CHAPTER 6 4054

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Ethical Dilemmas and Decisions in

Criminal Justice Tenth Edition

Chapter 6 Police Discretion

and Dilemmas

Learning Objectives

1. Evaluate evidence that law enforcement officers perform their role in a discriminatory manner.

2. Present information concerning the prevalence of and factors associated with the use of force by police officers.

3. Enumerate predictors associated with the use of excessive force.

4. Discuss the ethical issues involved in proactive investigations.

5. Discuss the ethical issues involved in reactive investigations.

Discretion and Discrimination

Occurs when a discretionary decision-maker treats a group or individual differently from others for no justifiable reason:

• Sexual orientation

• Race

• National origin

• Poor

• Other?

Forms of Discrimination

• Enforcing the law differentially

• Withholding the protection of the law – Greater disrespect

– Greater use of force

– Racial profiling

– Greater use of pretext stops

A Racial Divide (1 of 2)

• The system of laws and punishment, the courts that

administer the laws, and the corrections system that

makes decisions regarding the liberties of those

convicted have all been described as agencies that

systematically and pervasively discriminate against

minority groups.

A Racial Divide (2 of 2)

• Complaints correlated positively to the percentage of

minorities in the population

• Some reports indicate lower-class African Americans

and Hispanics have higher negative interactions with

police.

• Residents (both black and white) are initially

disrespectful to police 3x as often as police are initially

disrespectful to residents.

Racial Profiling

• Occurs when an officer uses a “profile” to stop a driver,

usually to obtain a consent to search for a vehicle.

• Minorities are highly targeted based on the assumption

that they are more likely to commit criminal acts.

Law and Racial Profiling

United States v. Martinez Fuerte 425 U.S. 931 (1976)

• Legitimized the use of race as a criterion in profiles

Whren v. United States517 U.S. 806 (1996)

• Pretext stops upheld.

• The law allows race to be considered as only one

element in deciding to stop an individual.

Police Shootings of Blacks

• Black men are disproportionately the victims of police

shootings.

• Blacks are disproportionately involved in violent crime.

• Blacks are disproportionately more likely to assault

police officers.

• Police officers may perceive blacks as a greater threat.

Discretion and the Use of Force

• No national statistic as to number killed by police each

year.

• The FBI reports show numbers increasing even while

the crime rate has declined.

• Blacks are disproportionately shot and killed by police

• Efforts underway to obtain better statistics.

• 1994 Violent Crime Control and Law Enforcement Act

Factors in the Use of Force

• Excessive force occurs in less than one percent of

interactions with public

• Use of force occurs in 1.3 to 2.5 percent of all

encounters

• Friedrich’s 1980 study:

1. Characteristics of the target

2. Situational characteristics

3. Characteristics of the officers

4. Psychological traits

Use of Tasers (CEDs)

• The TASER is one type of CED (conducted energy

device)

• Proponents argue that Tasers:

– Result in fewer injuries to officers and combatants

– Reduce the need for lethal force

– Are safe in the vast majority of cases

• A police officer could be held liable when a CED is

used on a person who poses no immediate threat.

• Departmental policies determines acceptable Taser

use.

Responses to Uses of Force (1 of 2)

• In most use of forces incidents, officers are not indicted

or charged.

• The perception that police shootings are increasing

recently is not necessarily true.

• Officers may not be criminally charged, but might still

face discipline for violating policy.

Responses to Uses of Force (2 of 2)

• Small set of law enforcement officials have called for

new approaches in training and a renewed emphasis

on how to defuse situations to avoid the use of force.

• Police Executive Research Forum guidelines

Discretion and Criminal Investigations

Proactive Investigations

• Attempts to document crime as it occurs

• Requires a more active police role

• Often involves deception by police

• Requires “targeting” based on reasonable suspicion

• Changes police role from discovering who has

committed a crime to discovering who might commit a

crime.

Asset Forfeiture

• Laws allow agencies to confiscate and keep assets

associated with illegal enterprises.

• Actions can be of cash as well as vehicles, houses,

and other property.

• Increasing scrutiny because of the possible profit

motive for law enforcement.

The Use of Informants (1 of 2)

• Individuals who are not police officers but assist police

by providing information about criminal activity.

• They are:

– Motivated by monetary profit, revenge, dementia, kicks,

a need for attention, repentance (guilt), and coercion.

– Able to operate under fewer restrictions than police.

The Use of Informants (2 of 2)

• Becoming too intimate with informants

• Overestimating the veracity of information provided

• Potential for being duped by informant

• Using informants to entrap people (“creating” crimes)

• Engaging in unethical or illegal behaviors on behalf of

the informant

• Letting the informant invade one’s personal life

• Using coercion and intimidation to force informant’s

cooperation

The Use of Undercover Officers

• Undercover officers deceive suspects and others

• Difficult for officer and his or her family+

Continuum of Privacy Concerns

• Short Term

• Non-intimate relations

• (Buy/bust)

– Long Term

– Intimate relations

– (“Donnie Brasco”)

Reactive Investigations

• Attempts to reconstruct a crime after it occurs.

• Consists of gathering evidence to identify and

prosecute the offender.

• Investigator(s) may develop early prejudice about likely

perpetrator, which might cause them to:

– be tempted to engage in noble-cause corruption to

obtain a conviction;

– ignore or conceal evidence that contradicts their beliefs;

– overstate existing evidence; and/or

– manufacture or alter evidence.

Interrogation

• Cannot involve physical force (the “third degree”)

• Techniques of deception:

– Calling an interrogation an “interview”

– Negating the effectiveness of the Miranda warnings

– Misrepresenting the seriousness of the offense

– Manipulative appeals to suspect’s conscience

– Leniency promises beyond interrogator’s power

– Interrogator misrepresenting his/her identity

– Using fabricated evidence

Discussion Questions

1. At what age do you think racial profiling of delinquents

and criminals is appropriate or beneficial? Do you think

a person’s race becomes a predictor of behavior at a

particular age?

2. What are the laws regarding possession of a CED in

your city/state?

3. Do you believe a state should be allowed to profit from

breaking up a drug ring and seizing the money and

drugs? Should the state still be allowed to profit if they

seize your parents’ home for unpaid fines?