Police officers, needless to say, do no have now, and never have had, unrestrained discretion. The Constitution itself establishes many familiar limits. An officer, for example, cannot arrest suspects of crime solely at his or her discretion. The Fourth Amendment mandates that the police must have probable cause before arresting a person. Other legal constraints, embodied in both statutes and administrative regulations, also limit the flexibility of the police. For example, local rules may prescribe in detail the various booking and detention procedure that the authorities must follow after an arrest is made. The individual officer has no choice but to comply with these procedures.

Generally speaking, however, most restraints on an individual officer's actions operate in a less formal manner than those present in the Constitution or in statutes. In all police departments, some officers must supervise other officers, and this supervision guides the exercise of discretion. The view of fellow officers, even if they do not hold supervisory positions, also tends to constrain a police officer's actions, as do the various traditions established over time within a police department. These informal limits have less rigidity than legal rules, and the police rarely perceive them as a hindrance in performing their work.

Departmental discretion: Most police departments also have flexibility and discretion in conducting their work. Law enforcement agencies generally have responsibility for several missions. These missions include ensuring compliance with and carrying out the law, protecting citizens and their property from crime, ensuring safety on the roads, and finding and arresting those suspected of criminal activity. Much as an individual officer has discretion when he or she has the authority to choose how to act in a given situation, a police force has discretion when it can decided how to accomplish the overall tasks before it.

Scholars such as Abadinsky and others have observed that police chiefs and similar officials exercise their departmental discretion primarily in setting priorities. No police department has infinite funds. Money spend on reducing traffic problems could fund other activities, such as crime prevention, Likewise, money spent on carrying out the drug laws decreases the resources available for stopping other kinds of crimes. Because each police department in the United States has both a different budget and a different set of local problems to address, priorities vary greatly from place to place.

In addition setting priorities, the chief of police and senior officers generally have power to decide the style of policing that their force will employ. Some forces attempt to play an aggressive role in improving the community; others will abstain from local affairs until specifically asked for input. The police in one community may act as watchdogs or overseers, while in another community they present themselves as public servants eager to help with problems.

Although the twenty thousand police departments in the United States traditionally have enjoyed considerable discretion in these areas, both legal and practical factors constrain them to some extent. The police clearly have to respond to the specific mandates of the local city council or state legislature. Any duties that the government specifically imposes will take precedence over others that the police may want to fulfill. Besides direct legal constraints, the public also may limit the flexibility of the police through the threat of firing or reassigning the senior police personnel responsible for policies that they do not like. More commonly, they can reduce the flexibility of a force by declining to provide it with funding.

Conclusion: The law enforcement system, in sum, operates largely on principle of trust, and the police usually have authority to determine how to perform their work. Most of the present limitations on discretion, such as the power of police supervisors to review junior officers and the power of the citizens to review departmental policies, operate in a general, informal manner. Other restrictions, such as those imposed by finite budgets, constrain, the total number of activities in which the police may engage but do not prohibit them from undertaking any particular activities. Only in a few narrow instances have specific legal rules traditionally constrained the policy-making choices of police departments or actions of individual police officers.

Proposals To Limit Police Discretion

The police do not and indeed, cannot exercise their discretion perfectly. Some officers or policy-makers, without any ill intentions, simply will make mistakes. Far worse, like many others in positions of power, the police sometimes face the temptation to abuse the flexibility in their authority. Whether deliberate abuse takes the form of self-aggrandizement, including everything from payoffs to cover-ups, or simply malicious injury to others, as in police brutality cases, combining enough officers and enough discretion will produce some intentional wrongdoing.

Whenever an officer intentionally, or inadvertently exercise his discretion in a harmful way, his actions call into question the amount of discretion that the police should have. Reports of police misconduct and incompetence often appear in local papers over rather minor incidents. In more extreme cases, abuses of discretion make national news. Illustrative examples of negligent and intentional wrong catching the nation's attention have occurred within the past year:

In Milwaukee police officers responded to reports of an injured and drugged fourteen-year old boy wandering out doors. Instead of taking the boy to safety, the police misjudged the situation and returned him to the apartment of Jeffrey L. Dahmer, Dahmer subsequently confessed that he murdered the boy several minuets later, as he earlier had murdered sixteen other boys and young men.

In Los Angeles, a group of police officers who had flexibility in deciding how to subdue a suspect resisting arrest brutally assaulted a motorist named Rodney King, whom they had stopped for speeding. King suffered severe bruises and several broken bones and required hospitalization. A videotape of the incident showed police inflicting painful wounds with electric shocks from a taser gun.

Occurrences such as these, unsurprisingly, lead to proposals to limit police discretion. Families of Dahmer's victims, for example became outraged that the police had not arrested Dahmer, and criticized their discretion in handling complaints. In a similar manner, asserting that they could not trust the police to use such weapons appropriately, concerned citizens especially black citizens who felt threatened by the largely white Los Angeles police force demanded that the city bean the taser gun.

