Policing Special Populations Research Paper

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Society expects that the police manage a wide variety of problems. Compounding these expectations are special populations that create unique situations that the police must deal with. The nature of these populations as small subsets of society makes them an understudied area in criminal justice research. However, they present important issues for law enforcement, policy makers, and academics. As such, this research paper addresses a number of these populations, including domestic violence offenders, persons with mental illness, juveniles, and immigrants, specifically focusing on the control of discretion associated with them. This research paper begins with a discussion of the factors that influence discretion in cases of domestic violence and follows by overviewing limitations to discretion during these interactions. Next, it describes the interaction of the police with the mentally ill and the impact of discretion on their decision-making in this context. Then the discussion of juveniles highlights both the formal and informal decisions influenced by discretion. Finally, the interaction between police and immigrants is overviewed in the context of profiling and police perception.

Fundamentals

Domestic Violence

In the United States, domestic violence became a topical issue in the late 1970s. At this time, feminists and women rights advocates started to draw attention to domestic violence as it related to the lack of attention by the police. These groups wanted a response from the criminal justice system to address the concerns they had with police choosing not to arrest. This sparked a push from many police departments to take an aggressive stance toward domestic violence, creating mandatory arrest policies rather than the more traditional responses of advising, mediating, or separating disputants (Robinson and Chandek 2000).

Prior to mandatory arrest and aggressive policies being commonplace, research shows mixed results between the police’s use of discretion and domestic violence cases. In an attempt to reduce the problems associated with domestic violence, academics attempted to identify the causes of police discretion. Traditionally, serious violent crimes have been one of the strongest predictors of arrest. However, the police approach domestic violence as a private family issue and have been very reluctant to make an arrest and intervene. This unwillingness to arrest coupled with the belief that domestic violence is a private issue led to the development of a leniency thesis by academics and advocate groups. The leniency thesis proposes that the police are less likely to arrest spouses who assault their wives, compared to other domestic violence victim-offender relationships.

Currently, there is no consensus on whether the leniency thesis reflects reality. However, there are consistent findings that police officers are unlikely to make an arrest in domestic violence cases. Although research on the leniency thesis is mixed, it has helped to shed light on the overall amount of discretion that is exercised by officers in domestic violence cases.

Critics contend that attempts by the police to limit discretion are based on more than just the goals of reducing violence and protecting victims. The police also consider crime control, liability issues, and public opinion. To provide a clear picture of the factors that influence the decision to arrest, it is best to categorize them into demographic, attitudinal, and situational characteristics.

There are three primary demographic characteristics that research focuses on: race, age, and sex. These demographic characteristics are assessed for the responding officer, victim, and offender. The literature on race has not been able to draw firm conclusions. In certain instances, the findings show that minority victims are less likely to have an arrest made on their behalf compared to whites (Black 1971; Ferraro 1989; Smith 1987). However, research does not produce consistent findings when assessing the race of the suspect.

The literature on age and sex characteristics shows that on average, females are less likely to make an arrest than males and older officers are less likely to make an arrest compared to younger officers (Martin 1993; Stalans and Finn 1995). The findings produced by this body of research show that these characteristics might influence officer discretion and should be included in future analyses.

Two primary factors influence the attitudes and discretion of police officers in cases of domestic violence: likelihood of the victim to drop the charges and whether the victim prefers an arrest (Robinson and Chandek 2000). Logic should dictate that if a victim prefers an arrest that the police will be more likely to arrest. The research confirms this hypothesis; however, other situational factors can influence this decision. If the victim used drugs or displayed a negative demeanor, officers were less likely to follow a request (Buzawa and Buzawa 1993). In addition, a reduced likelihood of arrest is replicated in cases where the officer believes the victim will drop the charges.

