When The Use of Professional Discretion Cross Ethical Boundaries in Law Enforcement

When does the use of professional discretion cross ethical boundaries? 

Discretion is used in law enforcement context to refer to the power to decide on the necessary action to be taken in order to manage workload and intervene in incidents that occur effectively. Although different law enforcement personnel are given different levels of discretion, immense discretionary power is given to all law enforcers regardless of theirrank or level of their seniority. This gives them the freedom they require to make operational decisions such as whom to talk to, question, investigate, or arrest effectively. It is thus imperative that law enforcement personnel uphold high moral standards so as to ensure that their decisions are justified and free from any prejudice.

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In most jurisdictions the pre trial release is not standardized and magistrates have use their own discretion in making the decision. They are also not required to justify their decision to the court and such decisions are rarely appraised. Magistrates set bail for suspects who are perceived as dangerous to the society. Nevertheless, such suspects are less likely to stay locked up while awaiting trial(Nickels, 2007). This way of exercising discretion is used as a way of avoiding policies that can bring significant changes to both to individual independence and to lower the rate of crime. This raises questions on the whether bail should be abolished and suspects who are considered dangerous held till trial. Most people believe that by so doing, the law enforcers will be violating the principal of innocent until proven guilty, which will be worse than the risk posed by the released suspects. However, there are many poor people locked up in the cells, not because they are a threat to the society but since they cannot afford to settle their bail bond.  Another argument is that the magistrate might not know enough for him/her to accurately assess the suspect’s dangerousness.

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Law enforcers are given the power of discretion to facilitate decision-making. For them to carry out their duties effectively, they would be required to exercise a given level of discretion. Law enforcement officers usually work independently and thus they have to make decisions on how to react to situations that arise on day-to-day basis on their own. The high level of discretion to ensure that they can make those decisions effectively.  For example, when a police officer is patrolling an area and comes across a drug peddler, he/ she should be able to make a quick decision on the action to take, such as whether to question, arrest or not to take any legal action against the suspect However, there is a very thin line that once crossed the officer would be said to be violating the law.

Controlling how a law enforcer exercises their power of discretion can be a challenging undertaking. This is mainly because of how that power is usually applied to different situations. However policing law enforcers is an essential part of ensuring that discretion balance is maintained and the power is used correctly. Nevertheless law enforcers can still abuse their power of discretion and still get away with it(Woody, 2006).

Law enforcers do not always hold high moral characters, which lead to unethical behavior. Excessive discretion is one of the ways that professional discretion ethical boundaries are crossed.  Excessive discretion refers to a situation where law enforcement officers are given too much discretionary power(Davis, Busck & Cassese, 1976). Prosecutors are given too much discretionary power over the charging, prosecuting and sentencing processes. This has made decisions such as choosing between plea and being charged a challenging affair as they now have to chose between foregoing a fair trial by choosing to plea and risking a high sentence after the trial if they chose to be charged. Excessive discretionary power has also seen judges and prosecutors enter into agreements that include considerably light sentences for serious crimes. Prosecutors want to encourage people to take deals in order to reduce the number of cases going to trial and thus they use incentives such lighter sentences so as encourage suspects to deal. Additionally, law enforcers may get into an agreement that will get them given information in exchange for a lighter sentence.

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Discretion in the public sector can be exercised by a number of law enforcers including, legislative, judicial, or executive officers. The main focus here will be on judicial discretion, and how it can be misused. The key check will be the discretion of police officers as that of the judges and the jury. The police officers have the discretion on whether to take a legal action and on whom while the judge and the jury have the discretion on whether the accused is guilty and the sentence to be imposed.

Use of Questionable Tactics

Law enforcers have the ability and the resources to use unethical tactics in order to arrest offenders. Even though such a method may serve the purpose, any law enforcer who applies such tactics would be going against the ethics of the profession. For instance, a police officer who decides to torture a suspect in order to get information that he/she believes could lead to more arrests(Davis, Busck & Cassese, 1976). Even if the suspect gives helpful information, the act of torturing a suspect is unethical and thus the police officer could be said to have abused his/her discretionary power.
Such abuse of discretionary power is often covered up and the police officer goes unpunished for their unethical actions. Although the federal government has been trying to regulate law enforcer’s discretion, but the constitution limits the extents to which they can go. Furthermore, majority of law enforcers’ misconducts do not draw enough attention for them to warrant federal intervention.