Abuses of discretion do not need to make the national news to provoke similar calls for reform. Across the nation, in response to a variety of incidents similar to those involving Dahmer and King, but less shocking in detail, members of the public have proposed a variety of legal reforms to limit police discretion. Their proposals have sought in some instances to make certain actions by the police mandatory in other instances to impose specific prohibitions on police conduct, and in still other situations to curb departmental policy-making powers.

Mandatory action. Following revelations that the police are allowing crime to occur because they decline to take actions to stop it, such as failing to aid a victim or detain an assailant, reformers often seek legal change to force police to exercise their power. These reforms, as noted above rely on the simple idea that the police cannot decline to take important actions if they have no authority to decide whether or not to act.

Recommendations for mandatory police action in the recent past most frequently have addressed the issue of arrests. The police, at present, generally have discretion to decline to arrest suspects of misdemeanors. Yet, laws mandating arrest in certain circumstances are becoming increasingly common.

Legislators in Oregon and nine other states have enacted statutes requiring police officers to make an arrest when they have probable cause to believe that assaults on a spouse have taken place. This legislation responds to outrage at incidents in which spouse battering has continued in which spouse battering has continued because police officers have failed to appreciate the gravity of an accusation of abuse. These ten states have reasoned that they cannot trust the police: if left to their discretion, they have concluded, officer would attempt to resolve spouse battering incidents through negotiations or warnings without making an arrest.

Reformers also have insisted on mandatory action in the release of information related to criminal investigations. In Canada, which is experiencing some of the same trends as the United States, an Ontario freedom of information law recently has come under attack. The law allows police departments to exercise their discretion in deciding how much crime news to release, allowing the police to withhold the names of victims and the locations of crimes.

Toronto newspapers have questioned the need for giving this discretion to police chiefs, asserting that they cannot trust law enforcement agencies to act appropriately. They also cite the need of the public to assess the value of their police forces and the risk of discrimination as grounds for diminishing discretion under the law.

Specific prohibitions. Instead of calling for mandatory action, another recent group of proposals has sought to prevent abuses of discretion through prohibitions that limit the situations in which serious abuses of discretion can arise. Just as concerned citizens wanted to take taser guns away from the police in Los Angeles, reformers have sought to limit the discretion of the police in other cities by denying them the power to use deadly force

Almost no one seeks to prevent deadly force necessary to protect a life, either that of a police officer or of the victim of a crime. Yet, proposals have been circulating to ban all so-called discretionary shooting that is, shooting in the absence of an immediate threat to life. The Boston police department recently has declined to prohibit all discretionary shooting, but other police forces have done so. For example, as a result of shooting incidents, the police in Sand Diego now must use so called middle force weapons, such as tasers, to control violent people who have not threatened other lives.

Reforms that seek to limit the discretion of individual officers may start out as means of preventing the recurrence of specific misconduct. But advocates of decreased police discretion often have broader motivations. Regardless of any specific incidents such as accidental shootings, leading to a proposal, they often favor decreasing police discretion as a general matter. Discretion, in their view, tends to make lawlessness and discrimination in the part of the police easier. Some segments of the population distrust police discretion, regardless of whether officers in their neighborhoods have abused their powers.

Departmental reforms. A final set of reforms have concentrated not on mandatory actions or specific prohibitions but one the discretion of police forces to establish their own methods of policing. Limiting the discretion of a local police department typically involves asking Congress to establish federal rules that every force must follow.

National standards of accreditation have existed for a long time. Yet, with the general trend toward limiting police discretion, new proposals for further standardization are emerging. For example, recent bills in Congress proposed to create further national standards by specifying the manner in which citizens can file complaints against the police and by declaring the policeman's rights when under investigation. These national standards would limit the discretion of local communities to govern their police forces as they choose.

At the level of departmental policies, efforts to promote national uniformity in criminal procedure whether by statute or judicial decree historically have improved conditions for the disadvantaged. For example, prior to several Supreme Court decisions in the past few decades, police had discretion in deciding whether to allow an arrested suspect to see a lawyer before interrogating him. The Court's decisions, however, established a national rule that the police must inform the suspect of a right to see a layer prior to questioning and must stop all interrogations if the suspect requests a lawyer. Rules such as these limit the discretion of police forces in determining their own procedures but ensure that citizens do not enjoy vastly different rights merely because they live in different localities.

Ideas for statewide standards also are becoming common. The Rodney King incident made the state of California aware that each of its cities largely determines its own policies. In Los Angeles, the police commission, rather then the city council has the sole privilege of firing the police chief, who has civil service protections under the city charter. In San Franciso, the board of supervisors has established a police review board and an office of citizen complaints to oversee the police. A statewide standard, reformers have noted, would eliminate these differences.

In defense of discretion

Those who wish to change the way society has arranged itself until now, whether in seeking to reform the police or any other public institution, bear a heavy burden. They must show not only that a problem exists and that their proposals have a good chance of solving the problem, they also must show that what they propose has very little possibility of making matters worse. The present order, even if flawed, at least constitutes a viable state of affairs. No one can know for sure what change might bring. For this reason, although many proposals for reducing the flexibility of the police ultimately may prove beneficial, the possible grounds for hesitating to alter the traditional forms of law enforcements also deserve attention.