Previous research on situational characteristics of domestic violence shows that legal rather than extralegal (e.g., attitudinal or demographic characteristics) variables are more important predictors of arrest. This research shows that the use of a weapon during the incident, seriousness of the offense, additional witnesses, use of alcohol or drugs, whether or not the reporter was a female, whether or not the victim was injured, and the incidence of repeat violence significantly increase the chance of an arrest (Avakame and Fyfe 2001; Berk and Loseke 1981; Ferraro 1989; Robinson and Chandek 2000; Worden and Pollitz 1984; Worden 1989). In contrast, if the victim and offender are married, or the suspect leaves the scene, the chance of an arrest decreases.

Attempts to control discretion started from a push to find new ways to reduce domestic violence. The Minneapolis Domestic Violence Experiment (MDVE) was the first attempt to address this by determining whether mandating arrest decreased future domestic violence in a controlled experiment. The Minneapolis experiment, conducted from 1981 to 1982, compared three police options to handle domestic violence situations. The officers were randomly assigned to arrest, remove, or counsel the suspect involved. These procedures were the three standard methods of police response to domestic violence at that time. The experiment was limited to domestic violence cases where both the suspect and victim were present. The results of the experiment indicated that among the three methods, arrest was the most effective at reducing future domestic violence. State legislatures, as a fast fix to the domestic violence problem, quickly adopted the results from Minneapolis. However, the replication of this study in different cities soon showed that the results were short lived.

Researchers began to find in the replicated studies that the deterrent effect of mandatory arrest would soon diminish after a short lag in time. The results after the lag proved contrary to the original finding in Minneapolis; mandatory arrest only increased recidivism rates. Overall, the results of the experiment in Minneapolis and its replications suggest that arrest can reduce domestic violence in some cities but not in others, that it reduces domestic violence among the employed but increases it for the unemployed, and that it has a short-term reduction effect but can increase domestic violence long term. A final point that persisted throughout the domestic violence experiments is the fact that the police in many circumstances can identify those people at risk of suffering future violence. However, the value of privacy and personnel freedom prevents proactive action (Schmidt and Sherman 1993). These studies are an example of an attempt to control police discretion during incidents of domestic violence. Their findings show that this is not an easy task. Controlling or limiting discretion can actually increase the frequency and severity of many problems.

Mental Illness

Police encounters with the mentally ill have increased due to the closure of psychiatric hospitals, overcrowded prisons, and growing population of inmates diagnosed with a mental illness. This population is a serious threat to the police based on the symptoms associated with many mental illnesses. Impaired judgment, disorganized thought, impulsivity, and an impaired ability to perceive risk and protect their person can increase levels of violence during police interactions. Reducing the potential for dangerous encounters is why it is important that the criminal justice system improve the understanding of the police’s interactions with the mentally ill. The ability to understand how decisions are made and the use of discretion in these situations can help protect the police, the public, and persons suffering from mental illness. Ultimately a better understanding can lead to better policies and practices that reduce violence and dangerous encounters.

Prior research identified the police as a form of “street-corner psychiatrist” that describes their role as gatekeeper for both the criminal justice and mental health systems. Describing persons with mental illness as a special population refers to their vulnerability and unpopular stigma. Persons with mental illness in general are more prone to have substance use disorders, homelessness, and victimization. Research suggests that persons with mental illness suffer victimization from procedural justice due to their diminished capacity to understand and invoke the criminal justice system on their behalf, demonstrated by the lack of legal resources they are able to obtain. This highlights the duty and value of police officers as first responders to help persons with mental illness find the resources they need within the community (Gur 2010).

Egon Bittner, in the late 1960s, determined that the police, after contacts with the mentally ill, were more likely to use hospitalization or a psychiatric referral in the most severe cases. In general, however, research finds that the police take an informal approach to deal with mentally ill suspects, such as attempting to calm the person or take them home. These tactics used by police in the 1960s lead to the description of police contacts with the mentally ill as “psychiatric first aid” (Bittner 1967). The police were in a position to handle the immediate situation, but had few solutions to solve the larger problem of mental illness.

Two established principles that guide police discretion in interactions with persons with mental illness are the duties of removing dangerous people from the community and protecting citizens that are unable to help themselves. Police officers are primarily responsible for protecting the community first, before the individual from themselves. The police do not have a legal code that dictates how to resolve situations with the mentally ill. That is, there is no rule of law that determines the degree of mental illness and guides officer discretion. It is known that arrest is a rare disposition and informal dispositions are more common. Therefore, the police base their informal decisions on social and structural factors that occur during a situation, rather than the degree of psychiatric health of the suspect (Teplin and Pruett 1992).

