Journal: What Would You Do? The Facts Change/Student Replies/Professor

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C H A P T E RC H A P T E R 1010

© iStockphoto.com/Ivan Bajic

Media Library

CHAPTER 10 Media Library

V I D E O L I N KV I D E O L I N K

Buffalo Police to mandate ethics training

P O L I C I N G I N P R AC T I C E V I D E OP O L I C I N G I N P R AC T I C E V I D E O

What is your department’s experi- ence with the use of discretion and

DISCRETION AND ETHICS IN POLICING

media relations? Is there specific training for working with the media?

AU T H O R V I D E OAU T H O R V I D E O

In law enforcement, how important is it for supervisors and others to instill core values?

How does the blue wall of silence play a role in law enforcement and society?

Discretion

Ethical Considerations

Ethical Theories

Racial profiling

W E B L I N KW E B L I N K

Ethics and Integrity

AU D I O L I N KAU D I O L I N K

Despite Laws and Lawsuits, Quota- Based Policing Lingers

S AG E J O U R N A L A RT I C L ES AG E J O U R N A L A RT I C L E

Measuring Police Attitudes Toward Discretion

Whistle-blowing and the Code of Silence in Police Agencies

CHAPTER LEARNING

D

OBJECTIVES:

1. Define police discretion and the factors that influence it

2. Assess factors that can affect the use of discretion by police

3. Define the term ethics and discuss its importance in the field of policing

4. Identify and describe various organizational strategies that can be used to mitigate unethical police conduct

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ue to the multiple roles the police are expected to perform, along with

the myriad of external and internal influences that tend to shape police policy and public expectations, the right measure of discretionary authority by the police is essential. Fulfilling the police mission in a competent and responsible manner requires a sustained organizational and individual commitment to underlying ethics, accountability, and professionalism. If the police are to be perceived as professionals, they must exercise discretion wisely and ethically and remain accountable to the public they are sworn to serve.

Professional ethics outline the moral obligation to act in ways that are proper to accomplish professional goals. For police

officers, ethical conduct is especially important because of the authority granted to them and because of the difficulty of overseeing the daily behavior of police officers on the street. The public must be able to trust the police to act as if someone were watching, when most of the time, there may be no witnesses.

Author Video In law enforcement, how important is it for supervisors and others to instill core values? CLICK TO SHOW

Figure 10.1 highlights a recent poll that elicited responses regarding community members’ confidence in their police officers. As will be discussed in greater detail in Chapter 12, there is often a discrepancy in confidence based on race.

It is appropriate to consider discretion and ethics together, because they are closely interrelated. Discretion is a necessary and desirable part of policing and involves selecting among several possible courses of action. Reducing the number of unethical options is a continuing pursuit of attentive police administrators. Wise exercise of discretion by police officers demands ethical choices. Further, whether the police make wise choices or foolish ones, they are accountable to the public for their actions. Chapter 11 covers the consequences of unethical police behavior

and accountability for it.

■ POLICE DISCRETION

To perform their role competently and effectively, the police must regularly exercise their discretionary authority, and they must do so ethically and responsibly, if public trust is to be established and maintained. Police discretion can be defined simply as “the exercise of individual choice or judgment concerning

possible courses of action.”1 Discretion amounts to the perceived ability to choose when, how, and in what order to complete

assigned work.2 Efforts to define discretion are important. “If discretion is to be spoken of as a real and variable aspect of policing that is believed to influence police behavior, then it needs to be defined in such a way that it lends it to direct

observation and to quantification.”3

Figure 10.1 ■ Community Members’ Confidence in Their Police Officers

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© iStockphoto.com/belterz

Featured in the photo is a controversial

practice referred to as roadblocks or

checkpoints to conduct random safety

checks on motorists. Many question if

these checkpoints are really random in

nature.

Discretion is a normal, desirable, and

unavoidable part of policing that exists at all levels and departments within a police agency and at all levels of policing. It is important that the police are not robotic but have a sense of autonomy, exercise common sense, and interpret the law. There is a great deal of complexity associated with the discretionary decision- making process:

Whether to enforce the full letter of the law, to simply advise a citizen, or to choose a middle ground, street- level officers must incorporate all of the tools of their trade and select the plan of action most appropriate or reasonable on a case-by-case basis. Though there are many factors to consider regarding officer discretion, personal biases, prejudices, and values are not to be employed in this

decision-making process.4

Discretion is required, because the code of criminal law—as well as departmental policies—is often expressed in intentionally imprecise terms that make interpretation a necessity. In addition, police resources are limited; the police cannot be everywhere at once. Policing, like many other occupations, consists of a number of specializations, and not all departments have the specialized personnel to investigate all types of crime or provide all types of services. Finally, the police are well aware that the other

components of the criminal justice network also have limited capacities (e.g., court time, jail cells).

SAGE Journal Article Measuring Police Attitudes To- ward Discretion CLICK TO SHOW

Although police officers are not in the strictest sense judges or jurors, they must and do perform the functions of both on certain occasions. That is, they must decide the facts in any given encounter, interpret the law with respect to the encounter, and decide how best to bring the encounter to a successful conclusion. They also consider extenuating and mitigating factors.

