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Discretionary leniency in police enforcement of laws against drinking and driving: Two examples from the state of Maine, USA
of Criminal Justice Vol. 17,pp. 179-186(1989) All rightsreservedPrintedin U.S.A.
0047-2352/89 $3.00+ .OO CopyrightC 1989MaxwellPergamon Macmillan plc
Journal
DISCRETIONARY LENIENCY IN POLICE ENFORCEMENT OF LAWS AGAINST DRINKING AND DRIVING: TWO EXAMPLES FROM THE STATE OF MAINE, USA
ALLAN
Boston
TIMOTHY HEEREN
R. MEYERS
Health Services Section University School of Public Health Boston, Massachusetts 02118
Epidemiology and Biostatistics Section Boston University School of Public Health Boston, Massachusetts 02118
RALPH HINGSON
Social and ‘Behavioral Sciences Section Boston University School of Public Health Boston, Massachusetts 02 118
ABSTRACT
This article examines discretionary leniency in police enforcement of two laws against drinking and driving in the state of Maine: a criminal law ugainst operating under the influence of alcohol (OUI; BAC z .IO) and a law making it an administrative offense for teenagers to drive with BACs 2 .02. A telephone survey of 200 randomly selected police oflicers showed that in the year before the survey twenty-one percent reported decisions not to apprehend and forty-two percent not to arrest drivers suspected of 01/I. Nine percent of oflicers reported decisions not to apprehend, thirty-five percent not to request BAC tests, and thirty-five percent not to cite teenaged drivers suspected of having BACs 2 .02. Those who reported discretionary OUI decisions did so in a mean of nineteen percent of possible apprehensions and twenty-four percent of possible arrests. Those who reported .02 discretion did so in twenty-six percent of apprehensions, ftfty-one percent of possible breath tests, and fifty-two percent of possible citations. Stepwise logistic regression analysis showed three predictors of decisions not to apprehend 01/l suspects: beliefs that officers may have higher police priorities, that OUI jail sentences should be longer, and that OUI cases are di&ficult to prosecute. There were no predictors of decisions not to arrest. OfJicers who favored the .02 law were less likely to exercise discretionary leniency in .02 apprehensions, as were those who believed that OUI cases take too long to come to trial and those with longer police careers. Officers who felt that penalties were too severe were more likely to report discretionary decisions not to request breath tests, as were those with shorter service careers. Officers with shorter service careers reported more discretionary decisions not to cite, as did those who reported that penalties for teenaged OUI offenders are too severe. 179
ALLAN
180
MEYERS.
TIMOTHY
INTRODUCTION Discretion is an intrinsic and often necessary part of police work (Banton, 1964: 12730; Goldstein, 1963; LaFave, 1965; Lipsky, 1980), as it is of law enforcement generally (Gregorio, 1978; Lynxwiler, Shover, and Clelland, 1983; Schuck, 1972). However, as Laurence Ross and others have argued, discretionary leniency in the enforcement of laws against drinking and driving compromises the goal of general deterrence (Ross, 1982; 1987; Ennis, 1977; Ross and Foley, 1987), and it may also expose individual police officers and jurisdictions to liability for the actions of legally intoxicated drivers they apprehend but do not arrest (Harvard Law Review, 1981). As LaFave has noted, police discretion, though critically important and widely exercised,
is poorly
understood:
Perhaps the most significant feature of current criminal justice administration is the great amount of discretion which is exercised by police. Decisions not to arrest because of the nature of the offense, the circumstances of its commission, or some other factor are made routinely the police to a large extent define the outer limits of law enforcement by the way in which they make this decision. There is a common stereotype of police as ministerial officers whose only function is that of gathering evidence and making an arrest whenever sufficient evidence exists. Police themselves tend to reinforce this conception by denying that they exercise discretion and by failing to specify the standards or criteria upon which they base their decisions. Whatever one may conclude about the necessity or desirability of the exercise of discretion by police, it is an issue deserv ing a great deal more attention than it has traditionally been given (1965: 61-62).
A previous study by the present authors (Meyers et al., 1987) investigated levels of police discretion and the factors that affected police discretion in the enforcement of the state of Maine’s (USA) 1981 law against operating motor vehicles under the influence of alcohol (cf., Hingson et al., 1987). That study showed that significant minorities of police officers
HEEREN
and RALPH
HINGSON
reported that they made decisions either not to apprehend (33 percent) or not to arrest (41 percent) OUI suspects in the study year (19831984). Officers who reported discretionary decisions not to apprehend or not to arrest generally did so infrequently-five percent of possible apprehensions and ten percent of possible arrests. Discretionary decisions not to apprehend OUI suspects were more common among police officers in large departments (~20 officers). Officers with longer service careers, administration responsibilities, high personal priorities on OUI enforcement, and favorable opinions of the climate of OUI enforcement reported fewer decisions not to arrest OUI suspects. This earlier study provided interesting insights into police behavior in response to a new law against drinking and driving; it also posed a number of intriguing questions. Were the reported levels of discretion typical of Maine police officers’ behavior or were they abnormally low (or high), reflecting officers’ reactions to a new law? Did police officers exercise consistent levels of discretion in the enforcement of all laws against drinking and driving or did they discriminate among laws? If they discriminated, on what basis? The present authors have conducted a further study in the same setting that addressed some of these questions. This article reports the use of discretion and the factors affecting discretion in the enforcement of two laws against drinking and driving by another, subsequent sample of Maine police officers. One law governs the operation of motor vehicles under the influence of alcohol by drivers of all ages (the original 1981 OUI Law, as amended); the other provides one-year administrative license suspensions for teenaged drivers with blood alcohol levels at or above .02 percent (the “.02 Law”). There are many reasons why police officers might exercise different levels of discretion in the enforcement of the OUI and .02 Laws. On the one hand, they may use more discretion in the enforcement of the .02 Law because of concerns about double standards of behavior or because it is a new law-indeed, a new kind of law--which has not yet been tested in court. On the other, they may
Discretionary
Leniency
in Police
Enforcement
use less discretion because of a concern that teenaged drivers have a higher risk of accidents or a belief that younger drivers have lower tolerance for alcohol. The second study provided both an independent test of the results of the earlier study of levels of discretion and factors affecting discretion in general OUI enforcement and an indication whether officers report different levels of discretion and different reasons for discretion in the enforcement of two different but related laws.
