Discretion within the Law - Discouraged

The Idealist views discretion as something to be avoided, while realizing that its complete avoidance may turn Criminal Justice professionals into legal robots.  Discouraging discretion should not be seen as limiting creativity in the use of tactics, or implementation of policy, etc.  The morality of the law has already been established in the Foundation of the Law.   Public Morality cannot altered by anyone especially those who are sworn to uphold the law which is based on Public Morality.  The police officer, the judge, or the corrections official using discretion may do so believing that a better moral outcome is possible.  These discretionary judgments lose sight of the overall importance of the law within society.  Allowing discretion within the Criminal Justice System causes a weakening of the morality within society.

Policing and Discouraging Discretion

            One reason that some Idealists are opposed to encouraging police discretion is that they see the purpose of the law is to enforce morality.  If morality is understood as a matter of feeling, that is that one knows right and wrong based upon the way they feel, then any change in the way they feel about right and wrong seems to weaken their moral position.  Therefore,  all change is bad and discretion is a means which police alter law enforcement and morality in society.  Altering morality is not the business of the police; in fact they should be enforcing morality.  Again, it must be stated that not all idealists believe that moral enforcement is the purpose of the law.  The point here is that there are those who believe that law and morality cannot be separated or that it should not be separated.  If a police officer is making a moral decision and fails to enforce the law, then the officer has weakened the morality of society.

            An example may be helpful.  Skolnick’s example of the enforcement parking violation demonstrates how pervasive discretion can be.  Yet, the moral significance of parking tickets may not clearly represent the importance of discretionary law enforcement.  A clearer example may be a police officer assigned to patrol.  A citizen asked that while the family was on vacation that the police check the house occasionally.  On the fourth evening of checking the house the policeman sees what appears to be a party going on at the house he was asked to watch.  He approaches the house and a teenage boy answers the door.  The officer can hear rather loud music coming from inside the house, and he can see perhaps ten or twelve other young men and women in the house.  The young man informs the patrolman that this is his uncle’s house and that this is a church related party.  The officer is invited in.  The officer sees nothing that would indicate that there is any violation of the law that would make his decision much easier.  There is no apparent underage drinking, the young man has identification and his last name is the same as his uncle’s.  The young man explains that this party had been planned for months and everybody knew the family was out of town on vacation.  Further, he explained, his uncle had given them permission to have these particular people in his house. 

            The officer feels stuck.  If the young man were telling the truth then the right thing to do would be to verify it and move on.  If the young man were lying, then the consequences would be more severe.  Attempts to contact the family on vacation failed and the officer had a decision to make.  He felt the young man was telling the truth, but was not comfortable with taking the responsibility for allowing the party to continue in this house. 

            This dilemma falls into the realm of discretion.  The officer has a legal responsibility to protect the property of the family on vacation.  The officer may also have a moral responsibility to follow the wishes of the family and the young man if he finds the young man believable.  The officer also has a moral responsibility to protect the home of family.  Whatever the officer decides there is going to be a moral implication.  For some officers the decision is simple, close the party.  If that is the decision, discretion cannot stop.  If there is insufficient reason to allow the party is there sufficient reason to make arrest for breaking and entering?  These are judgments that police officers cannot avoid in some situations.  Some would error on the side of caution and minimize their discretion.  Some would lessen their discretion to reduce personal responsibility.  In any case police are often put in positions where discretionary judgment can be reduced, but the hope of eliminating discretion appears to be beyond possibility.