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“The extent to which police officers are encouraged to exercise discretion varies from department to department, from shift to shift, and among divisions within the same department, but the exercise of

discretion is routine in all police agencies.”5

This is true because of the very nature of policing and because, in most cities, the police simply cannot enforce all the laws all of the time or perform all of the services demanded at the same time.

Thus, both law enforcement and policing are selective processes in which some laws

are enforced and some services are provided most of the time, while others are not. The determination of which, and when, services are provided rests to some extent with police administrators, the general public, prosecutors, judges, and other politicians, but police officers do not typically operate under immediate, direct supervision. Therefore, they are relatively free to determine their own actions at any given time.

Factors That Influence Discretion

Police officer decisions are typically influenced by factors such as the situation, setting, and suspect; departmental policy and culture; the law; victims and public safety; and financial and political expectations. Further, the education, training, and length of service of the officer and the wishes of the complainant have

been shown to affect officer decisions.6

The Situation, Setting, and Suspect

Every situation is in some measure unique, and officers must use their personal judgment about the people involved and the context of the situation; a person’s age, gender, appearance, mental and emotional state, and economic status are important details that figure into the equation. The officer must calculate these characteristics in light of a host of other things.

However, an officer who decides to render service or enforce the law based solely on the gender, race, or physical appearance of the citizen involved is exercising discretion inappropriately. Agencies can discourage such behavior; proper training can teach why such decisions are unacceptable.

An officer must quickly figure into his or her decision of how to handle a situation by also considering the severity of the offense and the potential for harm, whether there is a clear victim and how vulnerable that person might be, especially to future harm. For example, an officer may decide to follow through on an arrest in a domestic violence situation if a family member is clearly at risk, or if the complaint is not the first one. If an officer has trouble determining who is at fault in the situation, all parties may end up under arrest to ensure the safety of everyone involved.

Departmental Policy and Culture

For some decisions, there is a range of behaviors that the department may acknowledge and permit. Department practice may allow that a driver who is exceeding the speed limit by three or four miles per hour should not be subject to citation. Leadership may establish a tolerance limit of five miles per hour and instruct officers that those driving over the speed limit, but within the tolerance, need

not be cited. Or (as is true in most cases), the decision of whether or not to cite the driver may depend completely on the officer’s discretion. Although officers can still cite a driver for driving two or three miles per hour over the speed limit, they know that it is permissible to ignore or warn those who are only marginally

speeding.7

Author Video How does the blue wall of silence play a role in law enforcement and society? CLICK TO SHOW

Officers exercise discretion in performing their duties, as they must do. The agency’s leadership and supervision, as well as organizational norms and culture, can lead them to ignore rules and policies; exercise restraint and tolerance and give a person a second chance; choose to refer an individual for treatment or services instead of arrest; resort to threats, “street justice,” or force; regard tasks not related to enforcement as less than “real” police work; and add another arrest charge to help facilitate an individual’s punishment.

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Chapter 8 discussed the police subculture and some of its problematic ideas—for example, that people are not to be trusted

to follow the law or that people do not like the cops—and officers have to control and demand respect from the public. Depending on the agency, the subculture might reinforce the idea of being lenient with people who have never been in trouble, or it might support the idea that flaws in the criminal justice system justify making decisions about innocence and guilt outside the courtroom. According to the culture of some agencies, preventing crime and enforcing the law depend largely on deterrence, and severe consequences are more likely to achieve deterrence.

The Law

Of course, officers must know and follow the law. But there is a great deal of gray area in the law, often quite deliberately, and in these situations, discretion plays a critical role. In an effort to curb intimate partner violence, for instance, some states passed laws that require an arrest in many of these instances, thereby removing or

significantly limiting police discretion.8

There are advantages and disadvantages to limiting police discretion. One advantage is greater consistency in terms of how and when police officers enforce a given statute. Among the disadvantages to removing discretion is that the law effectively might have a “new-widening” effect; the police may be constrained to make an arrest when it is not really necessary.

Political and Economic Pressure

The police are also subject to political pressure to respond to high-profile or hot- button issues, and to ease up or crack down on protestors, drunk drivers, celebrities with drug problems, or undocumented immigrants, to name just a few issues. Officers answer to supervisors, and department leaders have to answer to mayors, commissioners, and lawmakers.

CompStat and other performance measures can and do lead to pressure to meet political and department expectations for citations, which can translate into significant revenue for the jurisdiction.

The Challenge of Discretion

Clearly, the exercise of discretion is necessary for effective policing, but it is not neat or easy, and problems arise. The consequences of the police using discretionary authority unethically or otherwise improperly can have devastating outcomes. These consequences include poor morale, civil liability issues, tragic and unnecessary loss of life, and public mistrust of the police.

