Police Discretion with Young Offenders

V. Situational Factors Affecting Police Discretion

1.0 Background

Analysis of the impact of situational factors on the exercise of police discretion with young offenders is a time-honoured tradition in criminology. The classic study of the "police encounter" with the juvenile suspect is that of Black & Reiss (1970), which was replicated by Lundman et al. (1978). Both studies found that the probability that the encounter will result in the arrest of the juvenile is strongly related to the legal seriousness of the crime, the preference of the complainant, the presence of "situational" (i.e. readily available) evidence, and the suspect's demeanour. Both studies underlined the pivotal role of the complainant, who is simultaneously:

  • (a) the instigator of the "incident", since it is normally s/he who first defines an event as a criminal matter by calling the police;
  • (b) the member of the public who, as the victim, has the principal interest in the disposition; and
  • (c) the primary - often the only - source of evidence concerning the incident.

Thus, if there is a complainant, and s/he does express a preference, it is given a great deal of weight by the patrol officer, who often "abdicates his discretionary power to the complainant" (Black & Reiss, 1970: 72).

These studies are noteworthy as much for a couple of factors which were not found to play a role in police discretion as for the factors which did. First, although black youth were more likely than white youth to be arrested, both studies concluded that this was not an effect of racial bias by police, but was explained by the preferences expressed by the (black) complainants for arrest of (black) suspects, versus preferences expressed by white complainants for leniency with white suspects (there were few mixed-race incidents). Second, the juvenile's prior record, which is a major factor in sentencing, was not considered by the researchers, and presumably did not present itself as a factor, because, according to the authors, the studies concerned "encounters" between patrol officers and suspects "in the field": patrol officers in that era generally did not have access to the juvenile's record, and, furthermore, were only deciding whether to arrest, not whether to charge (refer to juvenile court)(Black & Reiss, 1970: 68-69).[89] This is a crucial point with respect to the applicability to the Canadian context of foreign - especially American - research on police discretion with juveniles. Much of the American research, following Black & Reiss, concerns the decision made by a patrol officer in the field whether to arrest; whereas, Canadian researchers are generally more interested in the determinants of the decision to lay, or recommend, a charge. As Black and Reiss themselves point out, the decision whether to refer to court (i.e. lay a charge, in the Canadian context) is a "prosecutorial" (sic) decision which, in the police departments that they studied, was not made by patrol officers, but by youth bureau officers, working in their offices, and probably more oriented toward the expectations of the juvenile court than the immediate situation on the street (1970: 68-69).

Subsequent (and previous) American and British researchers [90] have found broadly similar results: the police decision concerning the disposition of a youth-related incident is affected by (in approximate order of importance):[91]