METHODS The study sample of 200 randomly-selected police officers was stratified to reflect the three major types of law enforcement agencies in Maine: the State Police (N = 75), local police officers (N = 75), and county sheriffs’ officers (N = 50). Contact was made with 288 police officers, of whom seventy-five failed to meet eligibility criteria (full-time employment as a police officer in Maine for one year before the survey and a police assignment which, by the respondent’s own assessment, entailed at least a five percent commitment to alcohol and traffic law enforcement). Two hundred of the remaining 2 13 completed interviews. Data were collected by telephone interview, using structured protocols similar to those used in the earlier study (Meyers et al., 1987). Interviews addressed officers’ professional responsibilities and professional backgrounds as police officers in Maine, their attitudes toward the 1981 OUI Law and the Teen .02 Law, both before and after their respective enactments, their opinions of the specific impacts of the major features of each law, their assessments of a range of factors affecting enforcement, their criticisms of the laws, and their recommendations for changes in both the laws and the general climate of law and law enforcement to reduce problems associated with drinking and driving in Maine. Officers were asked to describe five types of discretionary leniency (Table 1): decisions not to stop and not to arrest drivers whom they thought had “at least a 50-50 chance of
of Laws Against
Drinking
and Driving
181
being OUI” and not to stop, not to request breath tests from, and not to process teenaged drivers whom they thought had “at least a 5050 chance” of having BACs 2 .02. In each case, respondents were asked, first, whether they had ever made such decisions in the year before the interview and, secondly, if they responded that they had made such decisions, in what proportion of their encounters with OUI and .02 suspects, respectively. Data were weighted to ensure that each of the three types of police agency-local, county, and state-was represented in proportion to its share of all full-time uniformed police officers in Maine in 1985. Data were analyzed, first, by univariate techniques (Chi-squared for nominal variables; t-tests for interval variables) to determine the statistical significance of the relationships between each of the discretionary variables and each possible correlate. Any correlate that had a statistically significant univariate relationship with a dependent variable at a level of p 5 .05 was then entered into a stepwise logistic regression analysis to determine independent statistically significant effects. Since many independent variables were significantly related to each dependent variable, there were concerns about multiple testing, collinearity, and missing data. Therefore, any independent variable with more than ten missing cases was excluded from the regression analysis. Associations significant at the two-sided 0.05 level are reported, as are odds ratios (OX.) and ninety-five percent confidence intervals (C.I.) for all statistically significant relationships. Results Table 1 shows that there was more reported discretion in decisions related to the disposition of both OUI and .02 suspects (e.g., arrests and citations) than there was in those related to apprehension. There was more discretion, more frequent discretion (mean percents of possible apprehensions, arrests, tests, or citations), and greater variability (standard deviation percent of cases) in reference to .02 than OUI.
182
ALLAN MEYERS, TIMOTHY HEEREN and RALPH HINGSON TABLE 1 MAINE POLICE OFFICERS’ DISCRETION IN THE ENFORCEMENTOF LAWS AGAINST DRINKING AND DRIVING Reported Exercise Discretion
Enforcement
Activity
OUI law Apprehend Arrest .02 law Apprehend Breath Test Cite Unweighted
f%)
of
o/o of Contucts Median
Mean
S.D.
21 42
10 10
19 24
25 28
9 35 3.5
17 50 50
26 51 52
28 36 37
N = 200
Officers gave a number of reasons for exercising discretion. Some were specific to one or the other law; others were common to both. For example, a quarter of those exercising discretion in OUI cases said that they did so because they thought that suspects’ BACs were “borderline;” fourteen percent of those reporting discretion in .02 enfordement reported the same reason. Sixteen percent of those reporting OUI discretion said that they exercised it because the suspect was “close to home;” eighteen percent said it was because there was another licensed driver in the car. Twelve percent of officers who reported .02 discretion claimed the reason was that their departments had “higher enforcement priorities;” only three percent of those who reported OUI discretion made such a claim. Other reasons for the exercise of discretion, none of which was reported by more than five percent of respondents, included excessive paperwork (OUI), concern about stigmatizing offenders (both laws), time constraints (especially at the end of shifts; both laws), weather conditions (both laws), personal acquaintance with the drivers (both laws), and an equity concern about applying different BAC standards to younger and older drivers (.02 Law). Table 2 shows that three of the variables included in the stepwise logistic regression analysis had significant independent relation-
ships with decisions not to stop OUI suspects: officers’ assessments that they sometimes have higher police priorities than OUI enforcement, their recommendations about appropriate jail sentences for OUI, and assessments of the difficulty of proving OUI cases in court. None of the variables in the stepwise logistic regression analysis was significantly associated with officers’ decisions not to urrest drivers suspected of OUI. Table 3 shows that those officers who favored the .02 Law were less likely to use discretion than those who did not favor it or who did so conditionally, as were those who agreed strongly that OUI cases take too long to come to trial and those with longer police careers. Table 4 shows that those officers who felt that penalties were too severe were more likely to report discretionary decisions not to request breath tests, as were those with shorter service careers. Table 5 shows that there were three predictors of decisions not to cite .02 suspects: officers’ assessments of the severity of penalties for teenaged OUI offenders, before and after enactment of the .02 Law, and years of police service. Officers with shorter service careers reported more discretionary decisions, as did those who believed that penalties for teenaged OUI offenders were too severe, both before and after the .02 Law.
