CHAPTER 6

Discretion and Dilemmas

Lecture slides prepared by Lisa J. Taylor

Significant Areas of Liability for Law Enforcement

• Discrimination

• Investigative practices

• Use of force

Moral Dilemmas of

Law Enforcement Officers

Frequent and unavoidable

Not academic

Always unpopular with some groups

Usually resolved quickly

Dealt with alone

Involves complex criteria

Klockars’ Types of Control

• Authority and power: police officers generally tells us what to do and we respond.

• Persuasion: authority that officers use in order to coerce in a nonphysical manner.

• Physical force: officers use whatever physical methods to control the situation.

Discrimination

Occurs when a discretionary decision-maker treats a group or individual differently from others for no justifiable reason.

•Sexual orientation•Race•National origin•Poor•Other?

Konerak Sinthasomphon

e

Victim of Jeffrey

Dahmer (1994)

• Laotian boy found wandering the streets, incoherent, naked, and bleeding from the rectum.

• Had escaped from Jeffrey Dahmer’s apartment after being drugged, tortured, and sexually abused.

• Two African-American women called the police, and tried to tell police that he was injured and that Dahmer was the one who hurt him. Despite their attempts, police helped Dahmer take him back to Dahmer’s apartment.

• Had police examined him, they would have seen acid-filled holes drilled in his head.

• Police dismissed the case as a “homosexual thing,” and left.

• Sinthasomphone was strangled shortly after the police left.

Forms of Discrimination

Enforcing the law differentially

Withholding the protection of the law

Greater disrespectGreater use of force

Racial profiling Greater use of pretext stops

Racial Profiling

Occurs when an officer uses a “profile” to stop a driver usually to obtain a consent to search for avehicle. Minorities are highly targeted based onthe assumption that they are more likely to commitcriminal acts.

Law and Racial Profiling

U.S. v. Martinez Fuerte425 U.S. 931 (1976)

•Legitimized the use of race as a criterion in profiles.

Wren v. US 517 U.S. 806 (1996)

•Pretext stops upheld.

•The law allows race to be considered as only one element in deciding to stop an individual.

Racial Profiling Progress by N.J. State Police(2011)

•For 10 years, the federal government has scrutinized the NJ State Police by gathering data on the number of drivers that were stopped, what percentage were minorities and how police handled the stops — all part of a plan to eliminate racial profiling — an identified problem with the department.

•The new report, which covers the second half of 2009, shows the percentage of African-Americans pulled over decreased slightly, from 17.9 to 17 percent, but rose slightly for Hispanics (10.9 to 11.4 percent) and Asians (6 to 6.3 percent). Arrests decreased for African-Americans, 34 to 32 percent.

•By comparison, in the first set of data gathered by federal authorities, African Americans accounted for 40 percent of all arrests from January to April 2000.

Arizona Immigratio

n Bill(2010)

• The Support Our Law Enforcement and Safe Neighborhoods Act (AKA -SB 1070) is a legislative Act in Arizona that at the time of passage was the broadest and strictest anti-illegal immigration measure in recent U.S. history.

• Bill was and continues to be very controversial.

• In addition to what federal law already stipulates, the Arizona Act makes it a state misdemeanor crime for an alien to be in Arizona without carrying the required documents, requires state law enforcement officers attempt to determine an individual's immigration status during a "lawful stop, detention or arrest", or during a "lawful contact“ when there is reasonable suspicion the individual is an illegal immigrant.

• Critics say this bill encourages racial profiling.

• The U.S. Supreme Court struck down key parts of the bill but let stand a controversial provision allowing police to check a person's immigration status while enforcing other laws.

Reactive Investigation

• Attempts to reconstruct a crime after it occurs.

• Consists of gathering evidence to identify and prosecute the offender.

• Investigator(s) may develop early prejudice about likely perpetrator, which might cause them to:

o be tempted to engage in noble-cause corruption to obtain a conviction;

o ignore or conceal evidence that contradicts their beliefs;

o overstate existing evidence; and/oro manufacture or alter evidence.

Proactive Investigation

• Attempts to document crime as it occurs

• Requires a more active police role

• Often involves deception by police

• Requires “targeting” based on reasonable suspicion

• Changes police role from discovering who has committed a crime to discovering who might commit a crime.

Typology of Lies

• Klockars:- Placebos, such as lying to a person about how a loved

one was killed

- Blue lies, used to control a person and make the police officer’s job easier

• Barker and Carter: - Accepted lies, such as those used during undercover

investigations or sting operations

- Tolerated lies, “necessary evils” such as lying during interrogations

- Deviant lies, such as false testimony in court to make a case, or covering up police wrongdoing

Broward County, FL

“Brady List”

• List of officers whose testimony is considered suspect by state prosecutors because their credibility has been questioned.