Generally, after accounting for necessary control variables, the police are no more likely to arrest persons with mental illness than without. Applying this to encounters with the mentally ill, one finds that most encounters are order maintenance, which increases the amount of discretion used by the officer. Community context is a factor that should not be ignored. High levels of violence and availability of mental health services can affect the discretion used by officers when deciding whether to make an arrest. Compounding this problem, research shows that the mental health system is tougher for police officers to work with than the criminal justice system. In cases where the suspect appears dangerous, mental health officials are reluctant to provide services. Psychiatry research reports higher rates of arrest for persons with mental illness. In these cases, the discretion of an officer to recognize the symptoms of mental illness may be increasing arrests due to misidentification; police officers do not recognize that the suspect is mentally ill (Engel and Silver 2001).

A framework has emerged to describe the discretion used by police officers during encounters with the mentally ill. Morabito (2007) and Bittner (1967) explain that three “horizons,” the scenic, temporal, and manipulative, influence police discretion. These three horizons include characteristics of the community, offender, and incident. The development of these horizons has indicated that research has focused primarily on mental illness as the sole predictor of arrest. Research in the field of criminal justice shows that there are many factors that influence police discretion when deciding to arrest. Researchers must also consider environmental and organizational factors when trying to determine the independent impact of mental illness on the decision to arrest. Not controlling for these other factors has oversimplified police discretion, a problem hopefully overcome by using the horizon framework to account for them.

There is a difference in the actions of police officers depending on who initiates the contact with a mentally ill suspect. A contact initiated by the police officer can involve more discretion due to the fact that the police officer’s perceptions and attitudes can play a larger role because there is less oversight from supervisors or third-party citizens. In situations when the police respond to a call from a citizen, the wishes of the citizen must be recognized along with an understanding of the behavior that has already taken place (Lamb et al. 2002).

Researchers have also raised the question as to the extent of which mental illness should matter in the decision to arrest, especially in cases of serious crimes. Others maintain that persons with mental illness are not all dangerous. Persons with mental illness commit crimes with differing degrees of seriousness, just like persons free of mental illness. The challenge to the mental health and criminal justice systems is to hold these individuals responsible for their crimes while also providing treatment for those in need.

Extant research suggests that approximately 6–10 % of suspects encountered by the police suffer from a mental illness. The results show that a growing method to reduce police discretion with the mentally ill is the development of Crisis Intervention Teams (CITs). The primary focus of CITs rests on police officer characteristics and training, the goal of which is to reduce the number of mentally ill persons that enter the criminal justice system due to a lack of a better alternative. However, CIT models also incorporate organizational and environmental characteristics that help increase the available resources for police officers when confronting persons with mental illness. Research shows that these teams have a positive, short-term impact. However, for a better understanding of how this model controls discretion, these results must be strengthened; no direct test of the CIT model currently exists (Watson et al. 2008).

Explorations into the control of discretion reveal that mobile crisis teams consisting of police officers, mental health officials, or both can reduce the number of persons with mental illness from entering the criminal justice system. The police are essential in recognizing when persons with mental illness need attention and assisting those people to help find treatment resources. In some circumstances, the use of alcohol or drugs can mask the symptoms of mental illness. This can lead to police officers making an arrest on legal factors that may not be the true cause of the behavior. Compounding this problem even further is the likelihood that a person with mental illness is using alcohol or drugs, possibly intensifying their symptoms. Situations that cause the police to take physical action and subdue a suspect can also hide symptoms of mental illness. Any violence that is displayed during an interaction with the police will increase the likelihood of an arrest. A lack of alternatives leads the police to use an arrest out of mercy and as a final resolution for the problem. Still, when the police do determine that a suspect should be taken to a mental hospital, the mental health officials may present problems, including long waits for treatment that prevent the police from attending to other duties, questioning the judgment of the police that the person is mentally ill, and that the mental health facility may quickly release a suspect that the police view as a danger to society.

