The Pragmatist views discretion as essential. Criminal Justice professionals must be allowed to make the proper decisions in individual cases to ensure that justice is fair. Certainly there are reported cases when the discretion seems to have prejudicial either for against an offender, specific cases not withstanding, it appears that overall discretion is essential for every individualized aspect of the case to be judged. In cases of police discretion it would be pointless to disallow police from having judgment to excuse or justify a wrongdoing, only to have that decision become a responsibility of the courts. For instance, a man is stopped for speeding; the officer learns that he was taking his pregnant wife to the hospital for emergency treatment. Without discretion, the police must cite the man and let the judge decide. A police officer is capable of making this decision. In many cases police can make valuable decisions that change the lives of the people involved. Of course, these legal decisions are also moral decisions. What this means is that police need to have a better understanding of the moral decision-making, and be held responsible for their ability to articulate how they chose to use discretion within the law.
Policing and Encouraging Discretion
As indicated
in the previous section it is not possible to eliminate discretion form law
enforcement authorities. Thirty
years ago it was common to hear that police discretion was necessary because
‘every day in every police department a policy fails.’ The policy may fail by failing to adequately address a
particular situation. The policy
fails because in a particular case it would be inappropriate or even morally
wrong. In today’s larger police
departments it may be common to hear ‘every day every policy fails.’ When policy fails it is individual police discretion that
must administer justice.
Police discretion is necessary to maintain a standard of justice in
society. Since police judgment is
determining the nature of justice in a society the police must understand what
the meaning of legality and morality are. Furthermore,
the individual
Police officer must understand the relationship
between morality and the law. Many
Criminal Justice professionals try not to reflect on morality and focus on
legality. That cannot work because
the laws are merely rules based upon moral principles. Failure to understand the moral principles or to understand
the importance of principles in relation to rules is failure to understand the
law. Law enforcement agents must
learn the significance of the law if they are to adequately enforce the law.
Police officers are philosophers of law.
What remains is the question, how good are they at philosophy of law?