HUMAN RIGHTS AND POLICE DISCRETION

DOIhttps://doi.org/10.1016/S1521-6136(07)09006-9
Publication Date10 Oct 2007
Pages147-169
AuthorJack R. Greene
HUMAN RIGHTS AND POLICE
DISCRETION: JUSTICE SERVED
OR DENIED?
Jack R. Greene
The safety of the people shall be their highest law
– Cicero, De legibus, 3.3
1. INTRODUCTION
It is perhaps a paradox that policing civil society is at its core the imposition
of the state into private matters, but generally at the will of the populace.
The police walk a delicate line in civil societies, as they at once represent the
visible presence of the law and the capacity of the state for social regulation
and the use of force, while at the same time drawing their legitimacy from
the very populace they police – at least in democratic societies (see Bayley,
1975; Manning, 2003). This balance between state authority and individual
or human rights is at times strained by police actions. Police discretion is
conditioned by many factors imbedded in individual circumstances and how
social ‘‘facts’’ are presented and perceived. However, discretion can be seen
as a mechanism through which state rights and human rights are often
reconciled, if reconciled at all. This is in part due to the observation that
policing worldwide, as undertaken as a state function, both protects and
restrains human behavior. The choices the police make in the exercise of
Crime and Human Rights
Sociology of Crime, Law and Deviance, Volume 9, 147–169
Copyright r2007 by Elsevier Ltd.
All rights of reproduction in any form reserved
ISSN: 1521-6136/doi:10.1016/S1521-6136(07)09006-9
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their discretion either sustain or detract from the human condition and
consequently from human rights as broadly construed. When police act
within the limits of their civic mandate, their authority not their power is
exalted. When police power exceeds their granted authority their legitimacy
is often called into question. Balancing civic legitimacy and state
intervention often rests on the choices made by the police, who wield
considerable discretion in choosing between the means and ends of law
enforcement and of social regulation (Tyler, 2001;Tyler & Huo, 2002).
How the use of police discretion intersects with human rights is the broad
subject of this chapter. Most particularly, the range of what are considered
‘‘coercive’’ police actions that most affect human rights is considered. Our
consideration here first focuses on thinking about the police in their broader
political context, most especially as their actions either facilitate or impede
the exercise of individual and collective liberty. This chapter is most
particularly focused on democratic policing, as policing in totalitarian
regimes is largely based on fear rather than social or community consensus.
Policing most clearly intersects with human rights by way of the various
actions taken by the police that affect free and open human movement and
discourse. The most easily observable tensions between policing and human
rights are associated with police actions such as arrest and taking persons
into custody, the taking of statements (and how those statements are taken)
that may have criminal implications for those making the statements and
who are in custody, and the use of physical restraint, extreme or lethal force.
Each is briefly considered below, but first preceded by a discussion of the
overarching rationale for policing and its implications for human rights.
Also considered here is the facilitating role that police discretion can have
on human rights.
Police discretion is taken here to involve the choices and decisions police
make in pursuit of their institutional objectives and as found in their daily
routine activities (see, Manning, 1977); that is, providing a safe and secure
environment within which civil society functions. Discretion involves police
‘‘making law’’, or at least ‘‘making law come alive’’. Choices in the
application of the criminal sanction begin first with police action typically
taken in an interpersonal or community setting (see, Black, 1976). How
those decisions shape the quality of justice and public perceptions of the
police and the legal system are also considered.
In the end the safety of the people is indeed their highest end, and the
police are charged with formally providing that safety. Of course, many
segments of society contribute to the reality and perception of safety, but it is
the police who are the most visible agents of social control, law enforcement,
JACK R. GREENE148

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