Police officers have three choices when handling mentally ill suspects; they can make an arrest, take the suspect to a mental hospital, or solve the problem informally. The situation increases the amount of discretion used by a police officer when making the decision to respond formally or informally. A formal response is either an arrest or hospitalization. Research shows that in most circumstances the first choice is to use an informal method to resolve the situation. However, mental disorder is associated with a higher likelihood of poor demeanor, and police are more likely to arrest a suspect with a poor demeanor. The criminal justice system is not set up for easy entry into the mental health system. Once a record is established, jail or prison is a more likely outcome. Unfortunately, jails and prisons are not the best environment for effective treatment for mental illness (Teplin 2000).

Mental illness is becoming more visible within the community. Although the number of mentally ill is increasing in communities, they are not responding with an increase in acceptance. Discretion of police officers is limited through legal and bureaucratic restrictions. The mental health bureaucracy can complicate and impede the referral of suspects to service. Many psychiatric programs are cautious to admit dangerous suspects or those with many prior hospitalizations. The criminal justice system does not have the luxury of saying no to dealing with mentally ill suspects. Jails are turned into pseudo-mental health facilities. An increase in police training to help identify suspects that exhibit symptoms of mental illness will help to provide the best service to the right people. Negotiating with hospitals to reduce the number of declined suspects will also help. The best approach may be to take the least restrictive alternative to help control discretion and the criminalization of the mentally ill (Teplin 1984).

Juveniles

Juveniles are becoming a growing problem for the entire criminal justice system. In addition, the point of first contact with the criminal justice system for most youth is with the police. This places the police, as a gatekeeper, in the position to make the first decision on whether formal action should be taken against juveniles in the form of arrest or detention. However, the tradition of the criminal justice system is to treat juveniles more leniently due to a feeling that they are not culpable for their actions. This approach is further perpetuated when the courts choose to release juveniles to their parents, making it difficult for the police to remove troubling youth from the streets. Due to this lenient treatment, in many cases, it does not make taking formal action against juveniles worthwhile for police if there is an alternative solution available.

Coupled with the lenient approach from the system, recent focus on crime control strategies and a push to reduce crime have increased the courts willingness to sentence juveniles that are arrested as adults. The blend of crime reduction strategies along with a traditional lenient approach toward juvenile behavior creates unique problems for the police. The police are now forced to make the decision of whether formal or informal action is more appropriate to solve the situation. The officer making this determination exercises a large amount of discretion and can ultimately decide whether the juvenile will have a record or not.

Previous research on police encounters with juveniles shows that there are far more contacts between the two than what ultimately end up in juvenile court. Few data sets to date have collected information specifically on the interaction between the police and juveniles. Research past and present has relied on data collected on police encounters with juveniles during observational studies with patrol officers, as well as interviews with juveniles.

Encounters with juveniles tend to resemble encounters with adults (Pilivian and Briar 1964; Black and Reiss 1970; Worden and Myers forthcoming). The nature of these encounters is typically not serious, does not result in an arrest, and does not involve any action taken by police that is not based on observed legal factors. Officer-initiated encounters primarily occur as the result of officers seeing wanted youths, in response to reported offenses, or direct observation of law violation and suspicious behavior (Pilivian and Briar 1964). Citizens tend to initiate the majority of police-juvenile encounters. Police contacts with juveniles can also occur through referrals from school officials, parents, and others.

A growing body of policing literature demonstrates a wide latitude of discretion that exists during encounters with juveniles. Discretion as it relates to police encounters with juveniles often depends on the officer making the contact (Pilivian and Briar 1964). Patrol officers exercise different discretion than juvenile officers. Officers that specialize in juvenile cases take a stance that formal action, like an arrest, may do more harm than good. On the other hand, patrol officers are concerned with the demands of the complainant and the requirements needed to remedy a situation. The juvenile system also stresses that the officer uses individual characteristics as a determining factor when deciding to make an arrest. This shift from the offense to the offender increases the amount of discretion an officer has by adding more information.