Author Video Discretion CLICK TO SHOW

Maintaining ethical standards within the field of policing is important for reasons that may seem obvious. First and foremost, the police are public servants—agents of the government sworn to uphold the laws of the land. As such, they must be role models, on and off the job. When police officers engage in unethical or illegal behavior, it shakes the trust and confidence of the public they serve. Perhaps even more devastating, when the bond between the public and police is compromised or severed, the ideals of the entire criminal justice network may be called into question. As stated by Federal Bureau of Investigation (FBI) Director Robert Mueller, “Public corruption is the betrayal of the public’s sacred trust. It erodes public confidence and undermines the strength of our democracy. Unchecked, it threatens our government and our way

of life.”9 More specifically, another high- ranking official from the FBI stated, “The oath taken by the men and women of law enforcement to uphold the law is not an idle one. Corruption cases involving a police officer erode the public trust and thereby complicate and impede the efforts being made by the law enforcement

community at all levels.”10

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Quotas

Quotas—one type of biased enforce-

© iStockphoto.com/ftwitty

Establishing performance standards can

have the unintended consequence of

promoting biased enforcement because

officers under pressure to meet monthly

targets for ticketing may turn to

inappropriate profiling to find sources for

tickets.

ment—are arbitrary and fixed numbers of citations or stops (or some other measure of activity) that officers are required to meet on a periodic basis. Quotas are unethical and often illegal, because they pressure officers into making decisions to meet the quota requirement rather than what the situation should dictate. Quotas undermine healthy discretion.

Audio Link Despite Laws and Lawsuits, Quota- Based Policing Lingers CLICK TO SHOW

Most administrators would deny that there are quotas in their agencies, being fully aware of the controversy about quotas. Rather, they may point to performance standards, which tend to identify acceptable ticket and arrest activity of department members, using measures such as averages and medians. Regardless of the language, officer performance evaluations are often based in part on an officer’s number of tickets and arrests. In response, some officers may engage in unethical behaviors such as biased enforcement practices in attempting to meet agency expectations. One former New York Police Department (NYPD) officer turned whistle-blower about the department’s quota system, which the department routinely denies. Adhyl Polanco secretly recorded conversations at the Bronx precinct where he worked and later filed suit against the NYPD. The justification for quotas might be that it is a way to ensure productivity from officers, and such numbers are easy to calculate and compare. However, Laurie Robinson, co-chairwoman of President Obama’s Task Force on 21st Century Policing, concluded that numbers-based policing sends the wrong message to the public. “If citizens believe that tickets are being issued or arrests are being made for reasons other than the goal of law enforcement, which is about public safety,” says Robinson, “then their trust in the legitimacy of the system is really eroded.”

The problem can be made worse when officers receive pressure from city officials or police administrators to write more citations as a source of revenue. “That, according to the Justice Department, is exactly what happened in Ferguson, Missouri [where] the largely white police there wrote huge numbers of tickets for the city’s black residents, collecting

millions of dollars in fines every year.”11

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Connie Koski, Professor and Former Police Officer

The Relationship Between Police Subculture, Misconduct, and Ethics

When we think of police ethics and police corruption, we often think of personal gain such as the acceptance of gratuities, officers taking bribes or dealing drugs, or stealing items from crime scenes. What happens when officers take advantage of their power to achieve positive policing outcomes? This noble cause corruption is either unethical or illegal behavior, but the motive is pursuit of a benefit to society.

Noble cause corruption represents a form of behavior that is both complex and difficult to study because, at first glance, officers who engage in such behaviors are passionate about protecting the public, a duty they were sworn to uphold.

The pressure is great on today’s police officers from administrators, politicians, and the public to “do something about crime,” but bolstering the insularity of the police subculture—the “thin blue line”— threatens the delicate bond of trust and legitimacy between the police and those they are sworn to protect.

I worked with a group of five officers who were the pride of my department; they were often used as example of what constitutes “good police work” by many of our top administrators. These officers consistently made the most arrests and were particularly devoted to ridding the city of guns, drugs, and the dealers who distributed them and were particularly skilled at cultivating the information necessary to locate these perpetrators and illegal items. During my time on patrol, however, I often encountered people on the street (both criminals and noncriminals) who informed me that these officers regularly used “drop

guns” and “drop bags”—evidence allegedly planted by the officers in question—to make their arrests. Additionally, many of my coworkers admitted to having heard these same accusations, and, although no one would ever admit to having seen the behavior firsthand, many of my fellow officers believed these accusations to be true.

One day, I finally got up the nerve to ask one of the officers directly if he participated in such activities. I could tell by his facial expressions and body language that he was being evasive. He asked, “What difference would it make if I did?” He justified his position by stating that all of the officers in the department knew that this person or that person was a drug dealer who would be caught eventually. Therefore, why might the occasional act of “dropping a bag of dope” on a foot chase ultimately matter in the long run, so long as the dealer was off the streets? I recall being perplexed by this answer and feeling conflicted about this approach to policing. I could certainly agree that getting drugs, guns, and their dealers off the streets was a very positive thing. Ethically, however, I was strongly opposed to the methods and told my fellow officer so. He simply responded that I was naïve and I

needed to get some more “TOJ” (time on the job) to understand the value of this approach to fighting crime.

Although there was never enough evidence to substantiate any of the claims against my former coworkers, I often wondered how many residents in my jurisdiction had been affected by such practices. In many ways, I could tell that these behaviors directly and indirectly fed the long- standing mistrust of the police in the minority neighborhoods.

