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Ah, the folksy Andy Griffith / John Wayne model of policing, or taken to more absurd lengths dirty harry. I suspect you are right, many people are probably ok with bending the rules for a just outcome.

One mechanism I've been toying with, but haven't quite identified a form I find satisfactory is some sort of metered discretion. Rather than living with discretion that can be both misused or used well, or crafting ever finer rules, we could try to grant a kind of budget, or impose a cost that would allow discretion, but have a penalty applied to misuse (or any use).

In the extreme, the Israeli "Necessity Defense" provides one path. In general torture is illegal, but in the extremely-unlikely case of imminent threat, it could lawfully be used to overt disaster. But rather than proscribing an approved approach, it is still illegal in general, the agents responsible would still needed to be tried. But there is a path toward proving justification for exoneration. And intent is not enough, the facts also must be on the on the side of those that applied force. So the agents not only need not only being the threat of the scenario and benefit of using such a tool, but also being willing to prove it court to the point of their peril if they cannot.

Toward another direction, you have weregild systems. Could we tie, say, pensions to non-criminal ("lawful but awful") scenarios? Or a 3-strikes type system? (maybe implemented as number of complaints/timeframe). Could credit be gained somehow as well?

Toward the crazy, could you have a "use of force" tokens that get cached-in like mothers-day-footrub vouchers?

But really all this is beside the point, we should be looking at ways to prevent the need for force.

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How much of that is the exception that proves the rule? The wealthy/powerful can field legal teams to counter. But those with lower means accept the plea-bargain, or out-of-court-settlement. In both cases the truth of matter is less relevant than the ability to apply pressure and costs. Isn't that the core issue?

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And the persecutors completely failed to find an indictable offense that stood a chance of sticking.

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Yeah, in parentheses. I think they're worth mentioning more prominently, even if they don't wear blue uniforms. Alexis de Tocqueville would not have been too surprised at them becoming America's philosopher kings, although that was published before New York passed its Municipal Police Act.

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Note that I included prosecutors in my "police" concept above.

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But they were persecuted endlessly.

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My recollection from this book was that the people who gained the most power/discretion from these changes were prosecutors. On the other hand, Stuntz is a legal scholar so that could reflect what he's focused on.

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Good and thought provoking post.

Interesting analogy (to me anyway). Private firms also end up with too many rules as they grow, and newer/smaller firms can out compete them, and replace them, by being simpler/more streamlined.

Is the problem with public bodies/government /"the law", that this doesn't happen? Could we do better by making it happen? (eg closing and replacing police departments)

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Suggesting that local police don't WANT to prosecute them.

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The net effect of all this is that police can, if they so choose, target most anyone for punishment. That is, for most any target, police can relatively cheaply find a rule the target violated, pressure others to testify against the target, and then finally pressure the target to plead guilty. And police collectively have a lot of discretion in how they use this power.

There were extensive efforts to find dirt on Bill and Hillary Clinton, and neither of them were ever prosecuted for anything...

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I’m not saying this is a good thing. I largely agree with you about the problems that are inherent in a system which gives so much discretion to the police.

I just don’t believe that most people really dislike this. People like the fact that the police have substantial ability to lightly coerce people engages in unsettling but totally legal activities to stop. Think about the bar owner putting up signs saying his ex-girlfriend is a slut and listing all the guys she slept with or kids or rowdy adults making noise in a park near someone trying to hold a memorial. A huge fraction of what police do is leverage that coercive authority to discourage people from behaving in socially unacceptable ways and people like that.

It’s just that the norms and values of the people protesting diverge from those the police now have. As someone who is a big fan of social non-conformity it would be great to change this other problem but I don’t think it’s what most people want.

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I’d argue that a lot of what is going on is that many people (including me among other things) like police to act like we expect high status professionals to act rather than reinforcing their status/authority (ie send the don’t fuck with us or break the laws we actually enforce) in relatively low status ways using direct force or crude threats.

I don’t think people really object (even if they say they do) to the level of authority/discretion the police have but they want it used in the way high status professionals would use it. For instance, I bet if you asked the protestors if it would be appropriate for their ideal police force to be preferentially giving the head of the local KKK tickets or otherwise subjecting the groups they see as the real bad guys to excess scrutiny of their behavior I bet they say yes.

But I’d argue if we want police to be that kind of professional class you need to pay them sufficient wages to employee people who otherwise would get professional jobs.

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