Criminal Courts 65 multiple choice assignment, due June 21.

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P A R T I I I

Courtroom Processes

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Step 9

Some Cases Don’t Make It to Court

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We’ve just seen how some of the participants in the criminal justice drama play key roles in the court system. But as this chapter will demonstrate, some of the partici- pants may not get the opportunity to play their roles, as some cases never make it to the courtroom. As one team of researchers studying the attrition of felony cases noted, “half or more of all arrests for serious crimes end without convictions” (Feeney, Dill, and Weir, 1983). In addition, a certain percentage of felony charges are reduced to misdemeanors, depending on the nature of the case and local prose- cutorial policies.

Why does attrition occur? In this chapter we will look at what activities do— or do not—become grist for the criminal justice process. Some actions, for exam- ple, are not legally defined as crimes, and therefore they cannot result in arrest until and unless the legislature acts to change this. After reading this chapter, you should have a good understanding of some of the reasons why some cases never enter the criminal justice process, or are weeded out of the process before reaching the courtroom. In particular, we will take a close look at the key role that the police play in determining which cases and suspects make it to court.

MODELS OF THE CRIMINAL JUSTICE PROCESS: FUNNELS, CAKES, AND NETS

What do you think of when you think of the criminal justice process? In order to help you visualize it, there are a variety of analogies available. One common model of the criminal justice process likens it to a funnel: wide at the top, tapering down to a narrow end. The funnel model illustrates the fact that the number of crimes that are processed through the system decreases at each step due to case attrition (see Figure 9.1). For example, the criminal process begins with a crime being commit- ted. But as we learned earlier, many crimes are not reported by victims for a variety of reasons. Of those reported, some are processed further through the legal system,

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but at each stage of the process fewer and fewer cases are handled by the system because cases are shunted out of the system at a variety of points along the way.

Another model for conceptualizing how cases are processed in the criminal justice system uses the “wedding cake” analogy (see Figure 9.2) (Friedman and Percival, 1981; Gottfredson and Gottfredson, 1988). The wedding cake model illustrates how cases are sorted into layers depending upon their seriousness, with less serious cases forming the bottom layer of the cake and more serious cases forming the smaller layers on top. At the very top of the cake, the smallest layer represents famous (or rather, infamous) cases that attract a lot of publicity and, unfortunately, often contribute to public misinformation about the criminal justice process. Such notorious cases are not representative of the vast majority of cases in the criminal justice system.

The layers of the “criminal justice wedding cake” illustrate two important points about case processing: First, cases at different layers are accorded quite dif- ferent treatment, in keeping with the differences in case seriousness. Thus, misde- meanors at the bottom layer of the cake are handled quite differently than serious felonies in the third layer. Second, within each layer, cases are similar and there- fore should be handled consistently (Walker, 2001). Under the wedding cake model we expect minor cases to receive less attention, and thus there is greater attrition at this level, represented by the bottom layer of the cake. More serious offenses, however, are more likely to be pursued through all stages of the criminal justice process.

Another model of the criminal justice process that can help us understand why some cases don’t get to court requires us to think of the criminal justice system as a

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244 Some Cases Don’t Make It to Court

Crimes Committed

Convictions

FIGURE 9.1 The funnel model of the criminal justice process.

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net. The net has characteristics that allow some offenders to exit the net at certain points, while others struggle fruitlessly to get free but merely further entangle them- selves. For example, police may decide to let an individual who has committed an offense remain in circulation so that the person can serve as an informant and pro- vide information on the “bigger fish” of primary interest to the police. Or, as we will see when we look at plea bargaining in Step 11, defendants with little information to trade with the prosecutor may get less attractive plea deals than their accomplices in crime who have more knowledge with which to bargain. In these situations, the medium-sized “fish” may swim out of the net faster than the littlest fish, who get stuck with longer sentences. Some of the exit points from the net are built in so that some cases are routed out of the net. Other exits represent rips and tears in the net, places where it has frayed and has yet to be repaired adequately (see Figure 9.3).

THE WINNOWING PROCESS

The common theme illustrated by the funnel, cake, and net models of the criminal justice process is that at each stage in the process cases are winnowed out (i.e., sifted out). These models illustrate case attrition graphically, which raises two important questions: (1) How does this happen at each stage or point in the process? (2) Why does this happen?

These questions require us to step back and take a look at the key decision points in the criminal justice process, and to examine the critical role that decision- making discretion plays in the criminal justice system. Discretion is the power to

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The Winnowing Process 245

Misdemeanors

Notorious cases

Serious felonies

Lesser felonies

FIGURE 9.2 The wedding cake model of the criminal justice process. SOURCE: Adapted from Walker, 2001.

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make choices: to exercise one’s decision-making abilities to choose between alter- natives. The decision points in the criminal justice process are places where deci- sions are made that determine whether and how an individual’s actions are defined as a crime and whether a criminal case is pursued. We must therefore look at the decisions made even before the “gatekeepers” of the criminal justice system— the police—are involved. At each of these decision-making stages, the choices of the actors in the legal system determine which cases make it to court and which cases do not. At each of these stages, criminal justice actors must exercise their dis- cretion in order to reach a decision.

What are these “decision points,” and what are the issues they raise for legal decision-makers? Let’s take a look (see Figure 9.4).

CASE ATTRITION AND KEY POINTS IN THE CRIMINAL JUSTICE PROCESS

The criminal justice process has key stages, points in the process of funneling cases through the system where case attrition can occur. Let’s take a look at this process and how case attrition occurs at each point.

1. What determines whether an action is defined as a crime or not? Legislators, voters, and courts all serve as sources of decisions that determine whether or not it is a crime for a husband to beat his wife, for someone to steal another person’s identity, or to surreptitiously take intimate photos of people’s bodies in public, or to fail to provide safety training for workers in hazardous industrial positions, for example.1 As our discussion in Step 8 concerning differential treatment of white- collar and street crimes demonstrated, white-collar offenses are usually treated as violations of civil law rather than criminal law. In addition, prosecutorial policies

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246 Some Cases Don’t Make It to Court

FIGURE 9.3 The net model of the criminal justice process.

