Police departments have the responsibility of promoting and maintaining public safety. Criminal investigation, an element of law enforcement, is one way of protecting the public by putting away individuals who are a threat. Local and federal governments grant police officers authority to use lethal force but with obligations and limits. They ensure that law enforcement officers do not abuse it and, in this way, serve and protect the interests of their communities. Some provisions support discretion in the use of force by police, which helps them balance between liberty and civility. The police are expected to use this discretion to limit the use of force while at the same time conduct an effective criminal investigation.
Discretion in the Use of Force
Law enforcement officers are free to use force whenever necessary so that they can promote public safety. However, while there is a provision to use force, police are required to use discretion to reduce the chances of the abuse of this power. Discretion is the power to make choices, and it is a crucial component in law enforcement for maintaining law and order in societies (Gundhus, 2017). Police officers are said to have discretion if their limits on their power allow them to choose among several courses of action or even inaction. Law enforcement officers who are trying to deal with resistance could use power, authority, force, and persuasion, which are types of control and domination. Rajakuna et al. (2017) assert that discretion not only applies to individual police officers but also to administrators responsible for designing and implementing policies. Police administrators influence and govern the actions of individual officers when it comes to using discretion in policing. These administrators understand that even responsible and competent officers are capable of abusing their authority when it comes to the use of force. If this would be the case, the administrators have to rely on external parameters to govern policing activities effectively.
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Discretion in the Criminal Justice Process
The criminal justice process encompasses decision-making by various players who include police officers and the court system. Police officers are responsible for investigating crimes to link incidences with suspects and, in this way, enhance public safety. On the other hand, the courts are responsible for determining if the suspects are culpable or not based on the available evidence. In facilitating the process, the criminal justice players must practice discretion to avoid the use of excessive force that could infringe on suspects' constitutional rights (Greene, 2018). The criminal justice process, which starts with investigations and ends in punishment, requires concerted decision-making efforts. This kind of decision allows for a seamless flow while at the same time promoting justice, accountability, and fiduciary duty. If the criminal justice system is to engage in an effective decision-making process, there is a need to embrace discretion. According to Gundhus (2017), discretion means that stakeholders are expected to exercise their judgment while making choices on alternative actions. The police have to use discretion whenever they have to decide whether to investigate, arrest, use force, or question suspects. Similarly, prosecutors have to use discretion to determine whether to enter into a plea- bargain or charge suspects with crimes (Greene, 2018). In the same manner, judges use discretion to accept or reject plea-bargains and during bail hearings and sentencing. The use of discretion thus becomes a crucial aspect of the criminal justice process that guides decisions and, in turn, promotes the well-being of all the concerned stakeholders.
Constitutional Provisions Regulating Use of Force
Law enforcement officers are free to use various forms of force including lethal against individuals in the communities they serve. However, the use of such force against free citizens should be objectively reasonable, relying on the totality of circumstances at the time. The Fourth Amendment governs the use of force on free citizens by providing the ‘reasonable objectiveness test’ (Carbado, 2017). This provision establishes the need for focusing on crime’s severity the level of threat, and resistance to arrest. If the three provisions hold, then the law enforcement officer is authorized to use force to enhance his safety and those of others. If the police officer uses unreasonable force on suspects that do not meet the ‘reasonable objectiveness test’ he or she becomes liable for violating the suspect’s constitutional rights.
The Fouteenth Amendment is another constitutional provision that regulates the use of discretion and force by police while conducting criminal investigations. The ‘due process’ clause within the Amendment has a subjective test that helps to determine if the use of force is necessary or not. Ristroph (2017) notes that the test revolves around whether there was a need to use force, level of force used, range of injuries, and if the force is in good faith. The answer to these four questions determines if the force that was used was excessive or not. Police officers who use more force than necessary would be liable for prosecution for failure to use their discretion while handling suspects. The Eighth Amendment’s “cruel and unusual punishment” clause also calls for discretion in the use of force by prohibiting certain punishments such as disemboweling, burning, and public dissection of suspects (Ristroph, 2017). This provision promotes fairness by outlining the extent to which law enforcement officers could go in so far as exercising force.
