Should the police have more discretion?

Police discretion is a contentious issue, particularly around the topic of racial discrimination. The issue is usually framed in terms of equality before the law vs. police effectiveness (I.e. should police have the discretion to employ questionable tactics if those tactics are effective). While this is an important conversation  In this paper I want to explore a radically different interpretation of the significance of police discretion explored in a very interesting paper called ‘Better living through police discretion’, written by Harold E. Pepinsky and published in1984 (download link).

Pepinsky proposes five features of police discretion that he thinks are generally overlooked. The five features are:
1 – police accountability requires discretion
2 – discretion consists of unexplained variation in police decision making
3 – it does not contribute to the already existing class bias in policing
4 – discretion is increased by the imposition of laws, regulations, and rules that set out to curtail discretion
5 – Creating police discretion is necessary for reducing the injustice of policing

I will explore these points in order.

1 – Police accountability requires discretion
Pepinsky’s point here is quite simple: people can only be responsible if they have choices (which he defines as having the ability to do otherwise). Otherwise they are being held responsible for the decisions of those others who regulate their behaviour. The police therefore cannot be responsible to the public if they do not have options in their conduct.

2 – Discretion consists of unexplained variation in police decision making
Some may find Pepinsky’s claim here controversial. The key argument that he is making is that the police only have discretion if their actions are not readily explainable. He provides an example of officers dispatched to instigate a report. Supposedly it was up to officer discretion as to whether an incident required a report. What the investigation found, however, was that the vast majority of officers would only file a report if the dispatch had identified a specific crime. Pepinsky therefore concluded that these officers did not have discretion.

3 – Discretion does not contribute to the already existing class bias in policing
The key to this claim is that the police as an institution are already heavily class biased. This is true in a number of ways, but the most interesting one is probably Pepinsky’s critique of who gets policed in society. The key factual claim he makes is to contest the generally accepted belief that poverty causes crime, and that lower class crime causes more harm than upper class crime. If these assumptions are false, then there is a great deal of explained variation when it comes to the policing of the wealthy and the poor – the poor are policed because the wealthy are in power. Further, Pepinsky thinks that it is a political impossibility that the police will be regulated so as to police the rich and poor equally. It is therefore benecial to increase police discretion (as he has defined it) because that entails reducing the explanatory power of race and class when it comes to police conduct.

4 – Discretion is increased by the imposition of laws, regulations, and rules
This is probably Pepinsky’s oddest point. The basic claim is that introducing new laws makes it harder to predict police behavior. The reason this is the case is because customs (our habitual modes of conduct) make it easy for others to predict how people will behave (or at least agree upon how people should behave). When rules are introduced to regulate police behaviour, this disrupts previously established customs and standards. For a notable period of time after the introduction of new regulation, police discretion is increased due to uncertainty on the parts of both police and those responsible for enforcing regulation on the police.

4.5 – Increasing policing does not increase safety
Before getting into point 5, I want to quickly outline a crucial sub-point. Pepinsky proposes that increasing law enforcement does not significantly increase the safety of citizens. This point rests on A) the vast well of unaddressed crime that the police can never hope to address, and B) the highly harmful acts of high class criminals that are likely never to be prosecuted however many officers we put on the streets. Note, however, that this does not mean that we can simply decrease law enforcement. For though the increase of law enforcement may not have increased safety, its removal will increase the perceived opportunity for crime and disorder.

5 – Creating police discretion is necessary for reducing the injustice of policing
The above four points ultimately feed into Pepinsky’s argument that the way to reduce the injustice of policing is to increase police discretion. The shape of the argument is essentially this: given that police enforcement is almost inevitably unequally distributed, and increasing it does not generally increase the safety of society, we should increase police discretion to not enforce the law. In practice, Pepinsky proposes this would entail giving police the discretion to negotiate standards of conduct locally. Crucially, this means giving citizens the right to decide when to call upon police power. The ultimate goal would be to increase the degree to which problems can be solved without hard law enforcement, and to gradually ease citizens into managing situations without calling upon law enforcement so that it later becomes possible to decrease levels of enforcement without leaving a void.