Discretionary
183
in PoliceEnforcement of LawsAgainstDrinkingandDriving
Leniency
TABLE 2 STEPWISELOGISTICREGRESSIONANALYSIS OF POLICEDECISIONS NOT TO STOP OUI SUSPECTS 95%
Beta Coefficient
Variable Officers have higher priorities Recommendations re: OUI jail sentences OUI is difficult to prove in court Odds ratios compare (a) those who agree (b) those who feel longer. (c) those who agree Model Chi-Squared
Standard Error
P=
O.R.
.8679
.309
.0050
5.67(a)
(1.65,
19.52)
.8734 - .6008
,371 .306
.0186 .0496
5.74(b) 3.33(c)
(1.30, (1.00,
25.29) 11.31)
Confidence Interval
those more likely to exercise discretion with those less likely: strongly versus those who disagree. sentences should be shorter versus those who feel that they should
be
strongly versus those who disagree. (3 df) = 17.65; p = .0005.
TABLE 3 STEPWISELOGISTICREGRESSIONANALYSIS OF POLICEDECISIONS
NOT TO STOP
.02 SUSPECTS 95%
Variable Favor .02 law OUI cases take too long to come to trial Years of police work
Beta Coeflicient
Standard Error
P=
O.R.
2.306
.626
.0002
10.04(a)
(2.94,
- 1.384 - .206
,508 .083
.0065 .0133
15.94(b) 5.21(c)
(2.17, 116.74) (1.42, 19.16)
Confidence Interval 34.93)
Odds ratios compare those more likely to exercise discretion with those less likely: (a) those who do not favor law or favor it conditionally versus those who favor the law. (b) those who agree strongly versus those who disagree. (c) those with 2 years of service versus those with 10 years. Model Chi-Squared (3 df) = 28.61; p = .OOOO.
CONCLUSION These data, like those from the earlier study (Meyers et al., 1987), show that a relatively narrow range of factors affected police discretion in the enforcement of both laws against drinking and driving. Years of service appeared to be the most consistent predictor of discretionary behavior. Other relevant variables included general attitudes toward police enforcement (e.g., officers’ perceptions that they have higher priorities than alcohol and
traffic enforcement), attitudes toward the judicial processing of alcohol and traffic offenses (e.g., assessments of the length of time it takes for cases to come to trial), and attitudes toward specific alcohol and traffic laws. They also suggest that police officers discriminated in their exercise of discretion: more officers exercised discretion and exercised discretion in a wider range of cases in the enforcement of the Teen .02 Law than in the enforcement of the OUI Law, which governs behavior by drivers of all ages. Officers’ re-
184
ALLAN
MEYERS,
TIMOTHY
HEEREN
and RALPH HINGSON
TABLE 4 STEPWISE LOGISTIC REGRESSION ANALYSIS OF POLICE DECISIONS NOT
TO TEST
.02 SUSPECTS 95%
Variable
Beta Coeflicient
Stundurd Error
P=
O.R.
Severity of penalties for teen drinking, Pre- .02 Years of police work
.123 - .905
.037 ,330
.0060 .OOlO
2.67(a) 6.11(b)
Confidence Interval
(1.48, (1.63,
4.83) 22.87)
Odds ratios compare those more likely to exercise discretion with those less likely: (a) those who believe that penalties are too severe versus those who believe that they are too mild. (b) those with 2 years of service versus those with 10 years. Model Chi-Squared (2 df) = 19.61; p = .OOOl.
TABLE 5 STEPWISE LOGISTIC REGRESSION ANALYSIS OF POLICE DECISIONS NOT
TO CITE
.02 SUSPECTS 95%
Variable Severity of penalties for teen drinking, Pre- .02 Severity of penalties for teen drinking, Post-.02 Years of police work
Beta Coefficient
Standard Error
P=
O.R.
Confidence Interval
.896
,360
.0128
6.00(a)
(1.42, 25.32)
.899 -.lOO
,372 ,036
.0157 .0050
6.04(b) 2.22(c)
(1.36, (1.25,
26.32) 3.96)
Odds ratios compare those more likely to exercise discretion with those less likely: (a) those who believe that penalties were too severe versus those who believe that they were too mild. (b) those who believe that penalties are too severe versus those who believe that they are too mild. (c) those with 2 years of service versus those with 10 years. Model Chi-Squared (3 df) = 24.67; p = .OOOO.
sponses to open-ended questions suggest a number of reasons for this greater exercise of discretion: equity concerns about younger drivers being held to a different standard of behavior than older ones; due process concerns about administrative (versus court) revocation of licenses; preferences for arrests (for OUI or other charges) rather than administrative actions; concerns about the severity of penalties; and concerns that the teen .02 Law would be ruled unconstitutional.