Federal Standards in the Use of force
The federal government has put in place standards that regulate police use of deadly force in a bid to protect the citizens' constitutional rights. These standards operate in the presumption that when police officers decide to intervene in situations, they are more likely to be judged. While police officers have the authority to use reasonable and necessary force to subdue or arrest unruly people for protecting others, they must be regulated. 'Objective reasonableness' and shock-the-conscience standards that have been put into place by the federal government governs police approach to criminal situations. Objective reasonableness, which is the most restrictive standard, regulates the amount of force that could be used while seizing a free citizen (Gross, 2017). This standard is guided by various parameters, including the 'balancing test,' 'totality of the circumstances,' and 'objective v. subjective.' The 'balancing test parameter' ensures a balance between the government's interests and an individual's right to physical integrity and privacy. On the other hand, the 'totality of circumstances' parameter requires law enforcement officers to use force based on the information they have at the time (Gross, 2017). The 'objective v. subjective' parameter establishes that the use of force should be guided by what the officer knows about the suspect. While using objective reasonableness parameters, law enforcement officers are expected to demonstrate discretion by limiting their authority without any exception.
Shock-the-conscience standard regulating police officers’ use of force normally applies to non-seized free citizens. Additionally, the standard applies to people who have been convicted, incarcerated, and those awaiting trial. This standard is more lenient than the objectiveness reasonable one since police officers' use of force is limited. According to Butler (2016), shock-the-conscience’ standard is a constitutional framework that helps in determining whether detainees should be tortured or not. The standard, which is grounded on the Fourteenth Amendment, prohibits states from depriving persons of liberty, property, or life without following the due process of law. This standard aligns with the Eighth Amendment's proportionality clause, which calls for a punishment that is commensurate to the crime. Such a provision is critical in curtailing the use of excessive force in dealing with misdemeanors. Connors et al. (2017) note that the shock- the-conscience' standard test is an effective framework that can be used in analyzing claims related to excessive use of force by the police. The test helps in evaluating whether the government violates individuals' constitutional rights and, in this way, curtail the use of unwarranted force.
International Human Rights on Discretion and Force in Policing
International human rights law is the basic standard that regulates the use of excessive force by police and law enforcement agencies. The Universal Declaration of Human Rights affirms the right to equality, life, security, and freedom from discrimination, torture, and inhumane treatment. In a bid to advance these rights, various United Nations agencies have adopted international standards to regulate the use of force. The US Supreme Court has done its part by developing legal standards derived from the Constitution to support fairness. Courts and UN agencies derive the standards from various sources, which include the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (University of Chicago Law School, 2020). These sources are, in turn, used to develop a grading mechanism revolving around the principles of proportionality, necessity, accountability, and legality of force. Proportionality limits lethal force by establishing that it could be used to respond to threats to life or situations that could result in bodily harm. The necessity principle establishes that deadly force should be the last resort while dealing with particularized and imminent threats. On the other hand, the principle of accountability emphasizes the need for an effective review process while issuing reports on instances where lethal force has been employed. Lastly, the principle of legality requires that domestic laws should provide police with the authority to use lethal force while complying with international standards (University of Chicago Law School, 2020). The four principles are crucial as they provide guidelines in the use of excessive force and in this way protect individual constitutional rights while supporting criminal investigation procedures.
Analysis of the Use of Force by US Police Departments
The US continues to grapple with an increase in the use of excessive force by its law enforcement agencies. There has been a series of horrifying incidents where policies have been using excessive force, even on unarmed individuals who do not pose a risk. The deaths of Lacquan McDonald, George Floyd, Michael Brown, Tony McDade, and Eric Garner are an indication of the failure by the police to practice discretion in their use of force. While society has vested the police with immense power to use force to protect citizens, they do not always use it in restraint (Lawson, 2018). Instead, the police appear to be disproportionately targeting poor communities as well as communities of color. This kind of targeting means that the police infringe on the human rights of the US citizens, thus creating mistrust, which negatively impacts policing. Wood et al. (2020) carried out a study across 20 US cities to establish if police departments adhere to the four principles outlined in the UN policing framework. The authors demonstrate that none of the cities under review adhered to international laws and standards. All the cities failed to adhere to the standard of legality and accountability, pointing to excessive use of deadly force in the US. These findings indicate that policies on the use of deadly force are usually ignored, with most police departments using excessive force to deal with non-lethal threats. A failure to comply with international guidelines on the use of force has translated to the murder of unarmed citizens. Law enforcement officers are no longer discrete in their use of lethal force since they no longer adhere to constitutional provisions that regulate their conduct when handling situations.