It is evident, on this review, that Pepinsky’s argument does not purely pertain to discretion – his argument crucially rests on the assumption that policing is inevitably class-biased and he is primarily oriented towards decreasing enforcement for this reason. That being said, he constructs a very interesting account of what police discretion entails, and how expanding it (in certain ways) could lead to the improvement of society. I do wonder whether discrimination would just be shifted from central government to local powers, but I am inclined to agree with his argument that the notion that increasing enforcement will necessarily decrease crime is fallacious, and also agree that policing is heavily class-biased.

Let me know what you think!


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Alternative Realities: Regret, Counterfactual Thinking, and the Creative Mind – Guest post by Ashley Pearson

I am delighted to be publishing CreativePhilo’s first guest post! Today’s article is by Ashley Pearson, a London-based director and playwright specializing in opera, new work and reimagined classics.

Don’t worry, this isn’t
an article about Trump. I promise.

We’ve all been hearing a
lot about regret lately – particularly, people regretting the choice they made
when they were asked a question about the future of their country.
But as artists, what can
we learn from, and how should we deal with, regret?
I’m an artist. I direct
(mostly opera), I write (mostly plays), and I make a lot of mistakes. One of
the best instincts to tell me if I need to change something is regret. It’s one
of the most important tools in my toolbox. I need my regrets to tell me when
I’ve done something that doesn’t align with my artistic vision. Or when I’ve
done something that’s just plain silly (ie. dear lord why did I think the light
should be purple?). I know I can’t let it control me, but I need it and I use
However, regret is also
a powerful force in opposition to creativity. According to a study by Dr. Neal
Roese, people tend to have more regrets when they have more opportunity. Choice
can be a burden. And what is creativity if not a boundless set of choices,
limited only by imagination.
n opera director, I make
decisions all the time. My job is about being decisive and having opinions
about everything from what someone should wear on stage, to how many rehearsals
we need, to what Handel meant when he wrote that melody. And I make a lot of
mistakes. But something I’ve learned through my practise (and there’s a reason
they call it a ‘practise’) is that the niggling feeling of regret that pangs in
my gut means I need to do one of two things: Either file it away as a mistake I
won’t make again; or change it. One of the best pieces of directing advice I’ve
ever received was from Stephen Unwin, who said, in the theatre “everything is
But how do we know what
to change? And how can we envision what we want to change it to?
Counterfactuals are
thoughts about what might have been. An integral indicator of regret, they
present us alternatives to the present moment, and we’re involved in
counterfactual thinking all the time— “I should have had that salad for lunch,”
or “I wish I hadn’t said that.” In my directing work, I am constantly
confronting counterfactuals; ‘I should have given that note like this,’ ‘That
lighting state would be much better if it wasn’t so blue,’ etc. With
counterfactuals, we imagine alternative realities that are somehow better than
the current one. But how can imagining these alternative realities help us?
We can categorize
counterfactuals in a few different ways. Additive counterfactuals focus on
doing something that wasn’t done, for example, ‘I wish I had learned Italian,’ whereas
subtractive counterfactuals focus on things we wish we hadn’t done, and is
about removing a choice, for example, ‘I shouldn’t have ordered those tacos.’
Also, we can categorize
counterfactuals as either upward or downward. An upward counterfactual tells
you how to make something better, while a downward counterfactual only tells
you how to make sure something doesn’t get worse.
“What else could I have done well?”
If I ate more salads, I would be
“What shouldn’t I have done, so I
could do well?”
If I hadn’t had that piece of cake,
I would be healthier.
 “What could I have done that would make this
even worse?”
If I had that piece of cake, I’d be
really unhealthy.*
“What didn’t I do that made this
If I didn’t have salad with my
cake, I’d be really unhealthy.
*The author in no way
wishes to imply you shouldn’t have that piece of cake.
The distinction may be
subtle, but studies have shown that additive counterfactuals enhance creative
thinking, while subtractive counterfactuals can enhance analytical problem
Additive counterfactuals
are marked by the absence of negation. So, to enhance creativity, it may be
wise to try and phrase counterfactuals in an additive way. For example, instead
of thinking “I shouldn’t have made the lighting so blue,” a better phrase may
be “I should have made the lighting more orange.” By using the latter, I’m
imagining a reality in which the lighting is more orange, instead of just
taking a negative view on the ‘blue’ reality. The additive counterfactual also
allows for more specificity. It presents a solution to the problem.
As you can imagine, too much
counterfactual thinking is indicative of stress and anxiety. Too much
counterfactual thinking early in a creative process might be
counter-productive. It is a reflective activity, and it may be best to put
aside self-evaluation until a later phase in the creative process. Try
following a first draft rule: The first time you write something, don’t
evaluate or judge the work. Then, when in later editing stages, bring in that
counterfactual eye. There may be some scientific evidence to back up this
The orbitofrontal
cortex, which is an important area for decision making and emotional processing
in the brain, is one of the main areas involved in our experience of regret.
However, studies have
shown that inhibiting the prefrontal cortex (the larger area the orbitofrontal
cortex is a part of) can enhance creativity. Suppressing this area can help to
disinhibit an individual’s emotional responses. In one study, scientists found “extensive
deactivation” of certain areas (including lateral orbital) of the prefrontal
cortex when jazz pianists were asked to improvise.
This suggests that
spontaneous creative thought is significantly aided by the suppression of areas
associated with regret and counterfactual thinking.
Next time you’re doing something creative (painting, writing,
acting), write down all the moments of regret you have. Then, when you’re done
the activity, try rephrasing all of them as upward, additive counterfactuals.
See if this helps your next creative phase.
Take another creative moment, and try ignoring and pushing out
any regrets or counterfactuals. Try not to control where your mind wanders.
(You’re suppressing your prefrontal cortex) How does this impact your early
creative phase? What about your next creative phase?
Regret and creativity
are inextricable linked through counterfactual thinking, and regret is an
essential part of the creative process. However, we need to be aware of when
regret becomes an inhibitor to creativity, especially in early stages of
creative thinking and idea generation. Regret is a reflective activity, but it’s
better to phrase regrets as additive, upward counterfactuals, to stimulate
creative problem solving.
Regret in creative
practise (and in life) can be a compass guiding us to change.
And finally, presenting
yourself with alternative facts may enhance your creativity. As long as you don’t
believe they actually happened (ok, maybe it’s a little bit about Trump).

