The Trouble With Officer Discretion






Publication: Corrections Today
Author: McLellan, Mike
Date published: October 1, 2010

Most correctional officers or prison supervisors would love to come to work every day if they could be confident that their officers faithfully and cautiously exercised that catch-all phrase, "officer discretion," that, if taken for granted, could create major problems in a prison system. Even using the term officer discretion is an invitation for missuse of authority ranging from total laxity and complacency, to what the public might perceive as unnecessary brutality.

Officer discretion is "built-in" to most organizations' policies and procedures. It's an essential part of the relationship between staff members and prisoners. However, some officers, after they've been on the job for a while, feel that their discretion somehow trumps the polices and procedures of their facilities. This is particularly true with enforcement of the rules of conduct for the prisoners.

The policies dealing with prohibited conduct for prisoners have been painstakingly and meticulously amended and tweaked through years of court challenges and vagaries until, in most facilities, they are sound enough to be etched in stone. In addition, degrees of severity of misconduct have also been fine-tuned over time so that "gray areas" are, except in truly bizarre cases, a thing of the past.

The catalogue of prohibited conduct in any facility is given to each officer early on in his or her training and to each prisoner, either during the booking process, inmate orientation, or his initial classification. There can be no doubt, with either individual, as to what is allowed and what is not. The mechanism for ensuring that the standard for acceptable behavior is being met falls under the disciplinary process or d-board. This is where, in some cases, the whole notion of officer discretion fails, taking with it the safety of staff and prisoners and the security of the facility.

Examples of prisoner infractions generally fall into one of four categories: minor, low-moderate, highmoderate and major. An example might be:

* Minor - Prisoners exchanging words or posturing to intimidate one another

* Low-Moderate - Same two prisoners shouting at each other and attracting attention of other inmates (creating a disturbance)

* High-Moderate - Same two prisoners laying hands on each other, pushing, shoving or throwing punches (mutual combat, fighting, group or individual demonstration, etc.)

* Major - Prisoner assaulting any person causing injury requiring medical treatment (assault or homicide)

In most institutions, at least according to their policies and procedures, all infractions are to be documented on an incident report. This includes minor infractions. Most facilities allow informal resolution of minor infractions by the line officers or shift sergeant. Without this informality, d-boards would be in session around the clock, creating an administrative nightmare for the hearing officer (presence of the writer of report, witnesses, etc). In fact, hearing officers often complain of being extremely busy even though they are addressing only high-moderate infractions. Line officers share this complaint as well. Most say they don't have time to write up every little infraction they see.

Here is where officer discretion muddies the waters. While no correctional officer could possibly mistake a major infraction for a minor, there is a tendency among some officers to minimize the events that they've witnessed and mentally mitigate the circumstances to the point where they seem to fit the definition of a lesser infraction.

Senior officers often rationalize the event and minimize its severity because they've seen such a wide range of incidents, or consequences for those incidents, and disparate resolutions throughout their careers. A high-moderate infraction, in their opinion, can be adjudicated, as a matter of their discretion, down to a lowmoderate or even a minor. "It's just a bloody nose," or "Well, he needs to learn to keep his mouth shut," are possible responses from the officers that administrators count on to perform their duties correctly. These officers should be leading by example, and using their status as role models to teach newer employees the correct way to report an incident.

There are several reasons that officers fail to write incident reports. Some have a spark of validity; some do not. Here are a few:

Not enough time in a shift. It takes less than five minutes to write a report. If allowed by policy, officers should leave the infraction number up to the shift supervisor to fill in. The reporting officer must, at the very least, write who did what and when.

Poor writing skills. No officer wants to be laughed at because he or she simply cannot communicate in writing. This officer needs more training. If the officer has made it through the probationary period, the shift supervisor needs to offer as much help and encouragement as he or she can.

Nothing happens anyway. Remind staff that something does happen after an incident is reported. If not now, then later when the prisoner commits another offence, or during classification, or even at his sentencing. Incident reports, even minor infractions become a part of the presentence report that the sentencing judge or parole board will consider. Just because a prisoner doesn't get taken to disciplinary segregation as a result of a single incident report does not mean that the system is ineffective.

Officers don't want to damage good rapport with prisoners that has taken so long to cultivate or lose their respect. This is generally a serious case of an officer being in denial. Some officers assume some kind of bond has developed between them and the prisoners they oversee. Admittedly, it can be a boost to anyone's ego when a cell-block full of offenders cheerfully greets an officer, but it can lure him or her into a self-deceptive feeling of kinship. He or she might be good at counseling prisoners, or even disciplining, but an aversion to documenting prisoner misconduct will almost certainly be taken advantage of by the prisoners and a reluctance to "write up" a prisoner will be seen as a sign of weakness.

Not exactly sure what happened. Even if an event doesn't seem to make sense, an officer should document it anyway. If necessary, the security sergeant or the shift supervisor can figure it out later. Officers should write what they saw, what they heard and who was involved, instead of dismissing the incident as a nonevent.

No need to. "These boys listen to me," or "I don't have a discipline problem on my block," is often the toughguy approach. The officer is in denial just as much as "mister nice guy." He or she can crack the whip, but the old adage, "if it isn't written, it didn't happen" will help the recalcitrant inmates run this officer ragged.

A day in the life of a correctional officer can be eight or 12 hours of smooth sailing, or chaotic bouncing around on an angry sea. Report writing is as much a part of the job as conducting searches or supervising work details. If report writing constitutes 10 percent or 20 percent of an officer's responsibilities, then the same ratio should be applied to his performance evaluation. An officer who excels in every part of the job but fails to initiate an acceptable number of incident reports simply cannot be described as giving 100 percent.

How does an administrator get his staff to write reports? Setting quotas would surely backfire, but if an officer goes through an evaluation period without writing any reports, it should be noted. If he or she writes too many frivolous reports just to "get even" with his shift supervisor, that can be noted as well.

The departmental or institutional policies and procedures set a standard of acceptable behavior for the prisoners, and the same polices and procedures, as well as the personnel rules, set a standard for the officers. Line officers' ability to use their own discretion is an important tool in the orderly administration of any facility, and they should be encouraged to make decisions that are within the scope of their authority. However, a more concise definition of "officer discretion" and its limitations needs to be made clear at the beginning of their careers, and reinforced during the course of their employment so that those who wield the term will use it as a tool, and not as a crutch, or worse, as a weapon.

Whose job is it to make this happen? Certainly not the disciplinary coordinator or the hearing officer. The shift supervisors will claim that they have a hard enough time getting the posts covered while providing breaks for their staff members. The last thing they want to do is encourage their officers to sit in front of a computer terminal when there are other duties that simply cannot be put off.

Ultimately, it's the responsibility of the deputy warden or assistant superintendent to read each written report and decide upon the course of resolution. A report can be designated as "information only" and placed in the inmate's file or sent on to the d-board.

The need to inform fellow officers and administrators, in written form, of reportable incidents is crucial to the administration of the facility. It would be ludicrous to think that every tidbit of information is the "tip of the iceberg," but it is irresponsible to believe that those "tips" don't sometimes make themselves visible in the most peculiar ways. The documentation and sharing of information is the only way to ensure that those tips, when they do occur, are recognized for what they are.

Author affiliation:

Mike McLellan was security sergant at Fairbanks Correctional Center for the Alaska Department of Corrections.

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