Abstract

IT IS ARGUED THAT THE DISCRETIONARY POWER OF THE POLICE EITHER TO TAKE PERSONS INTO CUSTODY OR ONLY TO ISSUE A WARNING IS AN INEVITABLE AND NECESSARY ASPECT OF THEIR WORK. STUDIES OF THE VARIABLES THAT FREQUENTLY DETERMINE HOW POLICE MAKE SUCH DECISIONS ARE CONSIDERED AND CONCLUSIONS DRAWN. IT IS HELD THAT EXISTING DATA INDICATE THAT CURRENT POLICE DISCRETIONARY PRACTICES REGARDING WHOM TO TAKE INTO CUSTODY FREQUENTLY OPERATE TO THE DISADVANTAGE OF SOME SEGMENTS OF THE POPULATION, RESULTING IN A DEPRIVATION OF CONSTITUTIONAL RIGHTS. FORMAL LEGISLATION AND JUDICIAL DECISIONS ARE CONSIDERED INADEQUATE AS EFFECTIVE MEANS OF REGULATING THE USE OF POLICE DISCRETION. THE FORMULATION OF RULES TO GOVERN THE EXERCISE OF DISCRETION IS BELIEVED BEST DONE BY POLICE DEPARTMENTS AND DIVISIONS THEMSELVES, WITH APPROPRIATE INPUT FROM THE PUBLIC AND COURT PERSONNEL. SUCH A PROCESS IS MOST LIKELY TO LEAD TO REGULATIONS THAT WILL BE PRACTICALLY SUPPORTED BY THE POLICE. EXPOSURE TO SANCTIONS WHEN THESE RULES ARE VIOLATED WOULD BE MADE POSSIBLE THROUGH THE REQUIREMENT OF POLICE REPORTS REVIEWABLE BY DEPARTMENTAL SUPERIORS AND THE PUBLIC. DEPARTMENTAL DISCIPLINARY ACTION WOULD BE TAKEN AGAINST ANY OFFICER FOUND VIOLATING THE REGULATIONS FOR DECISIONMAKING. IN ADDITION, IT IS PROPOSED THAT GOVERNMENTAL UNITS BE MADE LIABLE FOR ABUSE OF POLICE DISCRETIONARY POWERS SUCH THAT ANYONE VICTIMIZED CAN BE COMPENSATED THROUGH THE COURTS. (RCB)