■ ETHICS AND POLICE CONDUCT

Perhaps the most important guide for officers as they make their decisions is ethics. Although there are many different bases for the study of ethics, for the purposes of this text, ethics is “the study of right and wrong, duty, responsibility, and personal character. . . . [We] should regard all of these concepts . . . as having an implicit modifier—‘moral’—attached to them. Ethics is concerned with moral duty,

what is morally right and wrong.”12 Ethical conduct involves “doing the right thing in the right way at the right time for the right

reasons.”13 Although ethical issues have always existed in policing, the introduction of community-oriented policing is an

example of an organizational transformation that relates to ethical decision making on the part of officers. This focus assists the police in forming a partnership with the community and increasing accountability to the public. “Because of concerns about the types of information being collected by law enforcement and how that information is retained in records, concerns have been expressed that law enforcement may violate citizens’ rights in the quest for

terrorists.”14 A greater need for more and different types of information has fostered the advancement of intelligence-led policing, which goes a step further than community-oriented policing. (See Chap- ter 7.)

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Web Link Ethics and Integrity CLICK TO SHOW

Ethics has become an increasingly important topic in discussions of police discretion. Many behaviors that were once permitted are no longer tolerated by the public. The behavior of police officers in today’s society must be beyond reproach. Police agencies should emphasize ethics in their recruitment, selection, hiring, and promoting practices to ensure the agency employs and rewards individuals of

excellent character. “Rewarding ethical behavior is the key to message sending for police executives and middle managers. The logical response to unethical behavior is the appropriate use of general orders, policies, and procedures to discipline officers for unethical behaviors and

noncompliance.”15 Former president Theodore Roosevelt stated, “No man can lead a public career really worth leading, no man can act with rugged independence in serious crises, nor strike at great abuses, nor afford to make powerful and unscrupulous foes, if he is himself

vulnerable to his private character.”16

Ethics in Police Education

It is imperative that the criminal justice curriculum in colleges and universities incorporate and emphasize the study of ethics. The same is true of basic and advanced law enforcement training programs. Ethics should be emphasized continually, and act as a thread that runs through all facets of police hiring, training, and continuing education.

Research on police ethics in education that compares criminal justice students and active police officers indicates a concerning level of tolerance for unethical behavior in both groups, albeit in different areas. Student respondents were nearly twice as likely as their police officer counterparts to respond ethically when

dealing with a scenario about an off-duty police officer stopped for driving while intoxicated, theft by a police officer at the scene of a burglary, the use of excessive force by coworkers, witnessing supervisory misconduct, and stopping an off-duty police officer for a serious traffic

offense.17

Author Video Ethical Considerations CLICK TO SHOW

However, student respondents reported a willingness to perjure themselves to keep themselves or coworkers out of trouble or to ensure the conviction of someone they knew to be guilty. Far fewer police officers and other professionals reported a willingness to perjure themselves for the

same reasons.18

To help change the cultural aversion to reporting wrongdoings of officers by other officers, criminal justice educators must understand, emphasize, and teach ethics at every opportunity. Also, police officials should require ongoing in-service training in ethical decision making for their officers. Psychological testing and applicant background investigations can focus more on eliminating applicants who have demonstrated unethical behavior. All of these measures may ultimately prove to be ineffective, however, if the police

subculture continues to reinforce nonfeasance as an indicator of group loyalty, which is deeply embedded in the tradition.

Officers are called on to recognize the moral dilemma in each situation, decide what to do within ethical boundaries, act with integrity, and follow through consistently. Peer pressure and lax administration are just two of the forces that can thwart good intentions. The 2003 National Business Ethics Survey found that approximately 40% of those surveyed would not report misconduct if they observed it because of fear of reprisal from

management.19

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1 0 . 11 0 . 1

Undercover policing is a common practice that usually involves a variety of forms of deception. For example, “the police have introduced drugs in prison, undertaken assignments from Latin American drug cartels to launder money, established fencing businesses that paid cash for stolen goods and for ‘referrals,’ printed counterfeit bills, and committed perjury.” These

otherwise criminal activities are excused for undercover cops; their “authorized criminality” allows them, for example, to maintain a fictitious identity to gather evidence in building a case against a known offender, for example.

Although undercover operations may sometimes seek merely to observe criminal behavior (surveillance operations) or to prevent crime from occurring (preventative operations), many operations encourage crime commission or consider it a necessity in carrying out a plan (facilitative operations), either through emboldening suspects—short of entrapment—or by weakening

potential victims.22

1. Should police be authorized to violate the law to carry out activities that are ultimately meant to enforce the law? Be specific.

2. Should undercover policing apply to certain types of crimes and not others? Who should decide which crimes? Explain.

Suggestions for addressing these questions can be found on the Student Study Site: e d g e . s a g e p u b . c o m /c ox p o l i c i n g 3 ee d g e . s a g e p u b . c o m /c ox p o l i c i n g 3 e

Source: “Breaking the law to enforce it:

Undercover police participation in

crime,” by Elizabeth E. Joh, 2009.

Stanford Law Review, 62(1), 1. Re-

trieved July 2012 from www.stan-

fordlawreview.org/print/arti-

cle/breaking-law-enforce-it-under-

cover-police-participation-crime.