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The fetishization of numbers in policy

Note: this article is not about how politicians find numbers sexy. The word ‘fetish’ in this context  designates something that is used or done ritualistically rather than pragmatically.

In the world of UK public policy, everyone loves quantitative skills. Making policy ‘evidence-based’ is considered a matter of significant importance, and the National Health Service is held up as the shining example – primarily because of the prominence of randomized control trials and value-for-money. In the past decade this has led to the development of ‘What works’ centres, such as the College of Policing’s ‘What Works Centre for Crime Reduction”, and LSE’s “What Works Centre for Local Economic Growth”. Based on my research on these centres (from articles such as this), they tend to subscribe to the ‘evidence-based’ movements hierarchy of evidence, with Randomized Control trials at the top and anecdotal experience at the bottom (for those unfamiliar with this hierarchy, my main point is that data is on the top).

This increased emphasis on evidence is not inherently a bad thing. Indeed, in many ways it is a positive development. However, I have a number of concerns on the ways that these work centres interact with policy.

Concern #1: Begging the question – What works… for what?
The title ‘what works’ begs the question of what the interventions are
working for.  On the College of Policing’s What Works Crime Reduction page (link), we are presented with a list of interventions, with data on cost, effectiveness, where it works, and the like. But this cannot answer the question of what the Police should do in the first place.