• The list contains137 officers who have been arrested or convicted of crimes, or they are under investigation for falsification, perjury, or theft.

• The title, “Brady”, refers to Brady v. Maryland, a case that resulted in the requirement of prosecutors to disclose potentially exculpatory information to the defense.

Informants

Individuals who are not police officers but assist police by providing information about criminal activity.

They are:• Motivated by monetary profit, revenge,

dementia, kicks, a need for attention, repentance (guilt), and coercion.

• Able to operate under fewer restrictions than police.

Ethical Issues• Becoming too intimate with informants

• Overestimating the veracity of information provided

• Potential for being duped by informant

• Using informants to entrap people (“creating” crimes)

• Engaging in unethical or illegal behaviors on behalf of the informant

• Using coercion and intimidation to force informant’s cooperation

• Protecting informants who continue to commit crime

Undercover Operations

• Undercover officers deceive suspects and others• Difficult for officer and his or her family

Continuum of privacy concerns

Short Term

Non-intimate relations

(Buy/bust)

Long Term

Intimate relations

(“Donnie Brasco”)

Donnie Brasco –

Undercover FBI Agent – Example

of Undercover Operation

•Real name – Joseph Pistone

•Infiltrated the Mafia

•Posed as small-time jewel thief.

•Lived as a “wannabe wiseguy.”

•Just as he was about to be “made,” he was pulled out.

•Led to 200 indictments, 100 convictions, and a $500K contract on his head.

•Still lives in hiding to protect identity.

EntrapmentWhen police encourage or entice a person to commit an illegal act.

Approaches:

• Subjective—Focuses on the defendant and his/her predisposition to crime.

• Objective—Focuses on the government and whether it provided “essential element” to the crime.

Entrapment

Criticisms (Stitt & James):

• Allows police to tempt former offenders who might otherwise not have been tempted

• May rely on hearsay and rumor

• May stigmatize the individual charged

• Allows police to choose their own targets

• Degrades the criminal justice system through the use of deceit

Undercover OperationsSuggested Limitations:

• Require a probable cause–based warrant for any interaction longer than 24 hours.

• Ban officers’ engagement in intimate relationships.

• Evidence obtained by violating the first two limitations should be excluded at trial.

Objections to Limits:•There is no need for an undercover operation if probable cause exists.

•It is often impossible to get a warrant.

•Most undercover operations exceed 24 hours.

InterrogationCannot involve physical force (the “third degree”)

Techniques of deception (Skolnick & Leo):

• Calling an interrogation an “interview”

• Negating the effectiveness of the Miranda warnings by method of presentation

• Misrepresenting the seriousness of the offense

• Manipulative appeals to suspect’s conscience

• Making leniency promises beyond the interrogator’s power to offer

• Interrogator misrepresenting his/her identity

• Using fabricated evidence to make suspect think case against him/her is strong

Excessive Force Lawful force is force that is reasonably necessary for lawful purpose.

•One of the most serious and divisive human rights violations in the U.S.

•Continuum of force (escalation because of resistance).

•Use of force depends on discretion of the individual officer.

•Individuals who question or refuse to recognize police authority become vulnerable to the use of force.

Culture of Force The Los Angeles Police Department

and the Rodney King Incident

• L.A.P.D. policy was to use escalating force proportional to a suspect's "offensive" behavior.

• This policy justified all but the most blatant abuse of police power.

• L.A.P.D. culture tolerated, even encouraged, a high level of violence.

• Leadership did not actively discourage excessive force.

• L.A.P.D. management was responsible, to some extent, for the brutality of the Rodney King incident.

The Research on Excessive Force

• The true number of excessive force incidents is difficult to detect.

• Few encounters end in the use of any force, much less excessive force.

• A small percentage of officers are responsible for most excessive force incidents.

• Race and socioeconomic status are associated with excessive force.

• But other factors (such as demeanor) are more influential.

Who Uses Excessive Force?

Certain characteristics associated with officers who use excessive force:

•Lack of empathy •Antisocial and paranoid tendencies•Proclivity toward abusive behavior•Inability to learn from experience•Tendency to not take responsibility for own actions•Cynicism•Strong identification with the police subculture

• Suspect being male

• Suspect's race

• Suspect's demeanor

• Suspect agitation/emotionality

• Suspect intoxication

• Suspect’s use of force

• Suspect having a weapon

• Socioeconomic status of suspect

• Gang involvement

• Officer being male

• Officer’s race

• Age of officer (younger)

• Officer having prior injuries

• Encounter involving a car chase

• Number of citizens present

• Number of police officers present

• Knowledge suspect committed prior (especially violent) crimes

Factors in the Use of Excessive Force

Determining Excessive Force

• Use of official documents in incident reports.

• Asking police officers about their actions and those of their peers.

• Civil rights complaints or public opinion surveys.

• Observers in police cars who record interactions between police and citizens.