  • Offence seriousness: police exercise much more discretion in minor cases (Black & Reiss, 1970; Fisher & Mawby, 1982; Gaines et al., 1994; Krisberg & Austin, 1978; Landau, 1981; Lundman et al., 1978; Piliavin & Briar, 1964; Terry, 1967; Werthman & Piliavin, 1967);
  • Prior record (of police contacts and/or convictions): is very influential in the decision to refer the youth to court (i.e. lay a charge), but also in the decision to arrest, if it is made by a youth officer who has access to the prior record; whether or not it led to charges or a conviction, contact with police labels a youth as a probable delinquent, increasing the probability of formal treatment on subsequent contact (Cicourel, 1968; Cohen & Kluegel, 1978; Fisher & Mawby, 1982; Landau, 1981; Lattimore et al., 1995; Morash, 1984; Piliavin & Briar, 1964; Terry, 1967);
  • Demeanour: an officer is more likely to arrest a juvenile suspect who is hostile, uncooperative or disrespectful, partly because of the necessity of establishing and maintaining control of the situation in the street; partly because officers and young people, especially males, place great weight on maintaining "respect"; and partly because in many cases the officer depends on the co-operation of the suspect to learn "what happened", and what the suspect's role was; on the other hand, some researchers have found that "unusually respectful" juvenile suspects are also more likely to be arrested, as their demeanour invites suspicion (Black & Reiss, 1970; Brown, 1981a; Cicourel, 1968; Hohenstein, 1969; Lundman, 1994, 1996a, 1996b; Lundman et al., 1978; Morash, 1984; Smith & Visher, 1981; Winslow, 1973; Worden & Shepard, 1996); Piliavin & Briar (1964) found that demeanour was the most important factor in police discretion with juveniles, and Fisher & Mawby's (1982) research in Britain found that an attitude of remorse, or lack thereof, was the most important factor in police decisions regarding cautioning of 10-13 year olds;
  • Complainant preference: as Black & Reiss (1970) found, if there is a complainant, s/he plays a crucial role, as both audience and main supporting actor, in the officer's disposition of the incident; and if the complainant expresses a preference, the officer will take it very seriously (Hohenstein, 1969; Lundman et al., 1978; Smith & Visher, 1981);
  • Race: some researchers, such as Black & Reiss (1970), Lundman et al. (1978), and Wilbanks (1987) argue that the race of the suspect plays no role in the decision to arrest, once the complainant's role and/or the offence seriousness are taken into account; however, the majority of writers have found evidence that police respond to the race of the suspect (Black, 1980; Dannefer & Schutt, 1982; Fagan et al., 1987; Goldman, 1963; Huizinga & Elliott, 1987; Krisberg & Austin, 1993; Landau, 1981; Landau & Nathan, 1983; Lundman, 1996a; Miller, 1996; Piliavin & Briar, 1964; Pope & Feyerherm, 1993; Reiner, 1997; Smith & Visher, 1981);
  • Age: apart from the obvious effect of the suspect's age in determining whether s/he is legally a child, youth, or adult, research has found that police tend to treat younger juveniles more leniently than older juveniles; younger youth are seen as immature and out to test limits; older youth may be virtually indistinguishable from adult offenders (Fisher & Mawby, 1982; Goldman, 1963; Landua, 1981; Landau & Nathan, 1983; McEachern & Bauzer, 1967; Morash, 1984; Terry, 1967);
  • Gender: some writers have argued that the belief that girls commit fewer and less serious crimes than boys has led to a higher probability that officers will handle female youth crime informally (Morash, 1984), and more leniently (Armstrong, 1977; Chesney-Lind, 1977). Treating girls more leniently has also been attributed to the "chivalry" effect: that predominantly male police officers and other system agents adopt an attitude of benevolent paternalism toward girls, but not to boys. Other research demonstrates that police are more likely to respond harshly to girls involved in minor offences (e.g. shoplifting), but less harshly than to boys, when more serious offences are involved (Teilmann & Landry, 1981); and that police respond more harshly to girls involved in crimes, such as prostitution, which offend paternalistic stereotypes (Armstrong, 1977; Chesney-Lind, 1977, 1988; Chesney-Lind & Shelden, 1992; Terry, 1967);
  • Attitude of the parents, or legal guardians: "…when parents can be easily contacted by the police and show an active interest in their children and an apparent willingness to cooperate with the police, the likelihood [of informal treatment] is much greater" (Bynum & Thompson, 2002: 374; see also Goldman, 1963); on the other hand, if the youth appears to lack responsible adult supervision, s/he is seen as a poor candidate for informal action (Landau & Nathan, 1983).

The limited Canadian literature on police discretion with juveniles is reviewed below, under the separate topic headings. Canadian research has identified some additional factors affecting police discretion: the relationship of the victim and the apprehended youth; the presence and type of accomplices; whether the apprehended youth was under the influence of alcohol or drugs; the location and time of day of the incident; and the "gang" affiliation, if any, of the apprehended youth. These additional factors are addressed in our research. The situational factors which we consider in this chapter are presented in two groups: first, circumstances of the incident, then, characteristics of the apprehended youth.

  • [89] Similarly, "the age status of a suspect [i.e. whether s/he is legally a juvenile] may even be irrelevant in the field" (Black & Reiss, 1970: 69).
  • [90] The limited Canadian literature on police discretion with juveniles is reviewed below, under the separate topic headings.
  • [91] The following review draws on Bynum & Thompson (2002: 366-375), Whitehead & Lab (1999: 190-194) and other sources cited in the text.

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