Police Discretion Legality and Morality

• NCJ Number: 92408
• Author(s): J F Doyle
• Date Published: 1982
• Length: 32 pages
• Sale Source: National Institute of Justice/
• Language: English
• Country: United States of America
• Note: Paper Presented at the Conference on Police Ethics, John Jay College of Criminal Justice, 22-25 April, 1982, New York

Annotation

This paper examines whether the discretion exercised by police can be reconciled with the requirements of legality (the generally accepted standard of the authority and sometimes the validity of legal regulation of conduct) and morality (critical public morality).

Abstract

Authorization alone cannot be relied upon to determine whether police discretion can be legitimated. Authorization provides only a presumption of legitimation, and it may be a very weak and easily defeated presumption. Also, other factors besides authorization are relevant to legitimation of police discretion. Among these other factors are competence, compliance with appropriate standards, and being effectively subject to independent standards, and being effectively subject to independent standards for making decisions. There are strategies that can bring about a reconciliation of police discretion with the requirements of legality. If the police can justifiably be compared to other agents of the law (as argued by Dworkin), then they have a responsibility to be conscious of the grounds of their decisions and to fit these grounds into a coherent view of police activity and goals. Police must appreciate the limits of legal rulemaking and rule-following, because these limits help explain why the exercise of discretion is a necessary police activity. Police also must understand the various roles that discretion may play in police decisionmaking. Finally, police must make and explain discretionary decisions on the basis of normative considerations that can be consistently articulated by others. In considering whether police discretion can be morally legitimated, the moral standards that should be applied are (1) those that police organizations and associations have themselves officially endorsed, (2) those that apply to professional activity, and (3) those derived from a critical public morality applicable to all official conduct. Police discretion can be morally legitimated under all of these categories of standards, provided discretion grows out of and reflects the basic thrusts of the moral standards. Thirty-four notes are listed.