The Maine data suggest that if alcohol-traffic enforcement training programs are to affect levels of discretion, they should, as a number of sources have indicated (Dunlap and As1974; National Highway Traffic sociates, Safety Administration, 1976; Young et al., 1974), stress several themes. For example, they should try to inculcate (and reinforce) positive attitudes toward alcohol and traffic laws, since positive attitudes have been shown to be related to lesser use of discretion. They
Discretionary Leniency in Police Enforcement of Laws Against Drinking and Driving
should also include other criminal justice personnel-most notably, judges and prosecutors-since officers’ beliefs about the general climate of OUI enforcement also have been shown to affect discretion. There also appears to be a need for police administrators to affirm in training programs and to reaffirm in their administrative policies that alcoholtraffic enforcement is a high police priority at all times. At another level, the data suggest that there may be no way to eliminate discretion-that, as LaFave (1965) and many others have suggested, some level of discretionary behavior is an inevitable and, perhaps, even a desirable and lawful (LaFave, 1965: 75-8 1) component of police work, as it is of criminal justice and law enforcement in such diverse realms as immigration and naturalization (Gregorio, 1978), meat packing (Schuck, 1972), and environmental protection (Lynxwiler, Shover, and Clelland, 1983). Ross and Foley ( 1987) have demonstrated that, mandatory sentences notwithstanding, judges exercise considerable discretion in the disposition of convicted DUI offenders. And, as Stuart Diamond (1988) has noted, American prosecutors have almost unfettered authority to decide whom to charge, what crimes to identify, what penalties to seek, what bail to urge, what witnesses to call, what persons to give immunity from prosecution, what evidence to present, what plea bargains to make and what sentences to negotiate.
Like police officers, each group feels that its members generally exercise discretion prudently and in the public interest and, once again like police officers, each resents restrictions of its discretionary realm. In this context, can police officers reasonably be expected not to exercise discretion? If not, what is the appropriate response to the ubiquity of police discretion? One possibility is to provide systematic instruction in the management of discretion (cf., Meyers, 1988). As LaFave has noted, “. . . there are no suggested principles to guide the exercise of . . . discretion” (1965: 71). He continued:
185
supervisory police officials have not tried to articulate and disseminate criteria to be applied in deciding whether to arrest. Either because of fear that any such criteria would be challenged, or for other reasons, nonenforcement decisions continue to be made on an ad hoc basis. Patrolmen are thus left to make decisions on the basis of their own opinions, the observations of more experienced officers, and some informal, and often divergent, advice from precinct personnel. (1965: 157-58)
What might be the goals of such management programs? One possible goal might be the elimination of discretionary decisions not to apprehend suspected drunken drivers. Another might be the reduction of discretionary behavior to a relatively low level-perhaps ten to twenty percent of all encounters-or the elimination of extremes of discretion, such as failure to apprehend or arrest seventy percent or more of suspects. Alternatively, management may be a more effective goal than elimination. Guidelines, or even formal protocols, could be established for the exercise of discretion under different circumstances. Though such guidelines may be inconsistent with the ideology (though certainly not the practice) of law enforcement in the United States, the idea is not unprecedented. Nearly fifteen years ago, a set of model standards for urban police departments in the United States made an explicit recommendation that Every police agency should acknowledge the existence of the broad range of administrative and operational discretion that is exercised by all police agencies and individual officers. That acknowledgement should take the form of comprehensive policy statements that publicly establish the limits of discretion, that provide guidelines for its exercise within those limits, and that eliminate discriminatory enforcement of the law (American Bar Association, 1973: Standard 1.3; cf., Standard 3.1).
Although not entirely consistent with the goals of general deterrence, such guidelines for the reduction or management of discretionary behavior may be necessary and useful compromises with the realities of police work.
186
ALLAN
MEYERS,
TIMOTHY
ACKNOWLEDGEMENTS This research was supported by grant #I ROl AA05709-01 from the U.S. National Institute of Alcohol Abuse and Alcoholism and the U.S. Department of Transportation and grants from the Boston University School of Medicine, the Commonwealth Fund, the state of Maine, and the Milbank Memorial Fund.