Limiting the officer's discretion. Before diminishing the flexibility and discretion of individual police officers, policy makers must consider three specific points.

First, restricting the harm that the police cause by limiting their authority inevitably limits the good that the police may accomplish. However understandable their motivations, and however laudable their goals, reforms aimed at limiting police authority all come at some cost. The public originally gave police officers flexibility because it believed that they could not function well without it. The proposals to limit police discretion largely have overlooked their idea. They have concentrated on eliminating the unintended consequences of flexibility and discretion without considering the consequence of having inflexible law enforcement procedures.

Reforms that mandate or prohibit police action have clear benefits. For example, no one denies that arresting all men accused of battering their wives will prevent some repeated offenses. The police moreover, undoubtedly will inure fewer civilians if they cannot use deadly force. Yet, such reforms each have drawbacks as well. For instance, if the police in Oregon had more discretion in deciding when to arrest men suspected of beating their wives, they might save important resources to use for even more serious matters. Likewise, if the San Diego police had more discretion to use firearms, they might stop more criminal activity or lose fewer officers. Without rigorous analysis of these kinds of costs and benefits, proponents of reforms cannot justify changing the traditional levels of discretion.

Second, the reforms in general inhibit police officers from exercising common sense and compassion, two qualities that this nation long has valued. Other countries consider these values less important and have given their law enforcement officers far less discretion. In Germany, for example, the police and prosecution have very little discretion in deciding whom to arrest and charge. German law, with various exceptions, mandates prosecution of all charges for which enough evidence exists to sustain a conviction.

The rigid German model of law enforcement might replace the system prevailing in the United States. This country, however, has decided that it does not desire methodical applications of the law, even if discretion creates the possibility for unequal treatment. Most Americans understand, although perhaps only at a general level, how a lack of discretion can produce a police state in which authorities could carry out the law without any consideration of its suitability. Just as reformers should not overlook how police need flexibility and discretion to perform their work, they must consider the public acceptability of what their changes will produce.

Finally, recent reforms have not attempted to eliminate the root cause of problems in law enforcement; untrustworthy police officers. Even when the benefits of restricting police discretion theoretically outweigh the costs, reformers must consider that the benefits might not accrue in practice. Laws, however strict, have little effect on the lawless. Telling police officers that they must follow procedure and no longer have discretion may not prevent officers who have acted improperly in the past from attempting to continue their misbehavior in the future.

Any failure of the rules to control the action of bad officers presents serious problems of fairness. Officers who act properly and who did not inspire the need for restrictive rules will bear most of their costs. Addressing abuses of discretion directly, by punishing bad officers and reviewing how each officer exercises his or her personal judgment, although often more difficult and expensive, would help to reduce the incidents of police misconduct in a more equitable manner.

True, society can reduce some of the harm that errant officers cause by limiting their authority. Even the most incorrigible will follow some rules because of the sanction for violating them. Abuses, however, surely will persist until society finds effective ways to attack the problem of individual bad officers at its root. The nation needs flexible policing more than it needs untrustworthy officers that it merely has constrained.

Limiting the department's discretion. Liberty and democracy, as conceived in the United States, always have dictated that localities should have the power to choose how to govern themselves. The framers of the Constitution chose a federal system in which the national government would control only those matters that truly require national uniformity, such as the regulation of interstate of commerce, while allowing the states to adopt legislation of their own choosing for local matters. This policy furthers democracy by placing a check on the tyranny of one part of the country over another and bringing each individual closer to the representatives that govern him.

Because the federal government allows localities to supervise their own police, departments throughout the country operate under different rules and procedures. Each department or locality will decide for itself which policies will work best. While San Diego maintains the model of the friendly officer, other police forces located elsewhere may find operating like a paramilitary force more desirable. Denying localities the ability to choose the kind of police department they want decreases democracy, as we traditionally have understood it.

Even without considering these fundamental principles of civics, national standards carry with them a variety of hazards. Nowhere in the United States dos any police force operate at a level of perfection; all have room for improvement until no crime occurs and no additional taxes are needed. At present, the science of policing remains uncompleted. We do not know which rules will work best, and we rarely can estimate the value of reforms.

A good example of the inability to predict the success of reforms comes from the new limitations on deadly force. The police in San Diego have tried using nunchakus, a martial arts weapon, and pain compliance holds instead of guns, but the public has not liked the reform. In other communities, when police began using taser guns, deaths resulted from their use on people with health problems. After these deaths, some community leaders called for a suspension on the use of tasers. Similar criticism has been leveled against the use of Mace.

Establishing national rules very well could prevent any improvement in our police forces because standardization very quickly becomes the enemy of progress. The difficulty of predicting the success of reforms makes experimentation necessary. Yet, standardization very quickly becomes the enemy of progress. Moreover, even if new ideas arose without experimentation, adopting national standards might make reform too expensive to implement. Once standards become national, any alternations will affect the entire police department in the country.

Conclusion

A mid the rush to solve the problems in law enforcement by decreasing the flexibility and discretion of the policy we must appreciate the success that the police have had to date. As the Declaration of Independence states, "Mankind are more disposed to suffer while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed." Only with this thought in mind can we contemplate reform.