Research has demonstrated that ethics education can assist officers in better navigating moral challenges by increasing ethical awareness and moral reasoning— two critical aspects of ethical decision

making.20

To be effective at changing bad behavior or maintaining good behavior, ethics education must go beyond lectures and must engage officers in challenging dialogue and active tests of reasoning skills.

To maintain high standards, departments must incorporate discussions of ethics into daily operations, stimulating those discussions through a variety of means including video clips, current events, and

hypothetical scenarios.21

Evaluating Police Ethics

The vast majority of criminal justice

students indicate that they would not turn

in a classmate who lied, cheated, or stole.23

A significant proportion of police officers indicated that, when they became police officers, they would not turn in a fellow

police officer who lied, cheated, or stole.24

Where does the message that it is acceptable to let others do these things without taking action originate? How has doing the right thing become the wrong thing to do?

In 1972, the Knapp Commission discovered that the majority of New York City police officers did not aggressively seek out opportunities to engage in unethical conduct, but may have engaged in minor acts of corruption, such as

accepting gratuities.25 The commission referred to these officers as “grass eaters.” They generally chose not to get involved in unethical conduct; however, they also refused to turn in fellow officers who did—and thus, in effect, condoned unethical acts. This reluctance to report wrongdoing is generally referred to as nonfeasance in the professional

literature.26 Do trainers and leaders somehow teach police recruits and tenured officers to condone unethical conduct? Unfortunately, the answer may be yes. And it may be more entrenched than is apparent. (See also Chapter 11.)

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Although parents usually teach children not to lie, steal, or cheat, many also teach them not to get involved when others lie, steal, or cheat. “It’s not your business—stay out of it!” “Don’t get involved!” “You just worry about yourself, not about other people.” This and similar advice may indeed lead youth to become grass eaters who simply turn away from lying, cheating, and stealing. They learn very early that “ratting” on another individual is unacceptable behavior in many settings, which is perhaps as detrimental as being directly involved in unethical conduct. Of course, the police subculture often builds on this consideration. Loyalty to the group (other officers) is held out as a virtue, even when it means engaging in seemingly minor unethical conduct (covering, making excuses, telling “white lies”) to protect unethical individuals. Yet, police officers are required by the Code of Conduct as well as by federal law (Civil Action for Deprivation of Rights, 1871) not to condone such behavior. According to the International Association of Chiefs of Police (IACP), a number of factors negatively influence police ethics:

Author Video Ethical Theories CLICK TO SHOW

• Changing moral standards of contemporary society

• Americans “lacking a moral

consensus”

• Increasing number of individuals who reject responsibility for their own actions

• High degree of frustration experienced by today’s police officers

• Misinformed or conflicting perceptions of the role of police and conflicting expectations about what is or should be expected from the police

• Law enforcement agencies that fail to clearly draw the legal, ethical, and moral lines in the form of clear policies and procedures, training,

supervision, and discipline27

In some cases, policy issues reflect the values of administrators who are not adequately committed to ethical conduct.

After researching thousands of incidents of serious misconduct, the single most damaging category of misconduct in law enforcement is administrators intentionally ignoring obvious ethical problems. There is nothing as negative as a chief, sheriff, director or superintendent knowing his department has ethical problems and intentionally looking the other

way, trying to make it to retirement.28

In some instances, administrators model unethical conduct on a regular basis, allowing officers to rationalize that their

own misconduct is no worse. Placing all the blame for unethical conduct on administrators, however, may encourage individual officers who engage in such conduct to attempt to escape responsibility for their actions.

In a study that examined frontline supervisors’ perceptions of police integrity, the supervisors reported reluctance to act on the misconduct of their subordinates because of the perceived unethical practices of high-ranking supervisors in their organization. The researchers posed the following question: “[T]hough supervisors may believe in the need for reform, will they act on those beliefs when they do not believe their own supervisors are legitimately committed to

improvement?”29 Realistically, the answer is probably no.

Certainly, the majority of police officers perform their duties honestly, ethically, and professionally. Still, the officers who engage in inappropriate behavior tarnish the reputation of everyone in policing and place the field in the challenging position of having to constantly convince the public that acts of police malfeasance are not widespread. Far too often, those who do the right thing by telling the truth and exposing corruption and brutality are the victims of attacks from within their ranks.

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1 0 . 11 0 . 1

Police officers in Wales are held to high professional standards. Officers have been dismissed or resigned for crimes, including “supplying drugs, possessing indecent images of children and drunk-driving.” However, many other officers who committed offenses, including “violence, traffic offenses and animal cruelty,” were not dismissed. Many argue that every incident or offense must be judged on the merits of the case. This often involves shifting the burden to the officer to prove why he or she should not be dismissed.

The Home Office believes “public confidence in the police is crucial in a system that rests on the principle of policing by consent.” Michael Levi, a professor of criminology, argues that the “figures indicate that police officers were less likely to commit crimes than the general population. The general statistics are that one in three males can expect to be convicted of something over their lifetime.”

1. Police agencies invest considerable money and resources in identifying, hiring,

and training law enforcement officers. Should law enforcement officers be dismissed any time an officer violates the law, regardless of the type of offense? Or should different offenses be treated differently?

2. Considering the importance of public trust, what measure can a police agency take to regain the public trust in the event an officer is disciplined or dismissed for criminal activity?