REFERENCES American Bar Association (1973). Symposium on ABA standards relating to the urban police function. Sponsored by the American Bar Association and the lntemational Association of Chiefs of Police. Quantico, VA: Federal Bureau of Investigation. Banton, M. (1964). The policeman in the community. New York: Basic Books. Diamond, S. (1988). Prosecutotial discretion: Worthy of Defense? New York Times 22 July 1988: 28. Dunlap and Associates, Inc. (1974). Factors in@encing arrests for alcohol-related traffic violations. Catalog #PB-237 004. Springfield, VA: National Technical Information Service. Ennis, P. K. (1977). General deterrence and police enforcement: Effective countermeasures against drinking and driving? J Safe Res 9: 15-25. Goldstein, H. (1963). Police discretion: The ideal versus the real. Public Admin R 23:142. Gregorio, D. J. (1978). Enforcement is the name of the game: An essay on the immigration inspector at work. Social Focu 11: 235-46. Harvard Law Review (1981). Police liability for negligent failure to prevent crime. Harv Law R 9 1: 82 l40. Hingson, R. et al. (1987). Effects of Maine’s 1981 and
HEEREN
and RALPH
HINGSON
Massachusetts’s 1982 driving under the influence legislation. Am J Pub Health 77: 593-97. LaFave, W. R. (1965). Arrest: The decision to take a suspect into custody. Boston: Little-Brown. Lipsky, M. (1980). Street-level bureaucracy: Dilemmas of the individual in public services. New York: Russell Sage. Lynxwiler, J.; Shover, N.; and Clelland, D. A. (1983). The organization and impact of inspector discretion in a regulatory bureaucracy. Sot Prob 30: 425-36. Meyers, A. R.: Heeren, T.; Hingson, R.; and Kovenock, D. (1987). Cops and drivers: Police discretion in the enforcement of Maine’s 1981 OUI law. J Crim Just 15: 361-6X. Meyers, A. R. (1988). Machines and motives: The limits of technology in the enforcement of alcohol traffic safety laws. Proceedings. International Congress on Alcoholism and Drug Dependence. Oslo, Norway. In Press. National Highway Traffic Safety Administration (NHTSA) (1976). Police management training. Factors influencing DWI arrests, Planning Guide. Washington, D.C.: U.S. Department of Transportation. Ross, H. L. (1982). Deterring the drinking driver: Lrgal policy and social control. Lexington, MA: Lexington Books. -----( 1987). Administrative license revocation in New Mexico: An evaluation. Lan and Policy 9:5S 16. Ross. H. L., and Foley, J. P. (1987). Judicial disobedience of the mandate to imprison drunken drivers. Law & Society 21: 315-23. Schuck, P. (1972). The curious case of the indicted meat inspectors. Harper 245: 81-88. Young, A., and Company. (19743. Factors ittfluencing alcohol safe& action project officers’ DWI (Driving While Irmxicated) arrests. (1974). Catalog #PB-232 538. Springfield, VA: National Technical lnformation Service.
0047-2352/89 $3.00+ .OO CopyrightC 1989MaxwellPergamon Macmillan plc
Journal
DISCRETIONARY LENIENCY IN POLICE ENFORCEMENT OF LAWS AGAINST DRINKING AND DRIVING: TWO EXAMPLES FROM THE STATE OF MAINE, USA
ALLAN
Boston
TIMOTHY HEEREN
R. MEYERS
Health Services Section University School of Public Health Boston, Massachusetts 02118
Epidemiology and Biostatistics Section Boston University School of Public Health Boston, Massachusetts 02118
RALPH HINGSON
Social and ‘Behavioral Sciences Section Boston University School of Public Health Boston, Massachusetts 02 118
ABSTRACT
This article examines discretionary leniency in police enforcement of two laws against drinking and driving in the state of Maine: a criminal law ugainst operating under the influence of alcohol (OUI; BAC z .IO) and a law making it an administrative offense for teenagers to drive with BACs 2 .02. A telephone survey of 200 randomly selected police oflicers showed that in the year before the survey twenty-one percent reported decisions not to apprehend and forty-two percent not to arrest drivers suspected of 01/I. Nine percent of oflicers reported decisions not to apprehend, thirty-five percent not to request BAC tests, and thirty-five percent not to cite teenaged drivers suspected of having BACs 2 .02. Those who reported discretionary OUI decisions did so in a mean of nineteen percent of possible apprehensions and twenty-four percent of possible arrests. Those who reported .02 discretion did so in twenty-six percent of apprehensions, ftfty-one percent of possible breath tests, and fifty-two percent of possible citations. Stepwise logistic regression analysis showed three predictors of decisions not to apprehend 01/l suspects: beliefs that officers may have higher police priorities, that OUI jail sentences should be longer, and that OUI cases are di&ficult to prosecute. There were no predictors of decisions not to arrest. OfJicers who favored the .02 law were less likely to exercise discretionary leniency in .02 apprehensions, as were those who believed that OUI cases take too long to come to trial and those with longer police careers. Officers who felt that penalties were too severe were more likely to report discretionary decisions not to request breath tests, as were those with shorter service careers. Officers with shorter service careers reported more discretionary decisions not to cite, as did those who reported that penalties for teenaged OUI offenders are too severe. 179
ALLAN
180
MEYERS.
TIMOTHY
INTRODUCTION Discretion is an intrinsic and often necessary part of police work (Banton, 1964: 12730; Goldstein, 1963; LaFave, 1965; Lipsky, 1980), as it is of law enforcement generally (Gregorio, 1978; Lynxwiler, Shover, and Clelland, 1983; Schuck, 1972). However, as Laurence Ross and others have argued, discretionary leniency in the enforcement of laws against drinking and driving compromises the goal of general deterrence (Ross, 1982; 1987; Ennis, 1977; Ross and Foley, 1987), and it may also expose individual police officers and jurisdictions to liability for the actions of legally intoxicated drivers they apprehend but do not arrest (Harvard Law Review, 1981). As LaFave has noted, police discretion, though critically important and widely exercised,
is poorly
understood:
Perhaps the most significant feature of current criminal justice administration is the great amount of discretion which is exercised by police. Decisions not to arrest because of the nature of the offense, the circumstances of its commission, or some other factor are made routinely the police to a large extent define the outer limits of law enforcement by the way in which they make this decision. There is a common stereotype of police as ministerial officers whose only function is that of gathering evidence and making an arrest whenever sufficient evidence exists. Police themselves tend to reinforce this conception by denying that they exercise discretion and by failing to specify the standards or criteria upon which they base their decisions. Whatever one may conclude about the necessity or desirability of the exercise of discretion by police, it is an issue deserv ing a great deal more attention than it has traditionally been given (1965: 61-62).
