Police Discretion Definition

Written by J. Hirby and Fact Checked by The Law Dictionary Staff  

Police discretion is a vague term that has an appropriately vague definition. It is defined as the decision-making power afforded to police officers that allows them to decide if they want to pursue police procedure or simply let someone off with a warning. How it looks in practice is different from situation to situation.

The classic example of police discretion happens when you get pulled over for speeding. Sometimes you might get a ticket, while other times you might just be let off with a warning. Oftentimes appealing to police discretion is the best way to avoid hefty fines or tickets. This doesn't necessarily have to be a consciously manipulative process. You can simply tell the truth, and if the truth is a story that shows you to be a generally serious, upstanding citizen with good intentions, police will generally be convinced.

Common Incidents Where Police Discretion Is Used

The most common issues solved by police discretion include:

  • Domestic violence - Especially where verbal abuse is alleged and if there are no obvious bruises or signs of physical violence, it may be difficult to determine who started a fight and who escalated it. The police officer will have to use his or her personal judgment.
  • Traffic violations - Because everybody speeds by accident occasionally, a police officer may decide that it is more worth the state's time simply to give a warning rather than to file the paperwork for someone likely never to commit a traffic violation again.
  • Potential hate crimes - A police officer must use his or her discretion to determine if a crime has hate crime elements or if it was just a standard crime. Hate crimes carry more severe sentences, but it can be difficult to determine through evidence. An officer must judge the perpetrator's character.
  • Crimes involving mentally ill individuals - If someone is mentally ill, they may not be charged as heavily because it could be determined that they weren't in full possession of their faculties.

Police Discretion and Racial Profiling

Police discretion is also one of the reasons behind what some people see as racial profiling, as police officers are trained to use their discretion in line with statistics or perceived statistics. It is often perceived that people of certain races are more likely to be guilty of crimes, and this may factor into police choices. While this is technically illegal, because discretion is not an exact science with specified, codified rules, it is very difficult to prove this in court.

Police Discretion is Not Absolute

Of course, police officers still have to follow codified rules and regulations for more serious incidents. For instance, an officer can't ignore a homicide and must follow all rules pertaining to probable cause to determine warrants or make arrests. Use of firearms or forceful detainment must also follow proper procedure and protocol, which varies from state to state.

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