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Case Attrition and Key Points in the Criminal Justice Process 247

Legislators Congress and state legislatures are responsible for enacting statutes defining crimes and their potential penalties. The substance and format of federal and state public policies on crime and criminal justice reflect key decisions made at different points in the legislative process.

Police Police departments create department policies on police actions. Individual officers make many decisions, such as whether, and whom, to stop, search, arrest, or warn; whether to initiate pursuit of a suspect, charges pursuant to an arrest, and other decisions.

Victims Decide whether to report the crime, and whether to participate in the criminal justice process to the extent there are opportunities for participation.

Defense Counsel Responsible for critical decisions such as what to advise the client, how best to handle the case, and how to locate potentially exculpatory evidence through the legal process of discovery, among other key decisions.

Prosecution and Defense Counsel Both make key decisions about possible plea bargains, jury selection in the event of a trial, and how best to assemble the evidence and the witnesses in a case and challenge the opposition’s account of events.

Judges Responsible for many critical decisions, such as those associated with the preliminary hearing, the question of bail, the admissibility of evidence, the conduct of the trial (for example, ruling on objections presented by counsel), and the sentencing process.

Juries As the triers of fact, juries are responsible for assessing whether the prosecution has proved the government’s case beyond a reasonable doubt. In most death-penalty cases, the jurors determine whether a defendant found guilty of a capital crime should receive a life sentence or the death penalty.

Prosecutors Responsible for critical decisions about cases, such as the sufficiency of the evidence, the type of charges to be filed, winnability, considerations of resources, the interests of justice, and other important decisions.

FIGURE 9.4 Decision-making in the criminal justice process

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may not emphasize aggressive pursuit of white-collar offenses, whether from lack of resources, perceived public apathy, or other reasons.

Of course, if a particular action is not defined as a violation of criminal law, then that action, no matter how ethically objectionable it might be, will not become part of a criminal court’s caseload (recall David Cash, who failed to intervene on behalf of Sherrice Iverson, the little girl killed in a casino restroom by Cash’s friend, Jeremy Strohmeyer?). Thus, you can see how decisions about how crimes are defined directly contribute to the “case winnowing” process.

2. When a crime is committed, is it detected? As we saw earlier in this book, there is a large “dark figure” of unreported crime, and many reasons for the lack of reporting. Victims may be reluctant to report crimes due to fear, shame, a desire for privacy, or other reasons. In some instances, victims of crime may be unaware of their victimization and therefore unable to report it, as for example with people who have been subjected to illegal environmental pollution from companies in their neighborhood, or people whose identities are stolen without their knowledge, or people who do not realize that violence perpetrated against them by their inti- mates constitutes a crime (e.g., marital rape).

In other cases, victims are well aware of their aggressor’s crimes, but are fear- ful of the consequences of reporting them (e.g., victims of gang violence fearing retaliation; victims of domestic violence fearing retaliation or fearing loss of fam- ily income if the abuser is incarcerated). The use of “date-rape drugs,” such as Rohypnol, to render sexual assault victims helpless can sometimes cause amnesia effects that interfere with the victim’s ability to determine exactly what happened, thus making reporting less likely in some cases (Fitzgerald and Riley, 2000). Some victims are less able than others to report crimes committed against them, such as children, the mentally impaired, or people who are institutionalized (e.g., residents of nursing homes, inmates in correctional facilities). Depending on the context, the impediments to reporting will vary. Hence, the inability to report victimization, or the decision not to report, is a significant reason why some crimes do not become part of the criminal justice system caseload.

3. When a crime is discovered, will it become a criminal case? The vast major- ity of crimes known to police are reported by citizens rather than initially discov- ered by police. Police must then determine whether or not a crime has actually been committed, and if so, who the culprit is (although this chapter assumes that the police complete criminal investigations, in some jurisdictions investigators with the prosecutor’s office may complete most of an investigation). The discovery of an apparent crime does not necessarily mean that a criminal case will result, or that a criminal case will make it all the way through the courts to conviction or acquittal. There are many reasons for this. Some crimes, such as child abuse, may be reported to child welfare agencies rather than the police. Police records there- fore do not accurately depict the extent and nature of child abuse, although the

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implementation of new reporting methods will help improve the reporting situation in future (Finkelhor and Ormrod, 2001).

Perhaps the action that was discovered and reported as a crime is not actually a violation of criminal law after all. Or, there may be insufficient evidence that a crime has actually occurred. For example, worried relatives may contact police to report that a family member is missing and urge police to investigate. However, if the person reported missing is a competent adult, and there is no indication of foul play, the police must wait a certain period of time after the disappearance occurred before investigating. The reason is that it is not crime for an adult to voluntarily decide to “disappear,” unless he or she is legally obligated to stay put (e.g., proba- tioners), and every year many families discover that this is just what their loved ones did. Of course, if a juvenile decides to “run away,” this is a status offense (i.e., an action that is an offense when committed by a minor). The police call reports of crimes that cannot be sufficiently substantiated “unfounded” reports. There are also many instances where behavior that is technically a crime is diverted from the criminal justice system by police decisions not to pursue the mat- ter. There are a variety of reasons for this, which we will discuss in detail shortly.

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Case Attrition and Key Points in the Criminal Justice Process 249

Many individuals other than those directly involved with the courts may screen cases before they reach the courts. Victims may not detect or report offenses. Police officers may exercise discretion in selecting which cases result in arrest. Many of the cases law enforcement officers screen out of the courts’ docket involve minor offenses that are not supported by evidence, or offenses that an officer feels do not warrant further involvement in the justice system (for example, issuing warnings to disorderly teenagers). Situations like the one shown in this photograph, where an officer obtains information from a victim of a crime, can result in many outcomes. SOURCE: Courtesy of Jon’a Meyer.