Recommendations to Curtail the Use of Excessive Force
The choice to engage suspects using excessive force by law enforcement officers is a significant issue that requires immediate redress to earn back public trust. One of the strategies that could be adopted to curtail the use of force is the implementation of large-scale procedural justice training. Wood et al. (2020) note that this kind of training would emphasize the need for neutrality, respect, and transparency while exercising authority. A study conducted in the Chicago Police Department indicates that such kind of training cut down complaints on police by 10% and excessive force on suspects by 6.4% (Wood et al., 2020). Apart from training, there is a need for policing reform since the existing policies have not managed to reduce the use of excessive force. The reform will only be possible if the government ensures that local, state, and federal policing is compliant with international human rights standards. In line with this objective, state legislatures need to enact and enforce legal limits by requiring police to use de-escalation techniques. These strategies will only be successful if the criminal justice system demonstrates a will to practice discretion instead of intuition and, in this way, promote the wellbeing of citizens.
Conclusion
Criminal justice players, most notably the law enforcement officers, have a mandate of maintaining law and order. In pursuit of this mandate, they are expected to use discretion, which ought to guide all decisions in a criminal investigation. While the Constitution, federal and international human rights laws are clear about how they ought to deal with situations, the police continue to use excessive force. There is a surge in the use of deadly force, which is disproportionately used on unarmed individuals and less-lethal situations. The use of excessive force thus compromises criminal investigation by creating public mistrust. It is for this reason that there is a need to conduct large-scale procedural training as well as undertake reforms to reduce incidences of excessive use of force.
References
Butler, J. M. (2016). Shocking the Eighth Amendment's conscience: Applying a substantive due process test to the Evolving Cruel and Unusual Punishments Clause. Hastings Constitutional Law Quarterly, 43 (4), 861-884.
Carbado, D. W. (2017). From stopping black people to killing black people: The Fourth Amendment Pathways to police violence. California Law Review, 105 (3), 125-142.
Connors, C. J., Archibald, N., Smith, S. M., & Patry, M. W. (2017). Shocking the conscience: Public responses to police use of the “Mr. Big” technique. Journal of Forensic Psychology Research and Practice, 17 (1), 25-37. https://doi.org/10.1080/15228932.2017.1237260
Green, B. A. (2018). Prosecutorial discretion: The difficulty and necessity of public inquiry. Dickinson Law Review, 123 (6), 589-604.
Gross, J. P. (2017). Qualified immunity and the use of force: Making the reckless into the reasonable. Alabama Civil Rights and Civil Liberties Law Review, 8 (2), 67-84.
Gundhus, H. O. (2017). Discretion as an obstacle: Police culture, change, and governance in a Norwegian context. Policing: A Journal of Policy and Practice, 11 (3), 258-272. https://doi.org/10.1093/police/pax012
Lawson, E. (2018). Trends: Police militarization and the use of lethal force. Political Research Quarterly, 72 (1), 177-189. https://doi.org/10.1177/1065912918784209
Rajakaruna, N., Henry, P. J., Cutler, A., & Fairman, G. (2017). Ensuring the validity of police use of force training. Police Practice and Research, 18 (5), 507-521. https://doi.org/10.1080/15614263.2016.1268959
Ristroph, A. (2017). The Constitution of police violence. UCLA Law Review, 64 (5), 1182-1205.
University of Chicago Law School. (2020). Deadly discretion: The failure of police use of force policies to meet fundamental international human rights law and standards . https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1014&context=ihrc
Wood, G., Tyler, T. R., & Papachristos, A. V. (2020). Procedural justice training reduces police use of force and complaints against officers. PNAS, 117 (18) 9815-9821. https://doi.org/10.1073/pnas.1920671117
