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.

Reflection

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!

CreativePhilo

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Police discretion, law, and social norms

My girlfriend recently told me about an interesting difference between English and German. German has two words for ‘the same’ that differentiates between ‘the same category’ and ‘the same thing’. In English, the particular kind of ‘same’ being indicated can only be understood in context. For example, if I were to say ‘Doug and I own the same dog’ it is textually unclear whether we own the same type of dog, or whether we own a dog together. However, context will usually clarify the meaning. In the previous example, my relationship to Doug will usually indicate which is meant: if we are housemates or partners than I probably mean that we own a dog together, but if we’re just friends than I probably mean that we own the same type of dog. German speakers, interestingly, have essentially the opposite problem: the word is textually clear, but can be contextually confusing because people often use the wrong form. In other words, in English clarity depends on people’s ability to pick up on contextual clues, while in German clarity requires a mastery of the rules of the language.

I think that this provides an interesting anecdote to help explain another idea that I have been working on recently, namely, that making rules more specific often does not necessarily make them clearer. This is especially important at the convergence point between law, the police, and citizens. I want to propose roughly the following: first, societal practice is an interface of law and custom, and second, making laws more specific cannot overpower culture.

First point: societal practice is a synthesis of law and culture. Basically what I am proposing is that law cannot be so specific as to eliminate ambiguity. That is not to say that law is meaningless. Look again to the above example: in English ‘the same’ is ambiguous, but within very specific parameters. Laws outline the space to be interpreted. The remaining work to transition law to practice is achieved through contextual cultural understanding (e.g. if a law said ‘a couple must live in the same house to receive housing benefits’, context clarifies the ‘same’ that is being used).

There are other factors beyond the linguistic at play. For example, the police have limited resources, and they must make decisions as to how resources should be allocated. Theoretically resource allocation could be built into law, but in practice this would probably be unfeasible.

A final note on this point: society is comprised of many cultures (and even within a single ‘culture’ there can be significant disagreement over norms and meaning). The values and interpretations of the police are not universal. In the UK, most officers are white men, and this will inevitably have an impact on the way in which law is culturally interpreted. This has led some to argue for decreasing police discretion (e.g. police in the USA should be more heavily regulated in order to prevent them from disproportionately harming blacks and other minorities). This leads into my next point.

Second point: it is difficult for law to eliminate cultural features of police decision making. I could provide many reasons, but the one I want to focus on is the issue of complexity. As many philosophers have proven, precision does not necessarily improve comprehension. Indeed, the more precise language becomes, the more difficult it becomes to understand. That is not to say that we should not try to be precise. Whether in philosophy or nuclear physics, precision is often a very admirable. What I would say, though, is that precision is exclusionary: it requires study, training, and expertise. Furthermore, most of the activities I have listed are not time urgent. Police officers, however, are not law experts. They have a working knowledge of law, but they are not scholars or researchers. Furthermore, they must often make decisions quickly, and with increasingly low resources. Increasing the specificity of law is therefore very likely to increase both citizen and officer confusion as to what the law actually states. This can potentially have the paradoxical affect of increasing officer reliance on cultural norms, while decreasing agreement among officers on whether officers are acting appropriately (I speak very briefly here of ideas argued for by Pepinsky, read here).

As always, let me know what you think,

CreativePhilo

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