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4. When a crime is substantiated by police investigation and reported to the prosecutor, will it become a criminal case? Here is where the quantity and quality of the evidence and the prosecutor’s discretion are critically important. As you’ll recall from Step 5, prosecutors must use their discretion to decide which cases to pursue. In some cases, a crime has clearly been committed but the evidence is insuf- ficient to permit identification of the culprit, so the case remains in the filing cabinet, awaiting further developments. In other cases, the victim may be unwilling to press charges; this has been a very common reason for prosecutorial failure to pursue charges in domestic violence cases. In recent years, however, many prosecutors’ offices have instituted “no drop” policies in domestic violence cases. In jurisdic- tions with such policies, prosecutors will pursue charges based on other evidence even where the victim refuses to press charges (or agrees to cooperate by signing a complaint, but later asks that charges be dropped).

A certain percentage of cases reflect arrests of the wrong person, where despite police investigation, the person apprehended is not the actual culprit. As you’ll recall from Step 5, in some instances prosecutors decide that the case is not “winnable,” or that in the interests of justice, the case should not be pursued. At the federal level, for example, U.S. attorneys may decline to prosecute cases not only for insufficient evidence, but for reasons such as lack of resources, lack of criminal intent, alternative resolution of the matter, or the fact that the nature of the case makes it of “minimal federal interest” (U.S. Department of Justice, 2000, p. 24). Thus, for a variety of reasons, reflecting both case factors and organizational fac- tors (e.g., resource limitations), prosecutors decline to file charges in a certain per- centage of cases, or request dismissal of cases that haven’t “panned out” after further investigation.

Prosecutorial policies on case screening, case filing, and case priorities are therefore a central source of case attrition. However, it is important to keep in mind that case attrition in and of itself is not necessarily a problem; whether it is prob- lematic depends upon what kinds of cases fail to make it through the criminal process, and the reasons why they are weeded out. Cases where there is insufficient evidence that a crime has occurred, or insufficient evidence that the suspect arrested is the actual culprit, are appropriately screened out by prosecutors. In con- trast, prosecutorial resources may be focused on identifying and pursuing repeat violent offenders. However, these are often difficult goals to achieve, for example, because it is often hard to accurately pinpoint the most serious repeat offenders due to lack of information and resources (Chaiken and Chaiken, 2000). The words of Feeney, Dill, and Weir, (1983) discussing attrition, illustrate this concept well:

A high prosecutorial conviction rate may be a sign of excellent prosecutorial performance or of overly conservative charging policies; the best test is not the rate itself but the kind of charges not filed. A high attrition rate may be a sign of lax performance by either the police or the prosecutor, illegal or highly aggressive police work, or a very careful police command and control system that keeps unusually detailed records of police arrest activity.

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5. Suppose the prosecutor pursues a case. As we saw in Step 3, at the prelimi- nary hearing the prosecutor must present sufficient evidence that there is probable cause to believe that the accused committed the alleged crimes in order for a judge to order the case bound over for trial. If the prosecutor does not meet this burden of proof, the judge will dismiss the case. In instances where the matter has gone to a grand jury, the prosecutor will present evidence to grand jury members and ask them to return an indictment. As you’ll recall from Step 5, grand juries are fre- quently criticized as being “rubber stamps” for prosecutors, but in some cases grand juries have refused to return an indictment. This is another avenue, then, through which cases may not make it to court.

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Case Attrition and Key Points in the Criminal Justice Process 251

BOX 9.1

Resurrected Cases: Cases That (Almost) Didn’t Make It to Court

In 1981, Sylvia Edgren, a mother of two, was kidnapped, sexually assaulted, and murdered in Monterey, California. Police collected physical evidence and stored it, but at the time there were few leads in the case. DNA analysis, the scientific technology that would help pinpoint the iden- tity of criminal perpetrators, was in its infancy, so the case remained open in police files. In the two decades since Ms. Edgren’s murder, developments in DNA testing have begun to revolu- tionize the criminal justice process. The newspapers report stories almost daily of DNA analysis being used to identify criminal suspects, and to exonerate those mistakenly convicted of a crime. In the Edgren case, Monterey police took advantage of a new Justice Department DNA databank of known felons to see if the evidence in the case matched the samples from the indi- viduals in the databank. In January 2001, police arrested suspect Michael Adams after the data- base reported a match between the Edgren case evidence and Adams’ DNA profile, which had been filed in the databank after a 1987 conviction (Goodyear and Hallissy, 2001).

The Justice Department databank has produced several other “cold hits” that reveal a pos- sible match between DNA from case evidence and DNA profiles in the databank. One such case is that of David McIntosh, who was about to be released from state prison after serving his sen- tence in one case when the databank identified him as the suspect of interest in the 1984 murder of thirteen-year-old Heidi Marie Fredette. McIntosh has been charged with capital murder in her death, and the case is proceeding at this writing (Goodyear and Hallissy, 2001).

In the midst of this technological revolution, however, it is important to remember that DNA evidence is not infallible; if not collected and preserved properly, it may become degraded or contaminated. And DNA evidence, like fingerprint evidence, is not proof per se that a suspect committed a crime: it is relevant to the question of whether or not the suspect was present at the crime scene, but it does not reveal when or why the suspect was there (National Institute of Jus- tice, 1999).

