Law Enforcement Discretion; How It Fuels Violence Against Women, and Why it Must Be Restricted
What is law enforcement discretion?
Law enforcement discretion is the power of law enforcement officials to pick and choose which crimes to treat seriously, to which degree, and which crimes to ignore. In the United States, police, prosecutors, and probation officers have virtually absolute discretion in making these choices. This means that no matter how much evidence there is that a crime has taken place, law enforcement officers have no legal obligation to investigate, to write reports, arrest, prosecute, punish the perpetrators, nor, in fact, to do anything at all. Law enforcement discretion also means that when law enforcement officials fail to respond, or fail to respond adequately, victims cannot hold the official to account in a court of law. There is virtually no basis for legal appeal, nor is there any public agency which has veto power over these law enforcement decisions.
The recent 2005 U.S. Supreme Court decision in the case of Castle Rock v. Gonzales shows just how limitless these powers are. In Gonzales, the Supreme Court ruled that even when there are state laws that mandate that police respond in a given way to a particular crime, such as requiring police to make an arrest for a restraining order violation, as was the case of a Colorado state law in the Gonzales case, law enforcement discretionary powers override the state law. The officers in the Gonazales case who violated that state law, resulting in the deaths of Jessica Gonzales' three daughters, could not be held to account for their failures in a court of law.
In other words, any effort to improve law enforcement response to violence against women by passing laws requiring officers to respond one way or another, those laws are little more than wishful thinking. An officer's discretion to choose which crimes to respond to in which way, or to ignore the crime if the officer so chooses, is a choice which supercedes state law.
Over time and up to the present day, U.S. Supreme Court decisions have increasingly strengthened law enforcement discretionary powers.
To see summaries of relevant Supreme Court decisions go to:
An Overview of Eight Key Legal Cases, http://www.justicewomen.com/cj_dutytovictims.html
A similar picture of law enforcement discretion exists around the world. While some countries do have restrictions on prosecutorial discretion, such as laws requiring mandatory prosecution, these same countries don't have restrictions on police discretion, so the problem for women remains basically the same. The police can simply choose not to investigate, or not to send cases to their prosecutors for review.
A couple more points on law enforcement discretion:
- When you consider all the debate, vetting, voting, public input, and hearings that go into creating a law in a democracy, it is nothing less than a reversion to tyranny to then give law enforcement unchecked discretion in choosing whether or not to enforce the law. The results of this predicament are entirely predictable. Law enforcement enforces the laws they like, and ignores the laws they don't like. This gives law enforcement unchecked veto power over the expressed codified will of the people.
- As law enforcement discretionary powers have been progressively strengthened by the courts, legal reformers are increasingly expressing alarm about the oppressive effects of these powers on the rights of suspects and defendants. But nowhere are they responding to the oppressive effects of these discretionary powers on women, in particular, the systematic denial of protection and justice that results to women.
How Law Enforcement Discretion Fuels Violence Against Women.
Though law enforcement discretionary powers apply to their handling of all crimes, violence against women is more vulnerable to abuses of these powers than any other serious crime. This is because violence against women crimes, overall, are law enforcement's least favorite crimes deal with, for many reasons that all boil down to sexism. So naturally, violence against women cases are the cases that are most disproportionately and systematically minimized, dumped, shelved, under-investigated, mocked, brushed off, ignored, and cast aside by law enforcement officials.
In addition, the daunting barricade law enforcement discretionary powers pose to justice for women is magnified by another fact of the criminal justice process. As a case moves through the system it typically passes through the hands of a chain of officials. Starting with a responding officer, a case may then move to a detective, then to a charging prosecutor, and then to a court prosecutor. And this chain is only as strong as its weakest link. Each and any one of these officials may decide to ditch or downgrade the case. And the process ends. In other words, each official serves as a gatekeeper to the next step, and each official has full discretion to ditch or do the case. This means that before a perpetrator is convicted, every official in the chain must come down on the side of dealing seriously with violence against women cases. In the sexist world of law enforcement, what are the chances of that?
Given that so many police and prosecutors don't want to do these cases, the staggering probability is that at least one official in the chain will want to get rid of the case. This inevitably leads to the atrocious statistics we see around the world on law enforcement handling of violence against women cases.
(see Progress or Propaganda here http://www.justicewomen.com/progressorpropaganda_eng.html)
Tragically, a bad response from law enforcement, especially to violence against women cases, is worse than no response at all. A bad response delivers a powerful and authoritative message to society, to perpetrators, and to victims, that violence against women is 'no big deal'. Law enforcement disregard emboldens the perpetrators and weakens the victims. Bad law enforcement responses amount to state collusion and collaboration with the perpetrators. It's a hell of a fix we find ourselves in.
Why we must establish restrictions on law enforcement discretion in order to end violence against women.
Once there is violence or threat of violence, law enforcement, and only law enforcement, has the exclusive power and authority to step in and put the perpetrator under control. Many activists have become so disillusioned and disgusted with law enforcement's failures that they've given up hope of making it better. They've turned their energies in other directions hoping to get around law enforcement altogether.
But that's an impossibility. Law enforcement powers are exclusive powers. Any one, or any organization, that attempts to take over the task of putting perpetrators under control, enforcing the law, or meting out justice, is themselves immediately subject to arrest.
Others seek to work on prevention, and hopefully avoid the need for law enforcement that way. No doubt, prevention is emphatically the ultimate goal. But problem number one is that we don't yet have any prevention programs that have been proven to reduce the violence. And problem number two is that good law enforcement is an integral part of prevention. In fact, good law enforcement has been shown to be the only significant successful preventive of violence against women in existence. And it seems obvious. We can educate magnificently, but if a youngster then goes home to violence, it's doubful any educational program can undo the damage or overcome the effects of the violence. The violence itself perpetuates violence. The cycle of violence has to be stopped. And only law enforcement has the power to step in and and stop it.