A previous study by the present authors (Meyers et al., 1987) investigated levels of police discretion and the factors that affected police discretion in the enforcement of the state of Maine’s (USA) 1981 law against operating motor vehicles under the influence of alcohol (cf., Hingson et al., 1987). That study showed that significant minorities of police officers
HEEREN
and RALPH
HINGSON
reported that they made decisions either not to apprehend (33 percent) or not to arrest (41 percent) OUI suspects in the study year (19831984). Officers who reported discretionary decisions not to apprehend or not to arrest generally did so infrequently-five percent of possible apprehensions and ten percent of possible arrests. Discretionary decisions not to apprehend OUI suspects were more common among police officers in large departments (~20 officers). Officers with longer service careers, administration responsibilities, high personal priorities on OUI enforcement, and favorable opinions of the climate of OUI enforcement reported fewer decisions not to arrest OUI suspects. This earlier study provided interesting insights into police behavior in response to a new law against drinking and driving; it also posed a number of intriguing questions. Were the reported levels of discretion typical of Maine police officers’ behavior or were they abnormally low (or high), reflecting officers’ reactions to a new law? Did police officers exercise consistent levels of discretion in the enforcement of all laws against drinking and driving or did they discriminate among laws? If they discriminated, on what basis? The present authors have conducted a further study in the same setting that addressed some of these questions. This article reports the use of discretion and the factors affecting discretion in the enforcement of two laws against drinking and driving by another, subsequent sample of Maine police officers. One law governs the operation of motor vehicles under the influence of alcohol by drivers of all ages (the original 1981 OUI Law, as amended); the other provides one-year administrative license suspensions for teenaged drivers with blood alcohol levels at or above .02 percent (the “.02 Law”). There are many reasons why police officers might exercise different levels of discretion in the enforcement of the OUI and .02 Laws. On the one hand, they may use more discretion in the enforcement of the .02 Law because of concerns about double standards of behavior or because it is a new law-indeed, a new kind of law--which has not yet been tested in court. On the other, they may
Discretionary
Leniency
in Police
Enforcement
use less discretion because of a concern that teenaged drivers have a higher risk of accidents or a belief that younger drivers have lower tolerance for alcohol. The second study provided both an independent test of the results of the earlier study of levels of discretion and factors affecting discretion in general OUI enforcement and an indication whether officers report different levels of discretion and different reasons for discretion in the enforcement of two different but related laws.
METHODS The study sample of 200 randomly-selected police officers was stratified to reflect the three major types of law enforcement agencies in Maine: the State Police (N = 75), local police officers (N = 75), and county sheriffs’ officers (N = 50). Contact was made with 288 police officers, of whom seventy-five failed to meet eligibility criteria (full-time employment as a police officer in Maine for one year before the survey and a police assignment which, by the respondent’s own assessment, entailed at least a five percent commitment to alcohol and traffic law enforcement). Two hundred of the remaining 2 13 completed interviews. Data were collected by telephone interview, using structured protocols similar to those used in the earlier study (Meyers et al., 1987). Interviews addressed officers’ professional responsibilities and professional backgrounds as police officers in Maine, their attitudes toward the 1981 OUI Law and the Teen .02 Law, both before and after their respective enactments, their opinions of the specific impacts of the major features of each law, their assessments of a range of factors affecting enforcement, their criticisms of the laws, and their recommendations for changes in both the laws and the general climate of law and law enforcement to reduce problems associated with drinking and driving in Maine. Officers were asked to describe five types of discretionary leniency (Table 1): decisions not to stop and not to arrest drivers whom they thought had “at least a 50-50 chance of
of Laws Against
Drinking
and Driving
181
being OUI” and not to stop, not to request breath tests from, and not to process teenaged drivers whom they thought had “at least a 5050 chance” of having BACs 2 .02. In each case, respondents were asked, first, whether they had ever made such decisions in the year before the interview and, secondly, if they responded that they had made such decisions, in what proportion of their encounters with OUI and .02 suspects, respectively. Data were weighted to ensure that each of the three types of police agency-local, county, and state-was represented in proportion to its share of all full-time uniformed police officers in Maine in 1985. Data were analyzed, first, by univariate techniques (Chi-squared for nominal variables; t-tests for interval variables) to determine the statistical significance of the relationships between each of the discretionary variables and each possible correlate. Any correlate that had a statistically significant univariate relationship with a dependent variable at a level of p 5 .05 was then entered into a stepwise logistic regression analysis to determine independent statistically significant effects. Since many independent variables were significantly related to each dependent variable, there were concerns about multiple testing, collinearity, and missing data. Therefore, any independent variable with more than ten missing cases was excluded from the regression analysis. Associations significant at the two-sided 0.05 level are reported, as are odds ratios (OX.) and ninety-five percent confidence intervals (C.I.) for all statistically significant relationships. Results Table 1 shows that there was more reported discretion in decisions related to the disposition of both OUI and .02 suspects (e.g., arrests and citations) than there was in those related to apprehension. There was more discretion, more frequent discretion (mean percents of possible apprehensions, arrests, tests, or citations), and greater variability (standard deviation percent of cases) in reference to .02 than OUI.
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ALLAN MEYERS, TIMOTHY HEEREN and RALPH HINGSON TABLE 1 MAINE POLICE OFFICERS’ DISCRETION IN THE ENFORCEMENTOF LAWS AGAINST DRINKING AND DRIVING Reported Exercise Discretion
Enforcement
Activity
OUI law Apprehend Arrest .02 law Apprehend Breath Test Cite Unweighted
f%)
of
o/o of Contucts Median
Mean
S.D.