Both situational and organizational factors limit the control of discretion (Lundman et al. 1978). Legal factors of the situation determine the majority of decisions made by the police when encountering juveniles. However, extralegal factors, like demeanor, still play an important role, especially when a disrespectful demeanor is shown toward the police. Organizational factors that limit police discretion result from departmental policies that require police officers to treat juveniles in a more lenient fashion. Departmental policy can also dictate the number of encounters with juveniles by taking a proactive approach. A proactive approach emphasizes the number of contacts the police have with juveniles, attempting to reduce the ratio of juvenile encounters with citizens and police.

There has been limited research on the control of police discretion pertaining to juvenile encounters. This is partly due to the nature of the juvenile court philosophy that more emphasis should be placed on the character and life situations of the juvenile rather than actual behavior. On the other hand, research shows that when the police do decide to apply formal sanctions to juveniles, they base these decisions on legal factors, such as seriousness of the crime and prior record. Therefore, the most discretion used by the police when encountering juveniles is the decision to invoke the formal criminal justice system or not (Pilivian and Briar 1964).

The recent adoption of community-oriented policing (COP) changes the dynamic between the police and juveniles. COP offers the police a new model to address juvenile crime. Community policing officers approach juveniles with a different attitude. This attitude is more proactive and places a greater emphasis on improving the situations of young people at the neighborhood level. The goals of these officers are to enhance prevention, further diversion efforts, and increase advocacy and parental support (Bazemore and Senjo 1997). However, research is unclear on whether community-oriented policing will result in more diversions or arrests of juveniles.

Another issue relevant to the control of police discretion during juvenile contacts involves the decision to interrogate (Feld 2006). Juvenile interrogations present the police with two problems: a lack of the understanding of the law by the juvenile and the ability to understand their Miranda rights. Psychological research examining juveniles competency of the law shows that youths 15 years of age and younger exhibit the greatest lack of understanding compared to adults (Bonnie and Grisso 2000). Psychology literature also reports that juveniles are more likely to defer, or waive, their Miranda rights due to the social pressure of cooperation with police officers and the misunderstanding that their Miranda rights that are granted to them can be taken away. The United States Supreme Court’s rulings in Yarborough v. Alvarado and Fare v. Michael C. draw the line at 16 years of age for juveniles to be responsible to make the decision to waive their Miranda rights. Technology has increased the control of discretion and subsequently officer actions during interrogations. The taping or video recording of the questioning in interrogations serves as oversight to help protect the rights of juveniles. Some research also recommends that the length of the interviews be limited (Feld 2006). Limiting the length of the interrogation reduces the amount of stress the police can generate to coax a confession.

Immigrants

The legal and illegal immigrant populations in the United States over the past few decades have surged. This has created enclaves within communities with their own specific issues, forcing federal, state, and local law enforcement to adapt new methods of policing to attend to their needs. Census estimates show that Latinos are now the largest minority population in the United States, making up approximately 14 % of the population. However, immigration in the United States includes more than just Latino or Hispanic immigrants. Areas of immigrant populations are found across the United States comprised of people from around the world. Immigrants as a special population present the police with unique challenges, specifically with the use of discretion. There are many interactions with immigrants where the police can exercise discretion. These include racial profiling, search and seizure, and more recently the power to enforce federal immigration laws.

Profiling based on immigrant status and race is a continuing issue that the criminal justice system struggles to reduce. Research on race and police decision-making has shown that race is one of many factors that affect discretion. However, even though racial disparities exist in the criminal justice system, controlling for variables like officer and suspect characteristics, organizational structure, and situational and contextual variables diminishes any direct effects of race. The events surrounding September 11, however, have changed the United States’ landscape affecting the use of police discretion toward immigrant populations.

