Bobvis offers up a thought for a radical change in law enforcement: the elimination (or near-elimination) of prosecutorial and police discretion.

In looking through this, I see three basic complaints. I don’t necessarily disagree with any of them, but here’s a paraphrase:

#1 – The law is overcomplicated to the point of absurdity, to the point where literally nobody can say with any certainty that they haven’t ever (or even haven’t recently) broken some law. This becomes especially annoying when we apply the legal principle “ignorance of the law is no defense” – since most laws are written such that only a lawyer specializing in Field X really understands them (and even then, plenty of debate usually rages). Expecting everyone to manage to keep abreast not just of the content of all laws that affect them, but also the changes to that law constantly being made, seems pretty absurd.

#2 – “Police disproportionally choose to enforce certain laws against certain groups.” As I’ve said before, I don’t buy the whole “police are always racist” line of thought. However, I will certainly believe that certain laws are enforced more than other laws (and even to the point of “enforcing” when there hasn’t been a violation, see below), simply because it is more profitable (fines, etc) for the police to enforce those laws rather than other laws.

#3 – Where multiple laws become involved, prosecutors can too easily abuse the discretion they have to choose which charges to file. This becomes even worse as the system becomes more and more broken, too many people are coerced into pleading guilty when they are actually innocent by the disparity between plea sentencing and post-trial sentencing (see also here), and of course the system is designed to coerce you directly from the moment you first start talking to the cops. This is especially true when even taking the stand in your own defense becomes a punishable offense if you’re found guilty, under sentencing guidelines that will either (a) attempt to convict you of “perjury” (if you say “I didn’t do it” and a jury finds otherwise) or will bump up the sentencing guideline for your being “not remorseful” (obviously, if you testify in your own defense, you’re “not remorseful”) or “obstructing justice.”

On the flipside, I think there needs to be room in the system for at least some police and prosecutorial discretion. As an example: if someone’s taillight goes out, there’s a good chance they don’t know about it. A police officer pulling them over and giving them a warning (and I believe “warnings” should be logged so that other officers can tell if someone’s already been recently warned or has been simply ignoring the warnings and not altering their behavior) is not a bad thing; it helps get the vehicle repaired and keeps the streets a little safer. Likewise, there are times when the law is simply badly written or otherwise not wisely applied to a situation, and I’d like to think that – on average at least – the police officer would have sound enough judgement to recognize this.

As for the oversight option… we’re dealing with humans, here. If you start analyzing cops by a quota of how many tickets they write, then you give them a quota and we get into the problem of cops who ticket innocent people for imaginary offenses in order to meet quota. If you stick observers with them randomly, all you do is increase the number of eyes in the vehicle looking for crimes – and “missing” a crime can be as simple as having your vision obstructed while taking a sip of your coffee. If you run a camera in the vehicle, same deal; the camera may not always be where the officer is looking (though I DO think that dashboard cameras are laudable for traffic stops, and that retention of the video ought to be mandatory by law to prevent “he said, she said” problems between the cop and the citizen later).


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2 Responses to Fixing Enforcement

  1. trumwill says:

    I don’t buy the whole “police are always racist” line of thought.

    I gotta comment on this real quick, then I’ll move on. There is a difference between saying “police are always racist” (which I very much agree is not true) and saying that the police might be more inclined to scrutinize and assume misconduct when dealing with some demographic groups than with others.

    That takes me to my next point. The “demographic” groups don’t actually have to be a racial minority. It could be groups of young people, young white kids in a black neighborhood with a drug problem*, people driving sports cars, drivers with out-of-state plates, people who happen to be on the road shortly after last-call, and so on.

    Sometimes there are circumstances where the increased scrutiny is warranted. The problem with such discretionary laws, though, is that I think it makes it likely that people that they went to the trouble of pulling over or watching more closely will get ticketed for something just to justify the way that they spent their time. Sort of like “Oh, well he passed the breathalizer and I didn’t see any drugs in the car, but I still saw him drive within three feet of the curb which is against traffic code.” Or, more generally, it gives them an excuse to pester somebody for no reason other than the vague sense that the person seems like they might be suspicious.

    Somewhat along those lines, prosecutorial discretion can lead a prosecutor who can’t get someone on the crime that they believe the person committed on something tangential just to put them away. Sorta like Al Capone, where paying taxes is something that has to be enforced, it’s obvious that they were offense-shopping, looking for something to hang their hats on.

    So I agree with you and Bob that it does present a real problem. I’m with you, though, in that it’s a hard thing to enforce or apply oversight to.

  2. Bobvis says:

    I wasn’t referring to strict oversight in the form of quotas or other such nonsense. I do think that it ought to be in their oaths that they agree to uphold *all* laws though regardless of situational factors. Should they be found to have violated this requirement, there should be some sort of consequence. (This may not be losing their jobs, but it should be *something*.) If we have few enough laws, then this wouldn’t be that difficult for police officers to accomplish.

    Regarding discrimination among cops, I have to think that if I were in the business for a couple of years, the number of crimes committed by young, poor, minority males wearing odd clothing would start to wear on me. You bet I’d be more likely to ticket such a guy than the hot woman or the old lady who don’t look like she could hurt a fly. I don’t even see this as a really controversial point. Attractive women are famous for getting off without a ticket. Keep in mind that discrimination in favor of one group is the same thing as discrimination against everyone else.

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