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POLICE: THE “GATEKEEPERS” OF THE CRIMINAL JUSTICE SYSTEM

The most publicly visible representatives of our legal system, and arguably of our government as a whole, are the police. Police officers are front and center in the frequency and range of their contacts with members of the public; in 1999, for example, about 21 percent of U.S. residents had at least one contact with the police. About half of these contacts were traffic stops, and another 19 percent of police-public contacts were for the purpose of reporting a crime (Bureau of Justice Statistics, 2001, p. 1). Police play a critical role in the legal process because their actions influence those of all other legal actors in the court system. Police are the “gatekeepers” of the criminal justice system in the sense that their decisions deter- mine who “gets in” to the system and who does not, and police evidence-gathering activities form the basic foundation for a criminal case. Thus, the decisions that police officers make determine which cases go into the “funnel” or the layers of the “cake” (or are caught in the criminal justice “net”) and shape the “raw material” that the prosecutor has to work with. Unlike many bureaucracies, in the criminal justice system some of the most critical discretionary decisions are made by line- level officers in the bureaucracy rather than higher-level officials (Tonry, 1993, p. xiv). Given their importance, let’s look at the role police play in more detail.

There are social, legal, and ethical dimensions to police conduct that are unique to the occupation of law enforcement, although the ethical dilemmas inher- ent in police work share similarities with other occupations (e.g., medicine and law). Police work is unique in that it is characterized by the twin themes of author- ity and danger (Skolnick, 1966). Police are the only members of society who are legitimately authorized to use force, including deadly force, to respond to conflicts in both the public and private realms. Therefore, police have unparalleled author- ity, which carries with it commensurate responsibilities to exercise such life-or- death power in a lawful manner. The concept of danger is also central to policing, because although most police work does not involve actively chasing dangerous criminals (contrary to popular depictions on television cop dramas), the potential for an officer to encounter a dangerous situation characterizes much police work.

Police spend most of their time maintaining order and providing service to community members, and the least amount of time performing law enforcement activities (Richardson, 1974). However, these three categories of police activity are highly interrelated, and effective police work depends upon all three types of activi- ties. This also highlights the very broad variety of tasks that police in our society are asked to perform; in essence, police wear many and varied “hats.” When something appears to be amiss, police are usually the first people called, and as such they respond to an infinite variety of problems requiring them to do something in response. The complex nature of police work is captured in one researcher’s concep- tualization of police as a “regulatory agency”: “They regulate relationships between

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citizens and between citizens and institutions” (Klockars, 1985, p. 105). Yet, police must often act with little information and little time to gather, evaluate, and consider information; police must often “run roughshod over ambiguity” (Herbert, 1996). As one researcher summarizing the results of extensive field studies of police work notes: “. . . field observations document . . . the realization that the police had to improvise their way through many situations” (Goldstein, 1993, p. 33).

There are contradictions inherent in the role of the police in our society. As a democratic society, we place a high emphasis on individual freedom and liberty. Yet totally unconstrained liberty would result in civil disorder, with people con- stantly infringing on the rights of their neighbors; thus your right to enjoy peace and quiet at midnight on a Sunday so that you can do well on your Monday morn- ing exam requires that I refrain from playing music too loudly at that hour. Should I fail to recognize this, you may decide to call your local police to help impress this fact upon me. Police therefore must help maintain the balance of order and liberty, of restraints on individuals’ activities in the interests of the greater good, and of respect for individual freedom and civil liberties that are the essence of a demo- cratic society. While maintaining order in our diverse, pluralistic society, with its consequently localized and sometimes conflicting norms about what constitutes “order,” police must wield their authority and their power to exercise discretion (i.e., to make choices) in determining how to perform their work very carefully. For if police do not observe constraints on their behavior, we risk having infringement on our liberties by police themselves.

It is clear that police work involves many dimensions, and police activities directly influence the work of other actors in the criminal justice process, most notably the prosecutor and defense attorneys. The quality of the evidence gathered by police in their investigation of a potential crime determines whether the prosecu- tor will be able to file charges in a particular case. Yet, one study found that most case attrition occurs between the time of arrest and the filing of charges (Petersilia, Abrahamse, and Wilson, 1987). It is important, then, that police and prosecutors have a good working relationship and communicate clearly about how to achieve mutually desired goals. For example, research on the effectiveness of police proce- dures has noted that whereas police only need probable cause to arrest, prosecutors may be reluctant to pursue a case if the evidence won’t meet the reasonable doubt standard. This suggests that successful prosecution efforts require better communi- cation between police and the district attorney’s office; for example, the develop- ment of guidelines that clearly indicate to police officers what types of evidence and information are needed by the prosecution in order to successfully pursue a case (Petersilia et al., 1987). This would help avoid breakdowns in communication, which is another reason why some potential cases don’t make it to the courtroom.

The multifaceted nature of police work means that police are frequently called upon to exercise their decision-making abilities. For example, perhaps you have been pulled over for speeding. If so, the officer may have given you a speeding

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ticket. However, the officer may have let you go with only a warning. This is one of the most common examples of police discretion in action, and it illustrates how dis- cretion is a key feature of police work (Goldstein, 1960; Davis, 1975; Bordner, 1983). Discretion is inherent in police work both at the level of police department policies and priorities, and in the daily decision-making of individual officers. For example, police departments must decide how to allocate their personnel and other resources, which means deciding what kinds of crimes should receive high-priority attention by police and which ones can be de-emphasized. In setting such priorities, police departments must consider the priorities of other agencies that they work with and the needs of the communities in their jurisdiction.

At another level, individual officers must decide whether or not to initiate a vehicle pursuit of a suspect, and if the pursuit becomes a high-speed chase that poses a danger to the public, whether and when to discontinue the pursuit. Officers also make daily decisions about whether to stop and question people, whether to offer assistance to stranded motorists, and whether to ask loitering teenagers or homeless people camped out on public property to “move along.” A useful defini- tion of police discretion is the following (Davis, 1969):

A police officer or police agency may be said to exercise discretion whenever effective limits on his, her, or its power leave the officer or agency free to make choices among possible courses of action or inaction.