In an effort to prevent another terrorist attack, after those of September 11, law enforcement at all levels is increasing their enforcement of immigration laws. These attacks have also increased the amount of discretion available to law enforcement, mainly through the USA PATRIOT Act of 2001. Local law enforcement now has a role in national security. This discretion is seen firsthand by many immigrants as their privacy in the United States has diminished. However, the extent to which local law enforcement has embraced this increase in discretion is minimal. Many cities with large immigrant populations have adopted mandates that explicitly state immigration enforcement is a federal mandate. Police departments cite many reasons for the adoption of these mandates that include a lack of resources and diminished trust among immigrant groups (Harris 2006).

With immigrant populations, the police may place a stronger emphasis on race. An essential part of any profile includes the race of an individual. The Supreme Court has upheld that the police can use race in combination with other factors to develop a profile. This enhances the amount of discretion afforded to the police when making decisions to stop and search Muslims in airport terminals or legal Hispanic citizens living along the US and Mexican border.

An increase in discretion and closer attention from law enforcement has stressed an already fragile police-immigrant relationship. Immigrant populations are already less likely than whites or blacks to report crimes to the police. This lack of reporting can lead to further reductions in police officers’ ability to control crime. In addition, many immigrants carry with them distrust for the police from negative experiences in their home countries. For example, authoritarian governments and countries plagued by high levels of violence can influence immigrants’ perceptions of the police in a negative fashion (Davis et al. 2001). These perceptions have led researchers to explore further the potential causes of negative perceptions in hopes of strengthening the police immigrant relationship. As a result, research has identified three factors that affect the perceptions of immigrants toward the police: social networks, prior homeland experiences, and contact with US immigration officials (Menjiver and Bejarano 2004).

Perceptions of immigrants toward the police are important in how the police use their discretion toward immigrants. A negative perception can manifest into a negative demeanor in police-immigrant interactions. Demeanor is one factor that can persuade a police officer to use a formal rather than informal disposition, such as making an arrest versus writing a warning. Survey research targeting Chinese immigrants supports the claims that perception is important not only to the police but also to the immigrants. In general, these surveys find that a quality police contact was more important than the quantity of contacts. The views of the Chinese immigrants were that attempts to improve the quality of police services, increase police officers understanding of the language and culture, would increase immigrants’ satisfaction with the police (Chu et al. 2005).

The police may have a difficult time addressing these views. Many attempts to improve police officer relationships with immigrant populations are accomplished through community-oriented policing strategies. Community oriented policing strategies place the officers closer to the public and encourage interaction to address community problems directly. However, community-oriented policing increases the amount of discretion used by police officers, discretion that many immigrant populations are fighting to limit.

Perception and overcoming profiling are not the only immigrant concerns for the police. Language many times can force police officers to use more discretion with immigrant populations than with English-speaking citizens. This presents severe constitutional problems with the interpretation and understanding of suspect rights when an immigrant that does not speak or understand English is read the Miranda warning. However, police departments and officers have taken steps to account for the language barrier. Along the US-Mexico border, Miranda warnings are read in English and Spanish. Many departments in areas with large immigrant populations actively recruit bilingual officers. These have been accompanied with changes to interrogation policies and the presence of an interpreter if necessary.

Conclusion

Police discretion is ever present in the criminal justice system. Special populations of citizens present unique circumstances and situations that increase and decrease the amount of discretion police officers use. These populations include cases of domestic violence, persons with mental illness, juveniles, and immigrants. Research in these areas has unfortunately found that there is no easy way to control police discretion. In some circumstances, findings show that a certain amount of discretion is a positive. Discretion allows the police to invoke informal rather than formal sanctions that reduce the number of people entering the criminal justice system. Discretion also allows the police to direct offenders in need of special healthcare services to resources that can provide alternatives to jail or prison. In other instances, discretion has led to the potential of police infringing on citizens’ constitutional rights. Finally, discretion leaves the police with a choice, one that in cases of domestic violence can leave a victim in a dangerous situation.

In all, the influences on police decision-making are both positive and negative making police discretion hard to control. The special populations here demonstrate these points. Future research should focus on managing discretion in a manner that best serves the public’s interests. The police, guided by more research, must overcome the hurdle of managing discretion in a way that does no harm to the public or impedes officers from accomplishing their goals.

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