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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Law, Convention, and the Choice Landscape of Patients Requesting Assisted Sucide

Euthanasia is a touchy subject for many people, and understandably so.  There are strong intuitive reasons behind both the for and against position.  Those who want legal euthanasia can appeal to the idea that we should have a right over our own lives, that we should not be deprived of our autonomy.  Those against can appeal to the externalities that legalizing Euthanasia may generate, and also to the notion that Doctor’s should not have the responsibility (or possibly the right) to kill people.  Previously I came down on the pro-euthanasia/autonomy side.  Though I understand the concerns of the opposition that varies harms could follow from legalizing euthanasia, I felt that all this meant was that we needed to make sure to construct tight legislation.

A paper that I recently read in my program has persuaded me that the problem is more complicated then I originally thought.  This paper, Against the Right to Die by David Velleman, makes the argument that allowing Euthanasia changes the rational choice landscape within which agents operate.  He analogizes allowing Euthanasia to allowing dueling.  If dueling is allowed then people will duel to defend their honour.  However, they would really prefer not to be allowed to duel because then they have not failed to uphold their honour if they do not engage in duels.  In the same way, it may be the case that if euthanasia is legal then some people will rationally choose euthanasia because they feel that their life is a burden on society or their family or something along that lines, but they would really prefer euthanasia just be illegal so that they didn’t have option in the first place.

I find this argument to be quite interesting, and Velleman’s solution even more so.  At the end of the paper, Velleman says that he’s somewhat inclined to believe the best solution to Euthanasia is to have very weak regulations.  Essentially he suggests that it should be illegal, but if someone really wants it then we should just let it happen under the table, in a manner of speaking.  Velleman persuaded me that this is a very good solution – it lets the people who really want Euthanasia have access, but it prevents many of the harmful externalities that might otherwise come about.  The solution is not perfect, of course.  Weak regulation and unwritten rules are prone to unfairness and unequal enforcement.  Sometimes a doctor might be punished for actions many other doctors have done before, or a patient might end up being killed under ambiguous circumstances.  However, I am quite intrigued by the notion that sometimes unwritten rules can make better choice landscapes for rational agents.  The notion vastly complicates what it means to work in policy.

Let me know what you think,


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Consumption and Production and Heidegger

So my posting once a week schedule hasn’t worked out.  Life’s busy, I apologize to all my loyal readers (however many of you there are, I really can’t tell).  But I’m making a post today (or possibly tomorrow, since I need to leave in an hour and a half from the time of this sentence).

In the past I’ve talked about Heidegger’s conception of authentic living.  The core idea is that we need to live in full acknowledgement of our impending death.  Most people, Heidegger claims, live in fear of death, and so they pretend that they will live forever by living like everyone else.  They fear death, so they refuse to acknowledge its approach by living as if there is no hurry, no urgency to life.  Heidegger thinks we should instead stand in full awareness of death, and therefore actualize our potential.

I do not think this is a criticism of Heidegger, but I think that there is a somewhat ironic element to this story as it is acted out in the present day.  I think that many would agree with me when I say that the conception of authentic living in today’s society is, to a significant degree, the entrepreneur and the artist.  Though it is certainly theoretically possible to actualize oneself as an accountant, I don’t think that is most people’s dream.  I’m fairly prepared to write off a desire for wealth as mainly behaving like ‘the they’ because the pursuit of wealth is often for no purpose beyond consuming artistic goods produced by others. Materialistic consumption seems easily cast as one of human’s main habitual and unthinking activities.  That leaves the most common story of authentic living as the artists and the entrepreneur (I know this is not the most exhaustive taxonomy ever written, but oh well.)

So, let’s get to the irony.  The irony is that the caricature of authentic living as it is understood today is the person who produces the goods that are in-authentically consumed.  In other words, authenticity, as a means of self-sustenance, is built upon in-authenticity.

I don’t think this is any kind of substantive critique of Heidegger, but I do think its an interesting thought.

Thanks for reading, let me know what you think,


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Poor Decisions – How Poverty and Marginalization Reduces our Potential for Autonomy

In some of my previous posts I’ve discussed the notion that adversity impairs autonomy.  I’ve recently come across some evidence that reinforces this notion.

There is an idea in psychology called ego depletion.  The basic concept is that willpower is a finite resource.  This maps on to my reflections of autonomy fairly well, though I may expand the idea because I tend to think any mental exertion or effort to impose order within our lives draws upon this a single pool.