21 42
10 10
19 24
25 28
9 35 3.5
17 50 50
26 51 52
28 36 37
N = 200
Officers gave a number of reasons for exercising discretion. Some were specific to one or the other law; others were common to both. For example, a quarter of those exercising discretion in OUI cases said that they did so because they thought that suspects’ BACs were “borderline;” fourteen percent of those reporting discretion in .02 enfordement reported the same reason. Sixteen percent of those reporting OUI discretion said that they exercised it because the suspect was “close to home;” eighteen percent said it was because there was another licensed driver in the car. Twelve percent of officers who reported .02 discretion claimed the reason was that their departments had “higher enforcement priorities;” only three percent of those who reported OUI discretion made such a claim. Other reasons for the exercise of discretion, none of which was reported by more than five percent of respondents, included excessive paperwork (OUI), concern about stigmatizing offenders (both laws), time constraints (especially at the end of shifts; both laws), weather conditions (both laws), personal acquaintance with the drivers (both laws), and an equity concern about applying different BAC standards to younger and older drivers (.02 Law). Table 2 shows that three of the variables included in the stepwise logistic regression analysis had significant independent relation-
ships with decisions not to stop OUI suspects: officers’ assessments that they sometimes have higher police priorities than OUI enforcement, their recommendations about appropriate jail sentences for OUI, and assessments of the difficulty of proving OUI cases in court. None of the variables in the stepwise logistic regression analysis was significantly associated with officers’ decisions not to urrest drivers suspected of OUI. Table 3 shows that those officers who favored the .02 Law were less likely to use discretion than those who did not favor it or who did so conditionally, as were those who agreed strongly that OUI cases take too long to come to trial and those with longer police careers. Table 4 shows that those officers who felt that penalties were too severe were more likely to report discretionary decisions not to request breath tests, as were those with shorter service careers. Table 5 shows that there were three predictors of decisions not to cite .02 suspects: officers’ assessments of the severity of penalties for teenaged OUI offenders, before and after enactment of the .02 Law, and years of police service. Officers with shorter service careers reported more discretionary decisions, as did those who believed that penalties for teenaged OUI offenders were too severe, both before and after the .02 Law.
Discretionary
183
in PoliceEnforcement of LawsAgainstDrinkingandDriving
Leniency
TABLE 2 STEPWISELOGISTICREGRESSIONANALYSIS OF POLICEDECISIONS NOT TO STOP OUI SUSPECTS 95%
Beta Coefficient
Variable Officers have higher priorities Recommendations re: OUI jail sentences OUI is difficult to prove in court Odds ratios compare (a) those who agree (b) those who feel longer. (c) those who agree Model Chi-Squared
Standard Error
P=
O.R.
.8679
.309
.0050
5.67(a)
(1.65,
19.52)
.8734 - .6008
,371 .306
.0186 .0496
5.74(b) 3.33(c)
(1.30, (1.00,
25.29) 11.31)
Confidence Interval
those more likely to exercise discretion with those less likely: strongly versus those who disagree. sentences should be shorter versus those who feel that they should
be
strongly versus those who disagree. (3 df) = 17.65; p = .0005.
TABLE 3 STEPWISELOGISTICREGRESSIONANALYSIS OF POLICEDECISIONS
NOT TO STOP
.02 SUSPECTS 95%
Variable Favor .02 law OUI cases take too long to come to trial Years of police work
Beta Coeflicient
Standard Error
P=
O.R.
2.306
.626
.0002
10.04(a)
(2.94,
- 1.384 - .206
,508 .083
.0065 .0133
15.94(b) 5.21(c)
(2.17, 116.74) (1.42, 19.16)
Confidence Interval 34.93)
Odds ratios compare those more likely to exercise discretion with those less likely: (a) those who do not favor law or favor it conditionally versus those who favor the law. (b) those who agree strongly versus those who disagree. (c) those with 2 years of service versus those with 10 years. Model Chi-Squared (3 df) = 28.61; p = .OOOO.
CONCLUSION These data, like those from the earlier study (Meyers et al., 1987), show that a relatively narrow range of factors affected police discretion in the enforcement of both laws against drinking and driving. Years of service appeared to be the most consistent predictor of discretionary behavior. Other relevant variables included general attitudes toward police enforcement (e.g., officers’ perceptions that they have higher priorities than alcohol and
traffic enforcement), attitudes toward the judicial processing of alcohol and traffic offenses (e.g., assessments of the length of time it takes for cases to come to trial), and attitudes toward specific alcohol and traffic laws. They also suggest that police officers discriminated in their exercise of discretion: more officers exercised discretion and exercised discretion in a wider range of cases in the enforcement of the Teen .02 Law than in the enforcement of the OUI Law, which governs behavior by drivers of all ages. Officers’ re-
184
ALLAN
MEYERS,
TIMOTHY
HEEREN
and RALPH HINGSON
TABLE 4 STEPWISE LOGISTIC REGRESSION ANALYSIS OF POLICE DECISIONS NOT
TO TEST
.02 SUSPECTS 95%
Variable
Beta Coeflicient
Stundurd Error
P=
O.R.
Severity of penalties for teen drinking, Pre- .02 Years of police work
.123 - .905
.037 ,330
.0060 .OOlO
2.67(a) 6.11(b)
Confidence Interval
(1.48, (1.63,
4.83) 22.87)
Odds ratios compare those more likely to exercise discretion with those less likely: (a) those who believe that penalties are too severe versus those who believe that they are too mild. (b) those with 2 years of service versus those with 10 years. Model Chi-Squared (2 df) = 19.61; p = .OOOl.