Exercising Discrimination

Another way that a law enforcer may cross the ethical boundaries is by using discretion to discriminate against some members of the society. Enforcement discretion gives the law enforcer power to judge a situation and decide whether to punish the offender and the type and magnitude of punishment(Gilbert, 1997). This creates room for bias. This is unethical since law enforcement personnel are expected to enforce the law while observing equality. Everyone in the society should enjoy equal rights and they should be treated fairly. Conversely, discretion creates room for enforcement officers to treat offenders differently depending on their race, gender, age, ethnicity, and class among others (Nickels, 2007).

Law enforcers discriminate against minority groups. Racial profiling is one of the numerous examples how law enforcers use discretion discriminatively. Most police believe that certain groups of people have a higher likelihood of committing certain crimes, which often overshadows their judgment. For instance, a study of traffic stops by the Maryland State Police indicated that police officers misused their discretion in making the decision on whom to stop. This resulted in them discriminating against African Americans(Woody, 2006).

Denial of due process

Discretion gives enforcement officers the power to decide whether to take a legal action against an offender or not. Corruption in law enforcement often breeds from misuse of power and authority, as well as low integrity. It can thus be argued that giving law enforcement officers discretion powers can lead to corruption since by exercising discretion a law enforcement, an officer can freely deny certain individuals (the offended) their process rights. In essence, discretion power permits law enforcement officers to harass, blackmail and make arrangements with offenders in the place of being of arrested and prosecuted (Woody, 2006). This denies certain members of the community their rights of having those who committed offenses against them prosecuted.

Endorsing Illegal Activities

Law enforcement officers are expected to work closely with the communities they serve. This means that they are likely to have a relationship with members of the community. However, they should not use their discretion to allow members of the community to conduct illegal activities, even if they consider them unlawful. For example, a law enforcement officer can use his discretion to allow teenagers to remain in a park after hours(Gilbert, 1997). However, if the officer is aware that those teenagers practice underage drinking in the park during after hours, he/she would be acting unethically by allowing the teenagers to remain in the pack after hours with no supervision. The enforcement officer should do all that he/she can to ensure that no illegal activities take place within the communities they serve.

Use of an inappropriate Precedent

In some cases, the judge might decide to use a trial that was conducted in the past that is similar to the current case. The judge uses the ruling of the precedent case to rule the current case. Choosing a precedent requires the judge to use discretion to decide on the most appropriate precedent. A precedent is selected based on the case facts, as well as by considering all other factors that might have contributed to the ruling such as timing, religious and cultural beliefs of the accused and the defendant. Although the facts of the case are documented, the judge must assess the cases to ensure that they are similar so as to ensure fair ruling (Davis, Busck & Cassese, 1976). The judge might misuse his/her discretion in such a situation by choosing precedent whose facts are significantly different from the current case in order to avoid the long and tiresome ruling process. This is unethical as it may result in an unfair ruling (Gilbert, 1997). Additionally, precedents are not law and the judge should evaluate the selected precedent’s ruling carefully to ensure that it was correct and that it is still applicable. Failure to do so can be seen as abuse of precedent.


This paper has looked into the ways that an enforcement officer can misuse the discretion power entrusted to him/her unethically. Definitions and a short introduction of the use of discretion in law enforcement have also been given. Furthermore, this paper has looked into the few ways that different law enforcers apply discretion. It has been noted that discretion is a vital part of law enforcement but one that is very susceptible to abuse and misuse. Worse still, abuse and misuse of description often go unnoticed and unregulated.  Consequently, ways of assessing and monitoring the application of discretion among law enforcers, such as policing strategies, should be introduced and implemented.

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Discretion plays in essential role in any healthy society because it facilitates moral change. Law enforcement officers rely on their own judgment to make decisions that not only affect them but also the life and freedom of the citizens’ in the communities they serve. In line with this, discretion cannot be eliminated, even with the risks it poses. Nevertheless, strategies to counter the possible unethical applications of discretion can be introduced and implemented to ensure that it is predominately used for good.

Use of discretion in law enforcement ensures that law enforcers keep up to date with the ever-changing societal anticipations, concerning acceptable and abnormal behavior by the currently reigning standards. Law enforcement officer’s discretion also helps in maintaining peace in the community they serve more easily since the community’s needs are considered during the decision-making processes. Discretion plays an I believe that even with all the shortcomings, discretion is necessary for effective law enforcement but it should be controlled and regulated.  Since excess discretion is among the leading factors that contribute to abuse and misuse of discrete power, the level of power given to law enforcement officers should be reduced (Woody, 2006). Reducing the officer’s discretion power will make monitoring application easier and lower the chances of abuse. When there is effective use of discretion, the legal system will be fair and more efficient. This will make a positive impact on the entire society at large.

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