Monday, April 16, 2012

To Arrest or Not to Arrest? That is the Question

The topic of police discretion is nothing new, what is new however, is after an arrest has been made, the discretion used by the officer to determine criminal charges.  In Scott W. Phillips and Sean P. Varano’s study, they look at the determinate factors officers use in order to decide what charges to make. 
As stated by the authors, the study was conducted to look at an area of policing that has gone unexamined for the most part; the charging decisions (or lack thereof) of police officers.  This lack of research is what the authors believe to be the problem and look for a way to understand why officers sometimes fully exercise the law, and other times decide to do nothing at all.  Phillips and Varano (2008) state, “Officers presumably make these decisions based on legal factors such as the available evidence, victim and witness statements, and forensic evidence” (p. 307).  Is this always the case though or are there other influences and extralegal factors that play into the decision making process?
Previous studies have been conducted to help determine what causes officers to arrest one individual for an offense and let the next person go.  Those studies found that the seriousness of the crime, the demeanor of the suspect and victim, the victims preference toward the offender being arrested, and the social status of the neighborhood where the incident took place all played roles in the decision factor.  The authors go on to talk about how the offender’s demeanor is often the main deciding factor in making an arrest or not.  If the offender shows a lack of respect or uses vulgar language toward the officer, that officer was much more likely to make an arrest (Phillips & Varano, 2008, p. 308).
One thing the authors point out was the officer’s age, gender, race, and experience can play a role in arrest decisions.  They state that a female officer often times demonstrates a different approach to handling a domestic violence call than a male officer which resulted in a higher level of involvement.  As already stated, the age and years of experience an officer has can play a role as well.  It was found that the level of force used decreased as the years of service increased (Phillips & Varano, 2008, p. 308).
The methodology used in Phillips and Varano’s study was, “To examine the impact of organizational, situational, and individual variables on the criminal charge decision.  Data was collected from individual police officers in four different police agencies and a case research design was used to measure the impact of situational variables on police officer criminal charge decision-making” (Phillips & Varano, 2008, p. 309).  All four of the police stations were in the same region in New York State with all of the cities having a population around 50,000 people.
In Phillips and Varano’s theoretical analysis of criminal charging decisions, domestic violence cases were used to examine police charging decisions.  Results showed that officers typically support a more serious criminal charge with a second, and sometimes third, less serious criminal charge.  An example of this would be a criminal contempt charge for an order of protection to go along with an assault charge.  The authors were surprised to find when New York State legislation cases that included an order of protection and justified a criminal contempt first degree charge, that one in five of these cases did not receive this charge along with the more serious offense.  Something the authors noticed was that there seemed to be a direct link between the charging decision and the cooperativeness of the offender.  This suggests that the officers take their personal pride into the charging decision making process as a way to “stick it to” the offender.  Again, they found that older and more experienced officers make significantly less criminal charges than younger, less experienced officers.  This was also true with township police officers and sheriff’s deputies.
Some problems with this study is the fact that the data came from only one region in New York State.  Situational conditions were not taken into account either such as the presence of children at the scene or whether the offender was intoxicated or on drugs.  The two biggest problems I see with this study is first, they used self-reported data.  It would be best to have a researcher out with each patrolling unit to collect the data in that manner.  Secondly, other incidents should be studied as well.  I believe a very interesting topic would be the discretionary decision making of issuing traffic tickets.

Here's an interesting link to a study done on police discretion pertaining to traffic stops. 

I’m curious as to what you guys think.  Why do you think police officers sometimes ticket or charge some and let others go?


Scott W. Phillips & Sean P. Varano. (2008). Police criminal charging
decisions: An examination of post-arrest decision-making. Journal Of Criminal Justice, 36307-315. doi:10.1016/j.jcrimjus.2008.06.002

Wilson, J.Q. (1978). Varieties of police behavior: The management of law and order in
eight communities. Cambridge, MA: Harvard University Press.


  1. I think personnly that in traffics stops where a officer has discretion based on department policy such as speeding, that officers base their decision on the individuals attitude towards the officer. If you are respectfully and compliant and make it easier for the officer I think he would be more likely to let you off with a warning.

  2. This is what I was told by a former State's Attorney:

    1. You have to charge with the worst crime committed. 2. If the evidence of that behavior is substantial, only additional FELONIES should be considered after this point. 3. If you are in doubt of a charge, you probably shouldn't add it to the report because the defendant will walk. 4. When in doubt, charge the defendant with every known crime they have broken and let the State's Attorney's office sort it out.

    There is no written "rule" on what to charge and what not to charge. The best thing to do as a police officer is to write out your report to the best of your knowledge as clear and concisely as you can. The State's Attorney can use the report to make additional charges, if needed.

  3. I really feel that police discretion is one of the most important things in the system. Police officers are the gatekeepers for the criminal justice system. When a police officer exercises discretion, he is deciding whether or not to make you a part of the system. I think it is great that police officers have the choice whether or not to prosecute based on your attitude and the way you act towards them. Some may feel that it is not right because of the lack of consistency, but I have been pulled over twice and both times I acted with respect and courtesy towards the officer and he recognized it by not giving me a ticket.