Arrest Practices Essay

Although numerous areas of police practice involve what are essentially ethical issues, perhaps nowhere is this of greater importance than in terms of making arrests. An arrest is by its nature an act of coercion, encroaching on individual lives and affecting families and communities. Therefore certain requirements must be met for an arrest to be ethical, though the potential for unethical arrest practices exists.

Any action likely to impact negatively the life of another may be regarded as an action essentially tied to ethics. Human freedom is generally regarded as an ethical issue in itself and as an essential human right. Thus, deprivation of freedom in the form of an arrest is essentially an ethical issue. Additionally, the types of people most likely to be arrested and under what circumstances certain types of people are most likely to be arrested inevitably leads to issues of justice and fairness—issues essentially ethical in nature. Finally, in a free society, a government use of force, coercion, must be minimally intrusive to be ethical as well as legal. Police arrest practices and the dynamics of arrest are thus ethical in nature as an arrest involves restriction of freedom, coercion, and justice and fairness. That the laws of arrest are many and detailed suggests a great concern by lawmakers that arrest power not be abused. Abuse of rights is both a legal and an ethical issue as an abuse of arrest power will by definition negatively affect the lives of others.

In legal terms, an arrest occurs when government agents seize a person. This rather vague definition, resting in the Fourth Amendment guarantee against unreasonable searches and seizures, suggests strongly that such acts on the part of government agents are not to be taken lightly. More particularly for operational purposes, an arrest may also be described as physically confining or restricting the freedom of another. As such, it is an act of coercion—an application of force.

Police Mandate

The police mandate may be seen as the protection of life and property and preservation of social order (keeping the peace). To accomplish this mandate, under a social contract citizens delegate to the government in the form of a police force much of their right to use force to protect themselves and their property and live in a well-ordered community. Officers are granted a near monopoly on the lawful use of force in trust for the community. In addition to the right to use force, officers are empowered with high levels of discretion as to the circumstances to apply force and the degree of force to be applied under those circumstances. By mandate, the amount of force must be minimal, that is, must cause the least harm to the individual and the community. Although some of this discretionary determination of what is minimal under the circumstances is a matter of law, policy, and training, officers operating under minimal supervision are often left to their own consciences to determine that minimum. For example, during the 1970s a common joke among police officers was that the definition of “probable cause” was “whatever the officer says.”

To be legal in a free society, an arrest must be in consequence of a violation of law, made with probable cause, and utilize the least amount of force necessary to accomplish. Officers may not legally or ethically make an arrest for personal reasons; that is, an officer may not make an arrest in retaliation for a citizen’s attitudinal issues, personal revenge, or advantage for the officer, or as a display of power. Finally, ethical police practice would require the officer to use the least amount of force and thus cause the least harm to the individual and the least social disruption.

As stated, police officers are granted high levels of discretion to perform their duties. In most cases, officers are not required to make an arrest but may rather exercise the power of discretion to apply other means to accomplish a legitimate law enforcement objective. It is this high level of discretion that leads to abuse. There are many reasons for a police officer to make or not make an arrest in a given set of circumstances. To practice ethically, the officer must determine whether an arrest is even necessary. Can the police mandate of protecting life and property and keeping that peace be accomplished through any other means? That is, is an arrest the only means of accomplishing a legitimate objective or is it even the best means?

For example, some states criminalize appearing in public in a state of intoxication. These laws are intended as a means to preserve public order and often date to a time when the majority of the populace was more likely to be offended by the actions of an intoxicated person than is perhaps the case today. By criminalizing the person who is drunk and disorderly, the police were given a tool for responding to complaints and restoring order. Although the letter of the law may permit the officer to arrest such a person, the ethical use of discretion would suggest that an arrest may not be the least coercive means of restoring order. Today, the laws of many states require the intoxicated persons to be drunk to the point they are a danger to themselves or others. This determination may be highly subjective and thus left to the determination of the officer on the scene. Accountability demands the officer justify his or her reasoning for making the arrest in his or her arrest report, but even when the drunk’s actions are documented on videotape, the documentation may not be definitive, and thus the officer’s judgment is still the key factor.

Most states also criminalize “disorderly conduct” or “disturbing the peace.” Although most state statutes attempt to provide some guidance to the officer in determining what constitutes disorderly conduct, there is still sufficient vagueness in the law to permit high levels of discretionary decision making. This discretion may be used as a tool to handle, for example, a mentally ill person when no other alternative methods are legally or practically available, but may also be abused when an officer feels insulted or disrespected.

In his classic article “The Asshole,” John van Maanen makes the case that an officer is more likely to use force (of any degree) when dealing with an “asshole” than any other type of citizen. He states that street officers essentially define an asshole as “anyone who refuses to accept the officer’s definition of the situation.” Thus anyone who challenges the officer’s authority, or who is disrespectful, who refuses to cooperate is more likely to be arrested than someone who displays a more compliant attitude.

It is also possible that a given officer will be more likely to interpret the behavior of some persons as less accommodating than others based on the officer’s perceptions of the citizen’s race, ethnicity, or sexual orientation. So-called racial profiling is often a matter of an officer interpreting more critically the behavior of the young, of certain minorities, or of persons whose appearance fits certain stereotypes. The decision to arrest may thus be based on appearance and demeanor as well as attitude rather than criminal behavior per se.

Justice, most simply, is a matter of everyone getting what they deserve. Fairness refers to equality of treatment under similar circumstances. If a young black male is driving drunk and is arrested and so charged, one might say that justice has been served; the man got what was deserved under the circumstances. Public safety (peace and order) has been preserved and the man will face possible punishment. If a young white male is stopped by police under the same circumstances and given a ride home and admonished not to drive drunk again, one could argue justice was served, but the outcome was certainly not fair. If both young men had received the same outcome under similar circumstances, regardless of what that outcome was, one could argue the outcome was both just and fair.

There are numerous means available to agency executives to curtail or prevent arrests that violate the requirements of public service ethics. Most heavily relied on are training programs clearly stating what constitutes abusive, unethical practices. Additionally, clear policies firmly and fairly enforced will doubtless reduce incidents of misconduct. Finally, the best tool is to recruit and hire persons most likely to honor the public trust.

Bibliography:

  1. Manning, Peter K. “Police: Mandate, Strategies, and Appearances.” In Police and Society: Touchstone Readings. 2nd ed. Victor Kappeler, ed. Prospect Heights, IL: Waveland Press, 1999.
  2. Souryal, Sam S. Ethics in Criminal Justice: In Search of the Truth. 5th ed. Cincinnati, OH: Anderson Publishing, 2010.
  3. Van Maanen, John. “The Asshole.” In Policing: A View From the Street, Peter K. Manning, ed. Pacific Palisades, CA: Goodyear Publishing,

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