Concern #2: The ‘what works’ frame
‘What works’ neglects the reality that problems can be described in multiple ways. For example, are we concerned with young hoodlums who have not been taught proper values, or are we concerned with oppressed minorities who are lashing out due to opportunity deprivation. There is often not a natural way to interpret data – our personal values play a significant role. The ‘what works’ language seems to cover up these ambiguities by assuming a common frame.

Concern #3: Politics and evidence
‘What works’ does not seem to engage with the reality that policy overlaps with politics. Evidence is regularly used as ammunition to support pre-existing positions, rather than forming a basis for re-evaluating positions. Not that I mean to be entirely down on politics, I just mean that evidence will not transform politics.

Concern #4: Stifling innovation
When practitioners focus on ‘what works’, their attention is necessarily backwards looking, because we necessarily cannot have evidence on new ideas and approaches. ‘What works’ therefore cannot help us prepare for future problems, and may potentially hinder policy that looks to deal with future problems because ‘its not evidence based’.

Concern #5: The gap between theory and practice
Models and quantification represent reality, but there is always a gap. Further, small errors compound quickly. This is why our ability to forecast the weather drops off very quickly. This does not mean that we should not use models (we must!), but we should do so while being mindful that they are not infallible.

I intend to write a more in-depth article on this topic, but here are my immediate thoughts. Let me know what you think.



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Being Mortal – Book Review

Few books have elicited as strong an emotional response in me as Being Mortal (link). This is perhaps unsurprising given that the book is about death and our (personal, familial, and societal) relation to it.

This book is filled with stories of the dying, but the true tragedy the
book explores is how we as a society systematically fail to help the
dying die well. The author’s thesis is simple: we have put too much medicine into the care of the dying. Modern medicine, he argues, doesn’t know what to do with death, because modern medicine is all about fixing things. There is an excellent quote in the book ‘we desire autonomy for ourselves, but safety for our family’. This is what I would identify as the central explanation for the tragedy being explored according to the book: we keep the dying so safe that we smother them. We render their lives meaningless by taking away all control in the name of prolonging their lives. Indeed, the scientific evidence seems to suggest that in this very act we kill them: freedom can inflict harm, but enjoying life also can lead to longevity.

Above I refer to the dying as ‘they’, or the other. But, Heidegger argued and as this book makes a point of exploring, othering death gives it power over us – we other it because we fear it. The most important point of this book, to me, is that it challenges us to think about the deaths of our loved ones and ourselves. If it is possible or likely that we will play a role in the decision-making of how a relation shall live in their last years, it is important to find out what they want. It is also important to think about our own deaths, and to think about what we want.

I highly recommend the book. Thank you for reading, and let me know what you think.


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First reflection on the 2016 American election

The more I have thought and researched for this post the more sombre and hesitant I have become. I initially intended to explore similarities and differences between the American election, Brexit, and the election of Justin Trudeau. One perspective that has been replicating itself in my my news-feed that I found initially appealing was the idea that liberal arrogance strongly contributed to Trumps triumph, along with a failure to empathize with Trump supporters. These are ideas that I still wish to explore at
some point, but not yet.

The reason I will refrain from such analysis is because, over the course of my research, I was exposed to the levels of fear many are experiencing post-election, fear which is entirely justified. Trump has said some very scary things. Though we can all hope he will be moderate in office than he was on the campaign trail, the next four years are, at the moment, a black box.

There is a great deal more that will be said, a great deal more that must be said. But I want to start by acknowledging those who are afraid. To those who are safe, do not mock the fearful, do not belittle them, and do not trivialize them, for they are rightfully afraid. Stand with them.