A few days ago I saw a presentation by Cass Sunstein, the author of Nudge.  The main concept of the presentation (modeled after the book) is that government can efficiently influence people through careful default setting.  I won’t go further into this concept, but if you read the wiki it will explain further.  The important idea for my purposes is that in many ways it is good if our choice making is minimized.  To draw upon the idea of ego depletion, the more we can conserve willpower the better.  Sunstein threw out an interesting thought near the end of the presentation by noting that poor people need to make more choices then wealthy people do.  Wealth, in many significant ways, reduces the need for decision making.  A wealthy person just doesn’t need to budget as carefully.

This article, Why Can’t More Poor People Escape Poverty, basically talks about what I’ve covered so far.  People with less money burn through scarce mental resources faster.  Having read all this, though, I was still left with a question.  I’d previously claimed that marginalization reduced autonomy, but I wanted to see if I could find any experimental evidence to support the idea.  It didn’t take me too long to find this article: Stigma as Ego Depletion.  The experimental findings of this research project are essentially that people who are exposed to stigma subsequently preform more poorly on willpower tests.

There is an old Nietzsche quote ‘That which does not kill us makes us stronger.”  I do not suggest that we throw out every nuance of the quote, since there is some evidence that exposure to small traumas over time may make us more resilient.  In general, though, adversity has a propensity to undermine our autonomy.

Let me know what you think,


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Rational and Irrational Action – Exploring the Proper Subject Matter of Psychology

One of the courses that I am currently taking is Philosophy of the Social Sciences.  I went into this course thinking that the social sciences were a sub-set of science as a whole, but based on my first few weeks I think that the professor is instead making the argument that the two are quite different.  I’ll probably write more on that topic in the coming weeks, though it is only peripherally related to the particular topic I want to talk about today.

My latest reading for the course was Human Nature and Human History, by Collingwood.  This paper, as the title implies, explores human nature. The paper builds on the notion that human nature is fundamentally rational by suggesting an integral part of this rationality is the ability to benefit from the rational experience of other people.  We can rethink the ideas of other people (i.e. we can learn from the thoughts of others).  Collingwood characterizes history thus – historians look through the facts of history towards the thoughts that drove it.  This is history in an extremely lose sense, since he also says this is essentially what we do when we try to understand others.  This notion of human nature Collingwood puts in opposition to more naturalistic science definitions – he is rejecting the notion that we can capture human nature in statistics and laws in favor of a much more autonomous model.

The previous much abbreviated paragraph summarizes the majority of the article.  At the very end, however, Collingwood has a note about psychology.  He says that if we buy his proposal, we might be wondering where this leaves psychology.  He outlines several options, but his main proposal is that psychology proper should be preoccupied with the non-rational elements of human nature.  By his account rationality can not be properly explored by psychology because rationality is not something that follows ‘rules’ in the general scientific sense of the term.  The non-rational elements of our mind, however, are much more rule abiding and therefore are proper candidates of study.

I cannot decide exactly what I think of this proposal.  On one hand I want to be skeptical, given that there seems to be a danger of separating reason into a special substance or something of that nature.  On the other hand, his account actually fits quite well with some of my explanations of autonomy.  Either way, I find the article very interesting.

Let me know what you think,


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Human as ‘World’

One of my philosophical goals is to build a comprehensive and consistent account of… pretty much everything I can manage to stuff into it.  I think that I’m a systems builder at heart – I want to build edifices out of words which will amaze and astound those who read it.  Many of my previous posts have detailed some of my constructive efforts, mostly focused on autonomy, morality, and epistemology.  Over the last few days I’ve had some interesting larger structural ideas about this project, and I’m going to write some of them out in this post.  Many of them are more full of holes then Swiss Cheese at this point, so, as always, I appreciate any feedback that you have for me.

First I’ll give a very quick summary of my structure as it stands.  We are experiencing entities. It is the substance of our existence, the flesh and bones of agency.  Through our experience we construct our ‘world’.  By our nature we are continuously faced with choice, or the challenge of having will.  I define our beliefs to be the parameters within which we understand our normative choices (i.e. our beliefs define our options).  This means that epistemic beliefs are also at once normative beliefs – we cannot have an experience of ‘is’ without the is also being reflected in our ‘ought’ considerations.  There are two ways in which we can relate to our autonomy – we can be subservient to the world and take it as a given, or we can continuously engage with experience and thus be autonomous.  We cannot seize the second, but instead can only be gifted it by experience.