TABLE 5 STEPWISE LOGISTIC REGRESSION ANALYSIS OF POLICE DECISIONS NOT
TO CITE
.02 SUSPECTS 95%
Variable Severity of penalties for teen drinking, Pre- .02 Severity of penalties for teen drinking, Post-.02 Years of police work
Beta Coefficient
Standard Error
P=
O.R.
Confidence Interval
.896
,360
.0128
6.00(a)
(1.42, 25.32)
.899 -.lOO
,372 ,036
.0157 .0050
6.04(b) 2.22(c)
(1.36, (1.25,
26.32) 3.96)
Odds ratios compare those more likely to exercise discretion with those less likely: (a) those who believe that penalties were too severe versus those who believe that they were too mild. (b) those who believe that penalties are too severe versus those who believe that they are too mild. (c) those with 2 years of service versus those with 10 years. Model Chi-Squared (3 df) = 24.67; p = .OOOO.
sponses to open-ended questions suggest a number of reasons for this greater exercise of discretion: equity concerns about younger drivers being held to a different standard of behavior than older ones; due process concerns about administrative (versus court) revocation of licenses; preferences for arrests (for OUI or other charges) rather than administrative actions; concerns about the severity of penalties; and concerns that the teen .02 Law would be ruled unconstitutional.
The Maine data suggest that if alcohol-traffic enforcement training programs are to affect levels of discretion, they should, as a number of sources have indicated (Dunlap and As1974; National Highway Traffic sociates, Safety Administration, 1976; Young et al., 1974), stress several themes. For example, they should try to inculcate (and reinforce) positive attitudes toward alcohol and traffic laws, since positive attitudes have been shown to be related to lesser use of discretion. They
Discretionary Leniency in Police Enforcement of Laws Against Drinking and Driving
should also include other criminal justice personnel-most notably, judges and prosecutors-since officers’ beliefs about the general climate of OUI enforcement also have been shown to affect discretion. There also appears to be a need for police administrators to affirm in training programs and to reaffirm in their administrative policies that alcoholtraffic enforcement is a high police priority at all times. At another level, the data suggest that there may be no way to eliminate discretion-that, as LaFave (1965) and many others have suggested, some level of discretionary behavior is an inevitable and, perhaps, even a desirable and lawful (LaFave, 1965: 75-8 1) component of police work, as it is of criminal justice and law enforcement in such diverse realms as immigration and naturalization (Gregorio, 1978), meat packing (Schuck, 1972), and environmental protection (Lynxwiler, Shover, and Clelland, 1983). Ross and Foley ( 1987) have demonstrated that, mandatory sentences notwithstanding, judges exercise considerable discretion in the disposition of convicted DUI offenders. And, as Stuart Diamond (1988) has noted, American prosecutors have almost unfettered authority to decide whom to charge, what crimes to identify, what penalties to seek, what bail to urge, what witnesses to call, what persons to give immunity from prosecution, what evidence to present, what plea bargains to make and what sentences to negotiate.
Like police officers, each group feels that its members generally exercise discretion prudently and in the public interest and, once again like police officers, each resents restrictions of its discretionary realm. In this context, can police officers reasonably be expected not to exercise discretion? If not, what is the appropriate response to the ubiquity of police discretion? One possibility is to provide systematic instruction in the management of discretion (cf., Meyers, 1988). As LaFave has noted, “. . . there are no suggested principles to guide the exercise of . . . discretion” (1965: 71). He continued:
185
supervisory police officials have not tried to articulate and disseminate criteria to be applied in deciding whether to arrest. Either because of fear that any such criteria would be challenged, or for other reasons, nonenforcement decisions continue to be made on an ad hoc basis. Patrolmen are thus left to make decisions on the basis of their own opinions, the observations of more experienced officers, and some informal, and often divergent, advice from precinct personnel. (1965: 157-58)
What might be the goals of such management programs? One possible goal might be the elimination of discretionary decisions not to apprehend suspected drunken drivers. Another might be the reduction of discretionary behavior to a relatively low level-perhaps ten to twenty percent of all encounters-or the elimination of extremes of discretion, such as failure to apprehend or arrest seventy percent or more of suspects. Alternatively, management may be a more effective goal than elimination. Guidelines, or even formal protocols, could be established for the exercise of discretion under different circumstances. Though such guidelines may be inconsistent with the ideology (though certainly not the practice) of law enforcement in the United States, the idea is not unprecedented. Nearly fifteen years ago, a set of model standards for urban police departments in the United States made an explicit recommendation that Every police agency should acknowledge the existence of the broad range of administrative and operational discretion that is exercised by all police agencies and individual officers. That acknowledgement should take the form of comprehensive policy statements that publicly establish the limits of discretion, that provide guidelines for its exercise within those limits, and that eliminate discriminatory enforcement of the law (American Bar Association, 1973: Standard 1.3; cf., Standard 3.1).
Although not entirely consistent with the goals of general deterrence, such guidelines for the reduction or management of discretionary behavior may be necessary and useful compromises with the realities of police work.
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ALLAN
MEYERS,
TIMOTHY
ACKNOWLEDGEMENTS This research was supported by grant #I ROl AA05709-01 from the U.S. National Institute of Alcohol Abuse and Alcoholism and the U.S. Department of Transportation and grants from the Boston University School of Medicine, the Commonwealth Fund, the state of Maine, and the Milbank Memorial Fund.
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