That being said, I believe that it is also important to refrain from becoming angry at those who did vote for Trump. I aim to make no judgement as to the character and conduct of his supporters. I instead cannot help but indulge in one piece of analysis: I believe that a crucial factor in this election, a factor that seems to be becoming more and more prominent in western democracies, was tribal isolation. Anger, however righteous, does not facilitate dialogue, and dialogue, as ever, is the non-violent way forward. This also means we must listen, and truly seek to understand: to insincerely seek dialogue is to fail.

Thank you for reading,
Ryan Workman

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The meaning of political posts

This is not the epistemology post I promised, but we’ll get there.

Public discourse is a matter of significant importance to democracy, and I believe that there is a general sentiment that it is going down hill (this observation may be rendered less astute by the fact that we as a species seem to have a general propensity to think things usually are going down hill). In this post I want to talk about the political meaning of Facebook posts.

When I trawl through my news-feed at the moment, I am inundated by posts and shares on the US election. Primarily the posts are either bashing Trump or praising Obama (and occasionally someone says something nice about Hillary). Even outside of elections people regularly post political content. One post that stood out to me was a friend who posted something like ‘I notice people have been unfriending me. I must be too political, hehe’. I think that there is something revealing in this post not just about the meaning of the posts of this particular friend, but about political dialogue on social media in general. The important thing to note is the pride my friend was demonstrating in his political stripes. If the purpose of his posts was to communicate with those he disagreed with, he was evidently failing. Rather, he seemed to be taking satisfaction in his ability to cause others to self-select their agreement with him. In other words, through political posting he was sorting out who agreed with him and who did not. In support of this notion, it was interesting how people responded to this post. Many people posted stating how they liked his political posts or were happy that he was saying things that needed to be said, with a few belittling those who unfriended my friend. What I am driving at is that political posts on Facebook and the like often seem to be directed towards those who agree with the post, not those that disagree. When we post political content on social media, we often do not seek to engage with those with whom we disagree, but to demonstrate to our friends our political allegiances. We aim to display our colours to our enemies and our friends, not to actually communicate information.

Let me know what you think,

Thank you for reading,


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Truth vs. reality

I believe I have just had a breakthrough in my understanding of truth. The classical (and intuitively dominant) theory of truth is probably the correspondence theory, which basically proposes that truth entails the correspondence of a statement to reality. The correspondence theory of truth, despite its intuitive appeal, is poorly regarded for a variety of reasons. One problem is defining what it means for a statement to ‘correspond’. Another problem is whether the correspondence itself represents a ‘truth’ (which leads to infinite regression). All of this I found easy enough to grasp (as in, by the end of a philosophy intensive undergraduate degree I more or less felt I had a handle on it). What I continued to struggle with was ‘if truth is not correspondence, what is it?’ There are, of course, a variety of alternatives, but explaining them will not get to the nub of my confusion. One example is the coherence theory of truth, which proposes (to quote the Stanford Encyclopedia of Philosophy) ‘A belief is true if and only if it is part of a coherent
system of beliefs.’ Maybe to some of you this makes total sense, but the notion left me entirely flummoxed. Specifically, I was flummoxed by the idea that truth was a property of relations between beliefs. Why did believes matter when determining truth? I was, of course, stuck on a a very fundamental misunderstanding of the transformation the concept of truth undergoes when it transitions from correspondence theory to a coherence theory, namely, truth ceases to be about reality.

This is the breakthrough. Truth is not necessarily about reality. When we ask ‘what is truth’, we are not necessarily asking about how the world is. We might be asking about how the world is, but not necessarily. Instead, epistemology is concerned about the criteria by which sentences are deemed true or false. Correspondence theory proposes sentences should be deemed true or false based on whether they correspond to reality, while coherence theory proposes that truth or falsity is determined by the relationship between beliefs. Coherence theories therefore draw a distinction between beliefs and the reality that those beliefs are about: the question is not whether beliefs fit with reality, but whether beliefs fit with each other.

In my next post I will explore this issue in relation to knowledge and Justified True Belief.

Thank you for reading,


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