I feel that in my musings I’ve given this account a decent amount of flesh, but it feels like a part hanging in empty space.  Now I’m going to explore some ideas that I have had for the surrounding structure.  There are a number of problems that I’m trying to address here.  The first problem that I want my structure to address is inter-subjectivity.  As I’ve previously stated, I’m inclined towards Husserlian bracketing of the question of realism verses idealism.  One of the issues that I’ve been struggling with is that I believe there is a real world (in the realism sense) but I also think that this ‘real world’ cannot be thought of as the world that we experience.  It is reality sans all concepts, meaning, and entities.  I do not think of this formless real as ‘truth’ but instead as an unthinkable – for how can we think of things as they would be if they were not an experience?  My move instead is to think of each experiencing entity as a ‘world’ onto themselves.  We constitute a world when we experience.  I think a good case to make this more intelligible is the way that we constitute a storm.  When we experience wind and rain on our skin, and see wind blowing objects around us, the entire space around us becomes ‘stormy’.  Strictly speaking we experience only a tiny fragment – the rain on us, the wind on us – but we extend these fragments into the concept of an entire storm.  In this way our experience becomes an entire world.  These worlds together (as in, many experiencing entities) somehow constitutes the inter-subjective reality of agents (maybe?).

Does this mean that the real is merely that which we perceive?  I would say no.  I divide an experiencing ‘world’ (or person) into two distinct parts: the experience (consciousness, roughly speaking), and the giving of experience (which can be indistinctly cut apart into outside, body, and the unconscious).  We (as consciousness) cannot control the way the world is ‘given’ to us in any direct fashion.  The relationship between these two parts defines our autonomous state.  The ‘given’ can be wholly dominant.  If the given is dominant then consciousness takes experience (the world as it knows it) as inevitable.  In the second state consciousness grapples with the submerged element, or the given.  In this grappling the consciousness takes experience as non-inevitable, and attempts to impose on experience its own nature (desires?).  At the same time, however, the consciousness realizes that it does not know itself, and part of its grappling with the submerged giver is to pull as much as it can from below into itself.  The consciousness can never dominate the given, however.  It will never pull all of the given into the light of experience.  The given is the element that unifies collective experience – as much as the depths of the given are the same, so too do humans inhabit the same world.

Part of the nature of this world entity is action.  The entity continuously expresses its epistemology normatively.  There can be conflict within the entity on normative questions, but the actions of the entity at any one moment represent its ultimate normative position at that moment.  I’m still playing with this idea, but I think even actions such as breathing and sleeping can be captured in this framework – the desires of the body are part of the normative beliefs of the whole, and so we can say that as long as an entity is not committing suicide at any particular moment it desires to subsist.

Let me know what you think, thank you for reading,


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Moral Evidence

I have several times on this blog gone over my moral framework.  To sketch it quickly, I argue that acting morally means acting autonomously.  I argue that to act autonomously necessarily means to do what one thinks is right, and that this is the most we can ask of people.  However, I feel that I make an evasion in this account that I’m still trying to work out.  My account lets me answer a problem that I believe many other accounts of morality find difficult to address.  It gives an account of the nature and the source of normative.  The normative is the force of our own autonomous desires.  The account hinges on the notion that autonomous human nature is the good.  In a certain sense I’m trying to pull off a trick in my account – I’m saying that the reason that we should be good is because that is what we truly want.  To make good desirable I define it as our true desires.

There are two difficulties that I see with my own account.  The first problem, which I consider relatively minor, is the fact that my account depends on the deep down goodness of human nature.  I see this problem as minor because it seems to me that few moral systems can truly stand without assuming this at some level.  There may seem to be a looming kind of relativism in my account that stems from the same problem, but I can address this at least to my own satisfaction.  We each must act out our own autonomy, and I’m inclined to think that someone else acting autonomously cannot truly be considered an enemy to our own autonomous activity.  Even when someone else stands in opposition to our actions, as long as they act autonomously they stand as a puzzle that we must integrate into the world within which we act.

The second problem is that I still run up against the is/ought distinction, despite all my attempts to evade it.  I tried to get away from the is/ought problem by arguing that the normative is a part of our experience.  Just as we experience texture and colour and so on, we also experience the ‘what is to be done with’ of things.  The problem I feel this doesn’t address is what it means to give evidence for moral ideas.  Strictly speaking when we argue we rarely point out the properties of things.  I would never argue that something is red because it looks red.  The true contrast of the is/ought gap is pointing out cause and effect.  We can point out the conjunction of events to say that a relationship exists, and thus give the world properties beyond immediate sensation.  If we want to point out ought, however, we can point to nothing but a brute feeling.  Anything more then that is merely describing the circumstance that gives rise to the feeling of ought (e.g. ‘she is drowning therefore you should rescue her’ really means ‘I see a woman drowning, and this makes me feel an ought.)  I would clarify the problem I am pointing out by saying that I’m not saying the brute feeling is invalid, but that it does not truly seem to be something that can be argued.  The question I am currently wrestling with is what it means to argue a moral point.  Does it mean we are merely debating the is, so as to have the proper feeling arise in response?  Or is there some way in which these feelings can be debated between the autonomous?

Let me know what you think,


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