Policing and Justice

Thesis

1. Not only must police use discretion, given the structure of legal codes,

2. but police use of discretion can likely lead to more just policing.

1. Police Must Use Discretion

Laws are often vague.

They also make many ordinary day-to-day activities illegal.

For example, under most gambling laws, it is illegal for two people to flip a coin to determine who pays for lunch.

But nobody thinks a person should be arrested for this.

Similarly, it is nearly impossible to drive without breaking some sort of traffic law.

But nobody thinks the police should give out tickets for every traffic violation.

Because of this, police must use discretion.

They must decide when to enforce the law and when not to enforce it.

2. Discretion Can Be a Good Thing

By using discretion, police can focus on behaviors that carry a low risk to police legitimacy.

Risks to Police Legitimacy

There are several factors that increase the risk that policing will undermine police legitimacy.

1. The Size of the Burden

Bigger burdens pose a greater risk to legitimacy.

For example, searching random people creates a greater burden than giving a warning.

2. The Distribution of the Burden

Burdens that fall on one particular group pose a greater risk to legitimacy.

For example, only searching brown-skinned individuals creates a greater risk to legitimacy.

3. Initiation of Power

Proactively stopping a crime poses a greater risk to legitimacy than reacting to reported crimes.

A police officer initiating contact with someone creates a different legitimacy risk than a police officer responding to a call for help.

4. Strength of Authorization

Policing behaviors that not everyone agrees are crimes poses a greater risk than policing behaviors nearly everyone agrees are crimes.

For example, policing recreational drug use may carry greater legitimacy risks than policing homicide.

The Upshot

By focusing on low-legitimacy-risk policing, police are more likely to engage in maintaining social order than in preventing crime.

This is likely to decrease the amount of injustice inflicted by police.

Questions

1. One of the divisions that plays a prominent role in Monaghan’s argument is the distinction between crime prevention and order maintenance. How separate are these roles? Should we focus on one at the expense of the other?

2. Ideally, we elect legislators who create laws that the police enforce. Therefore, if police use discretion, they are thwarting the will of the people. How should we respond to this?

3. Many of us agree that there need to be changes to policing. What are some of the barriers to enacting changes to the way we are policed?

4. Monaghan’s argument is an alternative to what are called ideal theories. Some theorists argue that in an ideal world, there would be no police. Therefore, we should just abolish the police, since this will take us one step further toward the ideal society. Do you agree with the ideal theorist’s argument? Should we be more focused on the ideal world instead of the actual world?