In upholding the law, policy is more important than discretion
This article by Randy Petersen originally appeared in Daily Caller August 16, 2018.
When a Michigan police officer arrested an 80-year-old woman for possession of marijuana with an expired medical exemption license, the backdrop was set for a debate. But are we framing this debate properly? Some will point out that the officer’s actions seemed excessive, almost punitive. Others will point to marijuana laws in general and question their value in terms of public safety.
Mike Riggs at Reason does a commendable job of pointing out the ridiculousness of this arrest in his recent article. Clarifying my position here, I do not disagree with Mr. Riggs’ overall analysis but with his conclusion as to responsibility and recommendations for remedy. One of his observations is that police officers need to be better trained in using discretion.
No disagreement here, but what does that mean? If we define discretion as the personal decision made by an official from one of several lawful options, then what exactly do we train a police officer to do? Only enforce the laws that we agree with? Give unequal treatment under the law to some based on what qualities or characteristics?
Discretion is highly subjective, and training someone to use it simply shifts where that subjectivity comes from. Critical thinking skills can be acquired through training, but discretion will always remain highly personal.
Riggs noted with apparent offense that the elderly woman was handcuffed and kept in jail overnight. Most police departments have a policy that arrestees being transported in a squad car will be handcuffed. Unlike the enforcement of laws, police officers have zero discretion in following their department policies. The state or county’s arraignment process and bond system accounts for the overnight stay in jail, not the officer.
Police officers are allowed discretion, in part, because not allowing it would be unworkable. If an officer had to take action on every violation of every law, routine patrol would be impossible.
But at the end of the day, their job is to enforce the laws. Laws that they did not make. Laws they may not even agree with. We are nation of laws, not of men (or great-grandmothers as it were), and to remain so the law must mean something to everyone.
Deciding that the law does not apply to some of us and then relying on the good discretion of a government official to decipher who they should apply to is bad policy. This does not mean that discretion is bad policy, it is absolutely essential, but it does mean that lawmakers need to do a better job when forming policy and only give officers good options to pick from in using that discretion.
If there are four options and one of them is a terrible idea, sooner or later an officer will pick that one and we get headlines like those generated by the arrest of an elderly woman for an expired medical marijuana permit. The solution is to get rid of the horrible option, and it takes some foresight to see which options those might be. Overcriminalization reform efforts are aimed at this very idea and their importance is reinforced when an incident like this occurs.
The purpose of a law should be to generate voluntary compliance, not simply to give a mechanism to prosecute and punish. The prosecutor, in this case, dropped the charge once the elderly woman renewed her license, so in that sense, the system worked. It was clumsy and bordering on barbaric, but the result was within the spirit of the law.
If we want to avoid the parts of this event that repulse the average person, then the policies need to be changed. Good policies and good discretion make for good governance. The policy is much more important than the discretion, because perfect policy — if such can be achieved — would require no discretion.