Far from being an aberration representing a departure from the “ideals” of law enforcement, then, the exercise of discretion is part and parcel of policing and is thus a fundamental feature of police work. An officer who decides to take action where she or he has the choice of whether to do so, such as deciding to stop or arrest someone, rather than simply letting the matter rest, is exercising discretion. But the officer who decides to avoid action, by choosing not to pursue a case, or not to enforce the law to the limit in a particular situation, is also exercising discretion; in such situations, the decision not to pursue the matter means that some incidents (and therefore some suspects) will never make it to court. However, police failure to take action can sometimes result in civil liability lawsuits against police depart- ments. Police departments have been sued for failure to arrest in cases of domestic violence, for failure to stop and offer aid to motorists, and for failure to arrest sus- pected drunk drivers who were stopped but merely warned by police (Kappeler, 1997). The success of such lawsuits varies depending upon the circumstances of the case, the legal theory underlying the lawsuits, and the nature of the applicable precedents.

The central role that discretionary decision-making plays in policing is due to the nature of the institution of policing and the nature of police work. Due to lack of resources, police cannot practice full enforcement of the law: it is not possible to investigate all crimes and pursue all lawbreakers. It is also arguably not desirable from a societal perspective for police to take a “total enforcement” approach, as

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this would ignore public sentiments that support more vigorous enforcement of some laws than others. For example, if the police were to suddenly begin earnestly attempting to enforce all violations of the speeding laws, public outcry would almost certainly result. Many people in society would not appreciate full enforce- ment of the gambling laws, either, if it meant that the charity bingo event held in the local church had to be canceled, or that people gathered in a private home with friends to wager modest sums on a hot poker game would be arrested and hauled off to court.

Even if police possessed the resources to enforce most laws “to the letter,” scholars of policing and sometimes police themselves can point to circumstances where police probably should not practice full enforcement. For example, both the actual security of the public, and residents’ feelings of safety and security, may be better served when police choose not to enforce the law at a particular time and place (Cohen and Feldberg, 1991). For example, Cohen and Feldberg discuss the dilemma faced by police providing security at a large rock concert. The concert is well under way, with thousands of fans jammed into the area in front of the stage. Some of the concert-goers are drunk or drugged, and there are cash drug transac- tions openly occurring in this area during the concert. Police can see this, and some fans may wonder why the police do not immediately move in and grab the sus- pects. However, this situation poses a dilemma for police, because they must con- sider the possible risks to public safety if they should attempt to nab the dealers right then and there. Police action under the circumstances might spark hostility and result in drunk, drugged fans becoming enraged and battling police and each other, with innocent people harmed in the process; this is the exact opposite of the police goal of maintaining public safety and security at this concert. Thus police should consider whether a better alternative from a public safety perspective might be to wait until the concert is over and try to catch the suspects as they leave (Cohen and Feldberg, 1991, pp. 70–88). In the words of one researcher, “police discretion often means choosing between enforcing the law or maintaining public order” (Vick, 1985).

The increasing emphasis on police-community relations fostered by a shift toward “community policing” also raises the question of the degree to which offi- cers should take local norms and customs into account in exercising their discre- tion. For example, if city regulations prohibit alcohol consumption in public, should police enforce this law to the same extent in all neighborhoods in that city? What if it is a common, generally accepted custom in some neighborhoods for res- idents to sit out on their front porches on a hot summer evening while drinking beer? In this context, police enforcement of the law may elicit a different reaction from residents of this community than in another community with different local customs. It could thus be argued that policing that is responsive to the community should take community norms into account, and that this is preferable to “across the board” enforcement of the law without the reasoned exercise of discretion

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(Kelling, 1999). However, this argument makes the questionable assumption that there are shared community norms, despite the fact that there may actually be little community consensus on which behaviors are acceptable or not. Such situations raise important challenges for police departments and individual officers, chal- lenges that once again illustrate the central role that police discretion plays.

Police departments and individual officers alike must consider how best to use their limited resources to focus on the most pressing needs of their jurisdiction. Which problems pose the greatest threat to the community? Which problems are of greatest concern to the community? Sometimes, problems of concern to many in the community may not be actual crimes, but rather issues of maintaining order, such as residents’ perceptions that loitering teenagers pose a threat. In Berkeley, California, a city famous for its history of political activism, merchants reported concern to police about the growing number of “day laborers” seeking work on the streets. The merchants complained about the presence and activities of the day laborers, many of them illegal immigrants whose sole means of support consists of participating in the daily scramble when a driver pulls up to offer a job (usually involving unskilled or semi-skilled labor for very modest compensation). Is this a matter for the police to address, or should the Berkeley City Council instead (or in addition) try to come up with a solution that addresses the needs of the merchants, their customers, and the laborers themselves?

The nature and extent of crime and public order problems facing police vary from area to area, and police priorities reflect this fact. Police officers must fre- quently exercise their discretion during the course of the situations they encounter daily, and the local context provides different challenges. In large urban areas, for example, police are far less likely to be concerned by the discovery of a window box sporting cannabis plants among the marigolds than they might in a small town. Similarly, police in rural areas must deal with crimes that urban police officers probably rarely encounter, such as crop and livestock thefts. A farmer whose valu- able avocado crop has been harvested and trucked away by midnight thieves faces a significant loss of livelihood, and a rash of such crop thefts is likely to be a high priority for the police or sheriff in agricultural areas.

Because police are the “gatekeepers” of the criminal justice system, their decisions affect the criminal justice system and society as a whole. Police officers’ decisions about how to respond to domestic violence calls, for example, determine whether and how public policies designed to deter domestic violence (e.g., manda- tory arrest) are actually implemented. This example illustrates why the role of the police, and police discretion, is so central in the criminal justice process: Police are the ones who translate “law on the books” into “law in action” through the deci- sions they make in the course of their work. The most carefully thought out crime policy will have little meaning if it is not put into practice by criminal justice actors, such as the police (and members of the courtroom work group).