Source: “12 of 32 police in Wales kept

jobs after breaking the law, figures

show,” by Kevin Leonard, 2012. BBC

News. Retrieved September 2012

from www.bbc.co.uk/news/uk-

wales-16508670.

Biased Enforcement and Racial Profiling

Racial profiling occurs when an officer considers race as part of a decision to take, or not to take, law enforcement action. Legally, an officer can only consider race as part of a specific, reliable suspect description tied to a particular crime. Considering a person’s race as a basis for action is unacceptable and grounds for disciplinary action.

© iStockphoto.com/Rich Leg

Empirical evidence has documented the

existence of biased enforcement during

routine traffic stops. Black and Hispanic

drivers are both ticketed and searched at

higher rates than Whites.

The action is still racial profiling, even if the officer does not base his or her decision “solely on race,” but considers it as one factor among many. For example, if an officer takes into account a person’s race when deciding whom to stop and cite for speeding, it is racial profiling even if the driver is actually violating the law. In this case, the officer has a perfectly legitimate reason to stop and cite, but the fact that he considered race as one of many factors makes the stop illegal. That is very different, however, from a case where a person’s race is part of a reliable description tied to a crime—for example, “a male Hispanic wearing a red and blue sweater.” In that case, the officer can

consider race.

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Author Video Racial profiling CLICK TO SHOW

Though it is impossible to know how many, certainly there are police officers who continue to engage in such practices. Indeed, some well-publicized police practices are criticized as overt profiling. New York City’s “stop and frisk” program is one such practice. Even if the proportion of officers involved in such practices is small, all officers should be aware that racial profiling is grounds for disciplinary action. Harassment of individuals short of taking official action also is unacceptable. (See Chapter 12.)

Police are sworn to uphold the “rule of law” in the protection of individual rights, while dutifully enforcing traffic and criminal laws for the protection of the public at large. . . . It is essential that law enforcement administrators take every necessary action to ensure zero tolerance regarding enforcement actions that are discriminatory against any segment of the

population.30

■ LEADERSHIP AND IMPROVING

DECISION MAKING

Every police department must establish a clear code of ethical conduct that is based on a set of core values and a mission statement and then go beyond that. Chiefs and supervisors must lead by example, demonstrating that the code applies to everyone in the organization and that everyone is accountable for it.

Because the police department is a public service agency, honesty and accountability to the public are particularly important. It is extremely valuable to recognize and communicate the importance of discretion at all levels in policing. In reality, it is impossible to treat everyone exactly the same. A necessary first step in dealing with discretion is to recognize its existence and importance. Only then can departments address the proper and improper applications of discretion, be more transparent with the public, and improve on effective training.

Video Link Buffalo Police to mandate ethics training CLICK TO SHOW

Although it may not be possible to arrive at a comprehensive set of guidelines for the exercise of police discretion, it is clearly possible to improve on current guidelines. Clarifying guidelines for discretion will

assist officers themselves in behaving according to professional standards. It will also assist the community in understanding police actions. The most effective officers grasp the social and historical context in which they operate.

Leaders set the tone for the entire organization; therefore, without a strong commitment to ethical decision making by the chief executive officer and his or her entire command staff, instances of unethical or illegal practices are sure to follow.

Leaders can and must affect the ethical climate in their organizations. Subordinates learn from observing the behaviors of their superiors and the consequences of those behaviors. If leaders are rewarded for ethical behavior and punished for unethical behavior, their subordinates will learn to emulate the ethical behavior. Nothing any leader can say will have a more powerful effect than what he or

she does.31

Police agencies must have clear policies and practices. Only then will officers and community members know what is expected. Police leaders must address unethical conduct or other breeches of public trust in the most open, honest, and transparent ways possible. Any reluctance to respond will almost certainly arouse

suspicion of wrongdoing and acts as a barrier to the trust and confidence of the public in the police that are essential if the

police are to operate effectively.32

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Figure 10.2 ■ Ethics and Honesty Ranking by Profession

Source: http://www.gallup.-

com/poll/1654/honesty-ethics-

professions.aspx

When authority, power, and discretion are granted to public

officials . . . rational people presume that they will not use more than they need for their legitimate purposes, because rational people would never grant more authority or discretion to abridge liberty or use force than they believed necessary. The presumption is not of guilt but of official respect for restraint. Citizens expect public officials to justify their use of authority or power when questions

arise.33

In a 2014 Gallup poll on honesty/ethics in professions, 48% of respondents rated police honesty and ethical standards as high or very high. Figure 10.2 shows how police officers are ranked in comparison to other professions.

One approach that may be more effective in guiding officer discretion involves the use of incentives to promote voluntary compliance with policies. Such incentives include officer participation in policy formulation, establishment of specialized units to deal with specific tasks, positive disciplinary practices aimed at correcting the problem behavior without humiliating the officer involved, and more and better training on discretion in a variety of

different situations.34

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Another departmental approach is to

regularly discuss discretion, ethics, and decision making, weaving such discussions into the organizational culture. Rather than waiting for a critical incident to occur, supervisors and managers should engage their officers with scenarios and case studies, taking the opportunity to communicate important agency values, clarify law and policy, and challenge officers to think critically. By making it acceptable to talk about ethics, police agencies can better prepare their officers to face the inevitable difficult choices required of law enforcement officers. However, by discussing common dilemmas before they occur, officers will be better prepared to make the right decisions, rather than to rely solely on individual judgment. In the same way that officers continually train for tactical situations, they should continually train for ethical decisions as well.

