Better Living through Police Discretion

Abstract

The author wishes to give special thanks to participants in a seminar at the Centre for Criminological and Socio-Legal Studies, University of Sheffield, for their critical feedback on a draft of this paper, and to Vera Marsh and Andrew Vorder Bruegge for typing.

A note on the status of discretion in police research

“…Despite this congruence between Pepinsky's (1984) own appraisal of the situation and the subjects' reported perceptions, the author concluded the latter was exemplary of, "false presumptions of discretion by police" (p. 251). With respect to the officers' perception that, in the absence of formal guidance, they possessed substantial discretionary autonomy, Pepinsky concluded that "the officers were wrong" (p. 251).…”

“…More so, it necessarily raises the question of how to empirically disentangle the various determinants of police behavior. "Effective limits," some have argued, must necessarily include any structuring force operating upon the officer (Campbell, 1999;Pepinsky, 1984). Logically, even if legal limits could be usefully bracketed off from other determinants, to do so effectively reduces discretion to the absence of formal control.…”

“…If it is also true that it is naïve from a scientific point of view to conceive the actor as the "unmoved mover" in the production of behaviors not directly guided by law, then what becomes of discretion? Most radically, albeit cogently, Pepinsky (1984) has argued that the only sensible conclusion is that, "discretion amounts purely and simply to variance in the decisions an observer is unable to explain" (p. 251). That is, discretion can only be said to exist to the extent that it expresses itself as unexplained variance in an analysis (e.g., the error term of a regression).…”

“…Discretion is once more located as external to the analysis-conceived as some unobserved and unobservable process behind the empirical reality, which in turn is taken as evidence of that very thing. While this solution seems unsatisfactory, Pepinsky's (1984) effort to demystify discretion does indirectly suggest one possible manner in which discretion could be measured without a reduction to rules or behaviors.…”

“…In attempting to add force to his critique of such a conception as unworkable and naïve, Pepinsky (1984) conjured an example from his prior research involving the reporting habits of police officers. He recalled from this study that, "apart from general exhortations to report fully and fairly, officers are given little formal guidance on [reporting]."…”