We have just witnessed a prolonged, agonizing, continuing tragedy in Ferguson, Missouri. A promising young man is dead, his hometown wracked by civil unrest and protests, a disproportionate and militarized police response, and a general sense of anger, disappointment and distrust of law enforcement, not only in that area, but spreading among much of the public at large.
So what does this have to do with police discretion and why is it important? Follow below the fold...
Police have the power. If a white kid commits a minor act of vandalism or, let's say, shoplifting, it is up to the cop to decide what to do next. Should he or she (that was a joke, it almost never is a she) take the young rascal back to his family, or should he shoot the fucker dead?
According to the Law Dictionary
Police discretion is a vague term that has an appropriately vague definition. It is defined as the decision-making power afforded to police officers that allows them to decide if they want to pursue police procedure or simply let someone off with a warning. How it looks in practice is different from situation to situation.
And, from...
Criminology
Police discretion is also one of the reasons behind what some people see as racial profiling, as police officers are trained to use their discretion in line with statistics or perceived statistics. It is often perceived that people of certain races are more likely to be guilty of crimes, and this may factor into police choices. While this is technically illegal, because discretion is not an exact science with specified, codified rules, it is very difficult to prove this in court.
Lovely. Wait, it gets better. You see, racial profiling, while immoral and technically illegal, IS police discretion.
Oops, Law Dictionary again...
Police discretion is also one of the reasons behind what some people see as racial profiling, as police officers are trained to use their discretion in line with statistics or perceived statistics. It is often perceived that people of certain races are more likely to be guilty of crimes, and this may factor into police choices. While this is technically illegal, because discretion is not an exact science with specified, codified rules, it is very difficult to prove this in court.
So now that we have established that it is legal to bump off the folks that the powers that be don't like, what about the rest of us? Poor people, women, and such. Are we really all in this together? Yes, what in the hell about them (us)?
Allow me to present, as is my wont, a personal example from my past involving police discretion. It is a particularly grievous one.
Years ago, I was a paid tutor for the computer science department at my college. One of my students was a bright, outgoing, young woman, in her late twenties, I estimate. She was married and pregnant, but still kept up with her coursework until her delivery.
There was something terrible of which I was not aware, however. This woman had been diagnosed with breast cancer months earlier. Because of her pregnancy, they were unable to treat it. She had the option at that time of terminating her pregnancy and having immediate treatment or waiting until after the birth. She chose to wait. Immediately after the birth, she underwent a mastectomy. When she was discharged, her husband, who had stood by her throughout, took her and the baby home. Then something unfathomable happened. He left. He apparently suffered some sort of breakdown and left.
This woman was left alone with a newborn baby, with very little in the way of diapers or infant formula (she could, of course, not breast feed). In desperation, she struggled and dragged her infant, strapped in its carseat and managed to strap the seat in place. She was unable to lift her arms very far, she told me. She then drove to the supermarket and parked in the closest space to the entry. It was a handicapped parking slot. Yes, I'm certain you can see where this is going.
When she entered the store, carefully, slowly dragging the seat with her baby, the manager saw and literally leapt over the dividing wall to help. They got her a chair and filled her order. The manager insisted on driving her home in her own car and called a stock boy to follow them. But when they exited the building, there was a policeman, his foot of the bumper of her car, writing a ticket. After hearing her tearful story, he said, “The law is the law. You broke it.” The store manager vociferously argued with the officer, but to no avail.
The fine was very high. She could not afford it; she decided to contest it. She did. She hoped that the policeman would not show up in court, that she would win by default. When she entered for her hearing, he was there, smug and arrogant. There were other people there as well, however. The store manager was there. The stock boy was there. A few cashiers were there. The store owner had given them the day off to attend. He also sent and paid for his own lawyer. Yes, a lawyer was there. A lawyer was there!
The officer presented his case briefly, then the lawyer began to speak and had her relate her version. The magistrate became livid, not at her, but at the policeman. He tore him a new one. He lectured him on wasting the court's time and the proper application of discretion. He reported this jerk to this superiors.
Afterward, the officer walked up to the woman and told her that she was lucky, that he was still in the right. He was a total bastard throughout with no empathy whatsoever. She told me this entire story after the fact, when she had returned to class. I was dumbstruck. I wish that I had known of her circumstances. We became friends after that.
Beside the fact that this police officer was a lousy human being, he failed to properly use police discretion. Society has expressed an interest and codified accessibility laws, but does the availability of one parking spot (with several adjacent empty ones) outweigh the interest in, oh, I don't know, starving a baby to death? I think not.
This woman had a crappy car. She was profiled as being poor, which she was at the time. She appealed for sympathy, for her illness and her newborn baby. That just made her a moocher and a single mother. Whatever.
When I first heard this story, I was stonefaced, because the victim was telling it to me. I was also shocked. I offered my support and sympathy, but after she left, I locked the classroom door and cried in rage. After that, I told everyone I knew this story. I am doing that again, here. Yes, I know this is not the same as some random black dude getting gunned down by the police, once again. Again and again. It is not the same and I know that. This was an example of the misuse of police discretion. It was a parable, an example. Yet, it is still true.
Police discretion is important. It is necessary. But it needs to be applied properly.
Like maybe, you do not shoot unarmed people? Or threaten a whole town with military assault gear? Or suppress the free speech rights of your citizens? Or arrest and beat up reporters (oh, wait, did I get the order right on that? Did the bastards arrest them first, or beat them first,... well, I await clairification from the cops of Ferguson).