Departments must also create systems and foster a culture that rewards ethical behavior. Administrators send key messages by taking allegations of misconduct seriously, protecting confidentiality, and counteracting retaliation for whistle blowing.

SAGE Journal Article Whistle-blowing and the Code of Silence in Police Agencies CLICK TO SHOW

It is also important that leaders realize that informal leaders in a police organization also impact police officer attitudes and behaviors. Police leaders must be prepared to immediately confront ethical violations

and punish immoral behavior.35 Law enforcement executives who are committed to ethical behavior can encourage it as follows:

1. Incorporate the ideals of ethics and integrity into their organization’s mission statement

2. Make ethical decision making part of the organization’s formal functions

3. Emphasize ethical behavior as part of the agency’s organizational philosophy

4. Implement zero-tolerance policies for unethical behavior or decision

making36

Police administrators can also mandate the study of ethical decision making during training and press training directors to stress this activity at the recruit level. In addition, training directors should revisit their curriculum designs and ensure that trainers are experienced educators who understand and emphasize the importance of ethical considerations and discretionary activities. All policies governing individual and collective police behavior should be consistent with the ideals of justice and morality.

Administrators must build safeguards into department policy that anticipate and address any tendency toward taking shortcuts or other predictable secondary leanings toward the unethical. Leaders must communicate that they support ethical practice.

Media Relations

As discussed in Chapter 6, the media, both print and broadcast, have the technological ability to transmit news stories throughout the world in a matter of seconds. For a variety of reasons, police– media relations in this country have been problematic. Many police officials—line and staff personnel alike—tend to shun media representatives whenever possible, withholding information on newsworthy events even when disclosing information could not possibly harm anyone or compromise a criminal investigation. In such cases, the media rely instead on questionable sources for information, which frequently results in inaccuracies in the story. Transparency with respect to police operations—for example, when such transparency does not jeopardize ongoing investigations—even if it involves disclosing unethical conduct or poor discretionary choices on the part of the police, may result in more balanced coverage and more focus on the positive contributions of the police.

Policing in Practice Video What is your department’s experience with the use of discretion and media relations? Is there specific training for working with the media? CLICK TO SHOW

The conventional wisdom about the most effective way of dealing with the media appears to be changing. Forward-thinking departments are viewing the media as a tool and a partner rather than an adversary from whom they must conceal as much of the truth as possible. Police chiefs are learning from past mistakes and recognizing that clear and effective communication to the public through the media is a necessity in today’s world. They are finding that their integrity and their reputation are key assets in public relations.

p.242

Police departments, like this one in

Dallas, use Twitter to inform citizens

about crime and traffic enforcement

locations, but also to build community

relations.

Progressive administrators are seeking training in media and public relations. Specialists dedicate themselves to coaching and educating police administrators on interviews, how to respond to reporters in a crisis situation, and defining the conversation and the issues. Trainers advocate for a proactive attitude, stressing the need for the police to “face tough issues head-on and speak- out when news coverage is skewed or inaccurate. . . . Law enforcement has been a victim too long. It’s time to stand up and fight back when people make false

allegations about [a] department.”37

Police departments are increasingly using social media as a tool to counter false information, define the version of events as official, and build public relations and community. (See Chapter 6.)

Intolerance of Malfeasance

Although the next chapter will discuss police misconduct in detail, the discussion of ethics inevitably comes around to how leaders must react to breaches of ethics. Rather than focus on zero-tolerance arrest policies, some police administrators adopted zero-tolerance policies concerning inappropriate conduct by department members. As previously asserted, the vast majority of our nation’s police officers perform their duties ethically, professionally, and competently. Those officers who engage in unethical or criminal activities and the departments that allow it damage the reputation of the entire field of policing. Most honest, hardworking officers know who the problem officers are, as do the command staff. The snag here is often the reluctance of officers who believe their own ethics are sound to report the wrongdoings of their colleagues. A National Institute of Justice (NIJ) study designed to promote integrity in the police profession focused on the following issues for agency staff:

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• Do they know the rules?

• How much individual and organizational support is there for those rules?

• Are staff familiar with disciplinary actions associated with violations of rules and policies?

• Do staff view disciplinary measures as fair?

• How willing are staff to report

misconduct?38

As stated in the executive summary of the report, “An agency’s culture of integrity, as defined by clearly understood and implemented policies and rules, may be more important in shaping the ethics of police officers than hiring the ‘right’

people.”39

The data also indicated that officers quickly learn how various acts of misconduct will be treated by observing their organization’s ability to identify unethical conduct and discipline errant officers. “If unwritten policy conflicts with written policy, the resulting confusion undermines an agency’s overall integrity-

enhancing efforts.”40 The report also offered recommendations for encouraging officers to come forward to report acts of misconduct by their coworkers. They included the following:

1. Making it clear that officers and supervisors who do not report misconduct will be disciplined

2. Terminating any department member caught lying during an internal investigation

3. Issuing rewards, in anonymous fashion, to officers who do report misconduct

4. Allowing for anonymous or confidential reporting

5. Regularly rotating supervisors and officers among shifts, districts or precincts, and other units of assignment (which keeps officers

from becoming too comfortable)41

10.110.1

A Shreveport, Louisiana, police officer was terminated from the department for malfeasance. The termination was based on an incident in 2010. The officer was “assisting in a prisoner transport at the Shreveport City Jail. As the officer reportedly searched the suspect, a police supervisor reported seeing the officer remove an item from the suspect’s pocket and hand it to a female standing nearby.”