Police discretion, and community perceptions of how police exercise their powers of choice, have important implications for police-community relations. For

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example, police policies and practices regarding traffic stops may be a key influ- ence on community perceptions of police and the criminal justice system, as con- troversies over the issue of racial profiling illustrate.

Due to the individualized nature of the situations police encounter in their work, they must make decisions about how to respond in each case; although the actions of police are in theory guided by the law and by police department policies and guidelines, in practice police officers must determine which rules are relevant and how to apply them to the particular situation at hand. Discretion, therefore, is an inherent and necessary characteristic of police work. It allows police to tailor their responses to individual situations and to prioritize which tasks they should focus on. For instance, going back to our traffic violation example, an officer who stops you for speeding may decide not to ticket you because you have no prior moving violations, you were only going a few miles over the speed limit, and you promise not to speed again. If any of these factors were different, however, the offi- cer might decide instead to issue a ticket. Therefore, you can see how discretion opens up the potential for selective enforcement of the law, for favoritism and bias.

THE PROS AND CONS OF DISCRETION

Herein lies a recurring societal dilemma: we want personalized justice rather than mechanized, across-the-board rote application of the law by our police, but we also want equal treatment of similar cases and offenders. This is the dilemma of “equal- ity versus discretion” (Wrightsman, Nietzel, and Fortune, 1994). Sometimes, we appear to want police officers to use their discretion to fail to enforce the letter of the law when we believe that this is appropriate. If you have received a warning about speeding instead of a ticket, you probably feel the officer acted appropriately in exercising discretion in your case; and many people would approve such discre- tion by an officer who stops a speeding car only to discover that the anxiety-racked driver is a husband trying to make it to the hospital before his wife gives birth in the back seat. Yet discretion by police often brings cries of “foul!” as well, as when police appear to be favoring certain individuals or groups. The way we perceive police discretion (or discretion by other criminal justice system actors, for that matter) may depend upon how we conceptualize justice. Cohen describes two dif- ferent views: the idea that justice represents treatment particularized to an individ- ual; and the idea of justice as equal treatment (Cohen, 1985). However, think about the concept of “equal treatment” for a moment. Does equal treatment necessarily mean identical treatment of all similar cases? Alternatively, if we conceptualize “equal” treatment as meaning “fair” treatment, this might suggest that we could— and perhaps should—treat everyone fairly not by handling all cases in an identical manner, but by customizing justice to take into account the particular circum- stances of the case. Thus, for example, under this definition of “equal” treatment, we might want a police officer to respond differently to a driver who was weaving

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slightly because he or she was distracted by the earsplitting caterwauls of an unhappy cat in its backseat carrier, versus a driver who was weaving due to imbib- ing during lunch. On the other hand, differential treatment raises the specter of bias (whether negative or positive, in the sense of favoritism), and therefore police dis- cretion is a source of continuing controversy.

What Influences Police Exercise of Discretion?

Now that we’ve seen how important police discretion is in determining which cases make it to court and which do not, let’s look at some of the evidence on how police exercise their discretion. How often, and in what types of situations, do offi- cers actually choose to exercise discretion? What factors influence the way that police use their discretion?

Research has shown that the nature and extent of the exercise of discretion by police varies according to the characteristics of the officer, the police department, the nature of the offense, the relationship between the victim and offender, and possible penalties for the offense.

Officer/Department Characteristics Influencing Discretion

Studies of police discretion have found that organizational characteristics of the police department and the characteristics of officers themselves can influence how officers exercise discretion. For example, the likelihood of officers arresting a sus- pect rather than choosing not to arrest may vary by the organizational structure and size of the police department (Smith and Klein, 1984; Mastrofski, Rilti, and Hoff- master) 1987). A study of Maine police officers’ use of discretion in handling driv- ing offenses found that officers who felt that penalties for such offenses were too harsh were less likely to cite or arrest offenders, and that officers with fewer years in service were also more likely to exercise discretion (Meyers, Heeren, and Hing- son, 1989).

The Nature of the Offense/Offender

Police perceptions of the members of the public they encounter can influence their exercise of discretion as well. Research examining police discretionary decisions in nonfelony cases in three selected Southern cities and towns in the United States found that African American suspects were treated less favorably than white sus- pects by police (Powell, 1990). However, other research did not find this effect for race (Klinger, 1996). Another study found that Danish police were more lenient with citizens they perceived as respectable and law-abiding, in contrast to those for whom they made less favorable attributions (Holmberg, 1998). An experiment examining influence on discretion with Australian police found that officers’ per-

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ceptions of the credibility of victims alleging that they had been raped varied with the victim’s level of inebriation (Schuller and Stewart, 2000). While the results of such studies may not be applicable in other locations, they are instructive in illus- trating the vast range of potential influences on police discretion. As Brooks (2001, p. 25) discusses, there are conflicting interpretations of research examining the relationship between citizen demeanor and the responses of police officers.

Not surprisingly, officers’ perceptions of the nature and seriousness of the activities they encounter in their work affects their reactions. For example, police encounters with juvenile offenders reveals that juveniles suspected of a felony are usually arrested, but those suspected of less serious crimes are usually not arrested, but are handled through “informal” means (Berger, 1996). In another study, approx- imately half of police officers who witnessed elder mistreatment reported the prob- lem, and an even smaller percentage reported exploitation of elders (Daniels et al., 1999). Another study illustrated the complexity of police decisions about how to handle people who appeared to be mentally ill and in need of assistance (Green, 1997). Police decisions about whether to arrest people who appeared to be men- tally ill, versus other options, such as transporting them to a hospital or simply try- ing to talk to the person and calm him or her down, depend upon a variety of factors. For example, the officer’s estimate of the probability that the person presents a danger, and the officer’s perception that the person’s behavior might escalate into a situation requiring further police intervention, influenced officers’ responses in such situations (Teplin, 2000).

