Police discretion called ‘cornerstone of justice system’

TUPELO – When does being pulled over for going 100 mph in a 45 mph speed zone not result in a speeding ticket?
When the police officer who stops you says it doesn’t.
That latitude in deciding whether someone should be ticketed is considered officer discretion and professional courtesy.
The two concepts were debated heavily during the Cliff Hardy trial in July. Hardy won a $300,000 verdict against the city of Tupelo after claiming that the police department forced him out of his job after he spoke on behalf of former Deputy Police Chief Robert Hall.
Hall was indicted for releasing the suspect of a May 28, 2006, hit-and-run accident that caused an injury.
Some called his action a criminal offense, but both he and by Hardy called it a matter of officer discretion.
A state investigator found Hall’s actions questionable, but not illegal.

Latitude given
Officer discretion gives law enforcement the latitude to operate within the borders of the law, according to Ken Winter, executive director of the Mississippi Association of Police Chiefs.
He called officer discretion the most important tool in law enforcement.
“Discretion is the cornerstone of the justice system,” said Winter. “Every law can’t be enforced 100 percent of the time, so discretion has to be used. From police, to prosecutors, to judges, they all have to use discretion.”
If officers write tickets every time they stop a car, Winter said, they’re not going to work for long in law enforcement. And if they let every one off with a warning, they’re not going to work for long, either.
Winter said different situations warrant different actions. For example, if a car is stopped for speeding and police find it’s a woman in labor on her way to the hospital, he said, she should be let go without penalty.

Discretion common
Dr. David McElreath, the Legal Studies chair at the University of Mississippi, says discretion is not a concept limited to law enforcement.
“A doctor has the discretion to decide what medication to prescribe a patient,” said McElreath. “Even the door greeter at Walmart can choose to smile at you or not. This difference between law enforcement and other professions is that being a policeman is one of the few jobs where we give someone a gun and give them the option to use deadly force. That’s why discretion must be used properly, because often people’s lives depend on it.”
How to use discretion must be understood by the officers, McElreath said, and it’s up to the head of the department to make sure the lines are clearly drawn.
Tupelo Police Chief Harold Chaffin said he talks to all of his officers about the use of discretion.
“We tell them to use their common sense,” said Chaffin. “Everyone who speeds does not deserve a ticket and everyone who speeds doesn’t deserve to be let go either. We want our officers to have the flexibility to make decisions and use their judgment to handle situations. I can’t make a rule to say everyone stopped gets a ticket. That wouldn’t work.”
Chaffin said the proper use of discretion is learned over time. A rookie police officer, he pointed out, is not going to make the same decision as a veteran.
One officer, who’s been on the force a couple of years, said the department does a good job of making sure officers know how to use their instincts.
“We learn a lot about how to deal with different crimes in the academy,” the officer, who did not want to be identified, said. “When we go out to do our jobs we are aware that we are not going to arrest everyone, but we are also aware that those decisions have to be made fairly and on a case-by-case basis.”
When it goes wrong
Discretion sometimes straddles the line between fair and unfair treatment.
When it’s used because of prejudice or favoritism, McElreath said, problems start.
“Discretion should never be used in a way that an officer lets someone go because they are white, old, young or a woman,” McElreath said. “People should not be given breaks because of who they are or who they know. That’s not fair discretion, but an abuse of it.”
McElreath said discretion should allow for a good officer to use the power entrusted in him with a social benevolence.
During the Hardy trial, it was revealed that District Attorney John Young had a speeding ticket dismissed, and that the son of a former North Mississippi Medical Center executive was taken to a mental health care center rather than to jail after assaulting an officer.
Hall’s attorney’s argued that his action in releasing the DUI suspect was no different from Chaffin using discretion to dismiss Young’s ticket or the officer’s decision to take the executive’s son to a hospital rather than jail.
Chaffin admitted there was no policy regarding the discretionary dismissal of tickets, but said the circumstances were different because Young was on official business when he was ticketed.
Discretion doesn’t apply in every instance.
Jamison Shell, the man Hall released from jail after he hit a boy riding a bike, was charged with a felony and taken to jail, so the former deputy chief had little discretionary power, and that’s where the problems for Hall arose.
Winter said in some cases the law takes away discretion.
“In domestic violence situations when an officer finds there has been a crime, he has no choice but to follow the letter of the law and make an arrest,” said Winter. “There is no discretion at all in those cases. There is also very little discretion in felony cases because of the serious penalties. You can decide which felony to charge a person with, but that’s basically where discretion ends.”
In domestic violence cases, even if the victim does not press charges, the suspect will be arrested and charged if the evidence points toward the crime.
But no matter what the circumstances are, McElreath said, someone will disagree with an officer’s use of discretion.
“No one has a problem with discretion when it favors them, but only when they don’t get the outcome they desire do people complain,” he said. “It’s not going to go your way every time. Sometimes you’re going to get the ticket. But police write way less tickets than they can. Whether you’re going three miles over the speed limit of 30, you’re still breaking the law and it’s up to the officer to decide how to deal with that.”

Contact Danza Johnson at (662) 678-1583 or danza.johnson@djournal.com.

Danza Johnson/NEMS Daily Journal

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