The female was detained, and the

10

investigation revealed the item removed from the prisoner’s pocket was a small, plastic bag of suspected marijuana. The officer was arrested for malfeasance in office and obstruction of justice. He was subsequently placed on administrative leave until time of termination.

1. Could there have been a legitimate propose for passing the contents of an arrestee’s pockets to a bystander?

2. How should the department inform the staff of the outcome of an investigation into malfeasance? Be specific.

3. What privacy issues might there be for an officer who is under investigation?

Source: “Shreveport police officer fired

for malfeasance,” by KSLA News 12,

2011. Retrieved June 2012 from

http://www.ksla.com.

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CHAPTER SUMMARY

The use of discretion by police is a necessity in the world of

policing. The exercise of this broad power is not always underscored by responsible and ethical decision making, and the police subculture has a tremendous influence on the use of discretion.

Discriminatory law enforcement practices erode the public trust, which creates strained police community relations and a dangerous societal divide. One of the most significant such issues is racial profiling, or the targeting of minorities and other certain classes by police for no other reason than race, ethnicity, or perhaps social class. This has weakened the trust between the public and the police, particularly among minority populations.

This was not the only cost as Congress and state legislatures in the nation created laws that require mandatory data collection by police agencies regarding police encounters with citizens pertaining to detention, search and seizure, and arrests or other legal sanctions. The economic cost for the implementation of these new policies came at great expense to individual agencies.

Ethics in policing is extremely important. Unethical conduct by police ranges from violations of

department rules and regulations to more serious issues such as unlawful searches and seizures, the use of excessive force, covering up for the malfeasance of fellow officers, and abuse of authority or criminal misconduct.

Police officers must be held to a higher ethical standard than most other citizens because of the oath they take when they enter the field of policing. Honesty, integrity, responsibility, accountability, and professionalism (on and off duty) are the underlying tenets of that oath. When officers breach their fiduciary responsibilities, the consequences can be damaging to the individual officers, their respective agencies, and the communities they serve. A loss of faith or trust by those communities is a serious consequence that is difficult to remedy and helps further degrade public safety.

There are many reasons why unethical practices by some police officers continue, and chief among them are the negative influences of the police subculture, lack of strict accountability on the part of all police officers, ineffective supervisory practices, and weak or ineffective leadership structures.

Review key terms with eFlashcards.

Discretion, ethics, accountability, and professionalism are dynamically interrelated and must be addressed in a coordinated way.

Ethical practice practice is a requisite for professional status, and if the field of policing is to progress further along the path to professionalization, all parties concerned must commit themselves to achieving this end. Whether the police are able to attain this end depends, in large part, on the responsible and accountable exercise of discretionary authority.

KEY TERMS

■ Police discretion 229

■ Biased enforcement 233

■ Quotas 233

■ Ethics 234

■ Knapp Commission 236

■ Grass eaters 236

Test your understanding of chapter content. Take the

practice quiz.

■ Code of conduct 236

■ Nonfeasance 237

■ Police ethics 237

■ Racial profiling 238

DISCUSSION QUESTIONS

1. What are some of the more important ethical issues in policing? Should police recruits be taught ethics?

2. What is police discretion? How extensive is its use?

3. Why is the police subculture important in understanding discretion?

4. What are some possible negative consequences of the exercise of discretion? What are some positive consequences?

5. What factors besides the police subculture affect the exercise of police discretion?

6. Can we eliminate the exercise of

police discretion? Should we eliminate it? How might we gain better control over it?

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7. Discuss racial profiling as an example of poor discretionary decision making.

8. Discuss the evolution of the police code of ethics or conduct. Why are ethics especially important for the police?

9. List and discuss strategies that may be undertaken to improve the current state of ethical decision making.

INTERNET EXERCISES

1. Using the key words “international police accountability,” locate and discuss information concerning attempts to establish police accountability in at least one foreign country.

2. Use the Internet to locate the code of ethics or code of conduct for a police agency in your area. How does this code compare to the code established by the International Association of Chiefs of Police? In your opinion, is the code enforceable?

3. On the Internet, locate information concerning racial profiling or bias.

STUDENT STUDY SITE

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S h a r p e n yo u r s k i l l s w i t hS h a r p e n yo u r s k i l l s w i t h S AG E e d g e !S AG E e d g e !

SAGE edge for Students provides a personalized approach to help you accomplish your coursework goals in an easy-to-use learning environment. You’ll find action plans, mobile-friendly eFlashcards, and quizzes as well as videos, web resources, and links to SAGE journal articles to support and expand on the concepts presented in this chapter.