As has been mentioned earlier in this book, the nature of the relationship between a victim and an offender has historically been an important determinant of police response to certain kinds of crimes (Black, 1980). Police have traditionally been less likely to arrest the suspect the closer the suspect’s relationship to the vic- tim, especially in cases of domestic violence or rape. In recent years, public atten- tion and activism has illuminated this situation, and thus the disparity in police response to these kinds of cases (versus other kinds of cases) is less than it used to be. Nonetheless, as is discussed in the following section, police discretion ulti- mately determines how and when the law is applied by officers working the streets. For example, Buzawa and Buzawa (2001) discuss research showing significant variation in the degree to which police officers have actually implemented manda- tory arrest policies in domestic violence cases.

Police Discretion and Offense Penalties

Crime policies that mandate that certain actions be taken in response to a potential or actual offense provide an illuminating example of the importance of discretion in criminal justice decision-making. For example, research has shown that “mandatory arrest” policies requiring police to arrest suspected abusers in cases of domestic violence are not necessarily enforced 100 percent by the police; that is, in

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some cases, despite such policies, arrests may not be made (Lerman, 1992). Simi- larly, statutes mandating police arrest of suspected drunken drivers may not be fully implemented by some police departments and officers (Meyers et al., 1987). In one state, when a new law was passed mandating that anyone caught carrying a handgun under certain circumstances faced a mandatory jail term of no less than one year, observers questioned how this influenced the likelihood of arrest. Some critics of the law suggested that some officers may have altered their behavior in order to avoid subjecting citizens unfairly to the perceived harsh penalties of the new law. Research does suggest that police enforcement of the law varies accord- ing to community norms and values (Goldstein, 1960).

THE ARGUMENT OVER POLICE DISCRETION

Some argue that police have too much discretion, and this results in bias, discrimi- nation, and favoritism in the types of cases and offenders who make it to court. A related criticism is that when police exercise discretion in deciding how to enforce or not enforce the law, they are taking the law into their own hands and in effect usurping the power of the legislature to determine what the law is (Klockars, 1985). For example, critics cite evidence from law enforcement files, which shows the practice of racial profiling by police in some jurisdictions (American Civil Lib- erties Union, 1999; Zamora, 2001) (see Box 9.2). Others point to the reluctance of some police departments to pursue certain kinds of cases, such as rape cases.

The coercive authority of police to place an individual under arrest raises many questions about the nature and impact of police discretionary decisions asso- ciated with this power. Police sometimes choose not to make an arrest even when there is sufficient evidence that a crime has been committed and the suspect is known (Goldstein, 1993, p. 34). For example, we saw that police are less likely to make an arrest in assault cases when the victim and the suspected offender have a close relationship (Black, 1980). At the other end of the spectrum, when police officers arrest someone without intending to prosecute the person (for example, in order to compel a witness to reveal what they know to the police, or to intimidate suspected gang members), this raises ethical and legal questions about the appro- priate purposes of the power to arrest (Goldstein, 1993, p. 35).

In contrast to those concerned that the police possess too much discretion to interpret and apply the law, some people argue that police have too little discretion, and that this lets some offenders slip through the cracks because police cannot use certain tactics. For example, adherents of this position argue that the Fourth Amendment prohibition on unreasonable searches and seizures, and the concomi- tant exclusion of evidence that is illegally obtained under the Exclusionary Rule, serve as undesirable constraints on police. However, the evidence does not support this assertion (Fyfe, 1983; Nardulli, 1983). Similarly, it has been argued that police

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The Argument Over Police Discretion 261

should have greater leeway in the interrogation techniques that they may legally use to obtain a confession from a suspect. Others argue, however, that police are already allowed too much leeway in this regard.

A realistic perspective on police discretion recognizes that it is an inherent and inevitable aspect of police work that can be used to achieve both desirable and undesirable legal and social ends. For example, in addition to allowing police to “tailor justice” to accommodate mitigating circumstances, police discretion may help blunt the impact of “bad laws”; that is, statutes which may be ill-considered in design or application, perhaps because the law is outdated or reflects hasty policy- making by lawmakers (Klockars, 1985). However, police discretion also allows police misconduct and abuse of power to occur. For example, decisions to selec- tively enforce or not enforce the law with respect to certain categories of people (certain ethnic groups, students versus seniors, poor compared to affluent people) can not only have life-changing consequences for the individuals involved, but can harm public perceptions of the legitimacy and fairness of the criminal justice sys- tem as well.

One thing is clear concerning police discretion: The manner in which police discretion is exercised is critically important, for a number of reasons. Police

BOX 9.2

The California Highway Patrol and Racial Profiling

“You kiss a lot of frogs before you find a prince.” Although this statement might remind you of a child’s fairy tale, it actually represents the words of a California Highway Patrol (CHP) Super- visor testifying under oath at a legal deposition (Zamora, 2001, p. A1). The supervisor was dis- cussing the CHP practice of stopping motorists in the search for drugs, and asserting that many stops must be made in order for officers to successfully locate a driver transporting illegal drugs. The supervisor was testifying in response to a 1999 lawsuit against the California Highway Patrol by the American Civil Liberties Union (ACLU), alleging that the CHP selectively tar- geted minority drivers for traffic stops. In response to the allegation of racial profiling, in 2001 many internal CHP documents were turned over to the ACLU as part of the process of discov- ery. According to the CHP’s own statistics, in some parts of California, Latino and black drivers were two to three times more likely than white drivers to be stopped, and more likely once stopped to be asked by CHP officers if their cars could be searched. This was particularly notable because of the fact that the California Highway Patrol had released a public report the previous year (2000) that concluded that there was little evidence to support concerns about racial profiling by the CHP (California Highway Patrol, 2000). However, in response to the CHP supervisor’s “frog” reference, one ACLU official noted: “The obvious problem is that most ‘frogs’ the CHP is stopping are Latino and African American . . . who are forced to endure the loss of personal liberties because of their skin color . . .” (Zamora, 2001, p. A1).

