Police Discretion and Traffic Enforcement: A Government of Men

Police across the nation have long been accused of using the broad discretion afforded to them in traffic enforcement as a pretext for criminal investigation. Despite this widely held belief, there is little evidence to suggest that courts have put forth any effort, or have even considered remedying or reducing the wide spread abuse of police discretion in traffic stops, with the exception of racial profiling. This Article addresses the apparent gap in the legal and social science literature concerning the unequal enforcement of traffic laws. How extensive do the police abuse the discretionary powers they are afforded in enforcing traffic offenses?

And what, if any, legal remedies exist, or should exist, to address the abuse of police discretion in the traffic enforcement context? This Article seeks to explore factors influencing a police officer's decision to issue a traffic summons and the legal restraints, or lack thereof, on the use and abuse of police discretion in traffic enforcement. Because Atwater expands the scope of police discretionary authority in traffic enforcement to include the option of arrest, it is inferred that the same use-abuse of discretion in issuing a summons can or will be extended to the arrest, non-arrest discretion. Implications are discussed.