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decision-making about which goals to pursue and what means can or should be used to achieve these goals influence a number of stakeholders, including individuals who come in contact with the police, the general public, agencies and individuals that comprise the legal system, and the police themselves. However police determine which tasks take priority, and which crimes and suspects merit more or less attention, the consequences will be felt in a number of ways. Thus, for example, police deci- sions about which kinds of crimes are top priority determine what cases prosecutors and other members of the courtroom work group eventually see; police discretion determines the degree to which public policies on crime are implemented (e.g., mandatory arrest policies); and police discretion has an enormous impact on police community relations, and the perceived legitimacy of the criminal justice system. Police discretion can result in decisions that raise legal as well as social issues for police departments (e.g., “hot pursuits” of vehicles by police can expose police departments to civil liability lawsuits by third parties who are injured in such chases).

Given this, it is not surprising that an enduring topic of both theoretical and applied research on police and policing is the question of how police discretion can be regulated. How much discretion should police officers have? How can officers be

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BOX 9.3

Free Coffee and Pie?

You are an officer who occasionally stops by a café for a coffee on your break. After several vis- its during which you and the café owner, “Ted,” make pleasant small talk, the friendly owner begins to insist you take free coffee and pie whenever you stop by. “I just want to show my appreciation for the hard job you folks in blue are doing for our community,” says Ted.

Should you accept? Why or why not? Now suppose one night you pull over a driver who just ambled slowly through a bright

red light. No other cars were around, so no one was hurt. You recognize that the driver is Ted, the café owner. He apologizes repeatedly for running the light, explaining that he was tired from having slept poorly the previous night. After explaining, Ted says “Hey, you aren’t going to give your old pal here a ticket for a little mistake like that, are you?” What are your options as an offi- cer responding to this incident?

1. How are you going to handle the ticketing decision? 2. Should you keep going to the café and accepting free food after this?

Remember that perceptions are critical: your perception, as an officer, of the café owner’s intent; the owner’s perception of you in your role as a representative of the government; and other onlookers’ perceptions of your actions. Given this, what do you think are the possible con- sequences of your decisions about the issues in (1) and (2) above?

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trained to develop their abilities to exercise good judgment during crucial decision- making tasks? Even the most seemingly trivial decisions facing a police officer can have significant repercussions for police–community relations, as the example of the “free coffee” dilemma in Box 9.3. How can discretion that is abused be sanc- tioned? What methods are available for regulating, reducing, monitoring, or other- wise influencing the amount of discretion officers have and the opportunities they have to use discretion? Attempts to regulate police discretion have formed the sub- stance of many of our landmark criminal justice decisions (such as the Miranda doc- trine). The existence of police misconduct illustrates all too well the power of discretion and the potentially deadly consequences of its abuse. However, there is also cause for optimism to be found in that efforts to regulate police discretion and prevent its abuse have shown some success (Walker, 1993).

CONCLUSION

Clearly, many, if not most, potential criminal cases never actually make it to court, for a variety of reasons. Regardless of which model of the criminal justice process one uses, the evidence shows that only a fraction of possible cases remains after the “winnowing process.” Some actions are not defined as crimes at all; other crimes are not reported to police for some reason. Police discretion to make decisions about what incidents and individuals to focus on, and how to respond to potential crimes, has a huge impact on which cases make it into the criminal justice process. Prosecutorial discretion, as we saw earlier in Step 5, is the key to determining which cases brought by the police ultimately make it to court, and which cases do not. The cases that do appear in court, therefore, are only a sample, and not a repre- sentative sample at that, of the crimes that occur in our society.

D I S C U S S I O N Q U E S T I O N S

1. Consider the discussion at the beginning of the chapter on how some actions are not defined as crimes under the law. Can you find examples in your newspaper of current controversies that illus- trate this? For example, should human cloning be against the law? How might political and socie- tal pressures influence whether or not a particular activity is defined as a crime?

2. What are some of the reasons that crimes fail to come to the attention of police? What steps could be taken to address this situation (e.g., what might encourage victims to report)?

3. Why is it important that the police and prosecutors have a good working relationship in order for the criminal justice process to function effectively? What kinds of problems can result from a lack of communication between police and prosecutors?

4. Consider some of the difficulties of measuring case attrition. How should we count “lost” cases? For example, how would you account for prosecutorial overcharging when trying to determine an attrition rate? How would you figure out how many cases that “fell out of ” the criminal justice system were cases that should have resulted in a conviction, and how many cases were those that were appropriately dropped (e.g., evidence exonerated an innocent suspect)?

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5. What are the advantages and disadvantages of police discretion? How (and why) is discretion integral to the practice of policing? Why is police discretion difficult to regulate?

6. How is police discretion is linked to issues such as police misconduct, including the problem of racial profiling.

7. Why is the exercise of police discretion a critical influence on police–community relations and public perceptions of the legitimacy of the criminal justice system?

N O T E

1. For example, historically the “rule of thumb” in English law has been said to condone domestic violence by allowing a man to beat his wife for the purpose of “disciplining her” as long as the man chastised her with a stick no bigger in diameter than his thumb. Another example is this: Identity theft was not a crime in some jurisdictions until recently, when legislators quickly passed laws to address this gap in the statutes so that prosecutors could pursue cases of identity theft. Similarly, the practice of photographing people’s bodies without their knowledge, for example, by positioning tiny microcameras so as to shoot footage of women’s bodies underneath their skirts, then posting the result on the Internet, is relatively recent and poses an interesting example of the crime definition issue. Finally, the lack of adequate safety training for workers facing occupational hazards is often considered an offense, but is rarely denoted as a crime under current laws. Instead, it is usually defined as a violation of civil law (administrative regulations).

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