Our criminal law system gives discretion to many actors, in effect, pardon criminals, vary their punishment. Police officers and their bosses can choose not to arrest, or to charge with a lower crime, prosecutors and their bosses can choose not to prosecute, to prosecute for a lower crime, or to settle on a lower crime, judges and juries can choose not to convict and to make mild or severe sentences, and governors and presidents can pardon them, and prisons can parole them.
The problem is having draconian laws and then neutering them with discretion.This leaves a club in the hands of law enforcers to club whom they don't like.
It is better to have smaller punishments meted out at every infraction.
The problem of this way of enforcing rules is:1) politicians can not start pushing for flashy punishment, because there is nothing moderating their stupid decisions.2) people would be very upset if stupid rules were enforced blindly
Discretion is the way politicians can make flashy laws without experiencing an immediate backlash (or fall prey of their own idiocy).
What in the incentive for the law enforcers to use discretion wisely for the good of society? I think near none.And this if we believe they know and want the good of society.
Actually, we had this in Italy from 2006.It is named SICVE (commonly called Tutor) - Informative System to Control Speed.
The system record only the vehicles with a mean speed higher than the allowed moving between two "gates". Then they send the owner of the vehicle a ticket.
Reality is you don't really want discretion in law enforcement, just sensible legislation.
Discretion is needed when blind application of the legislation would be socially damaging. But laws must be blind to be socially acceptable and useful.
With Something like SICVE you could have proportionate punishment for infractions:
1) speed up just 10% more than the limit, a small fine or small punishment
2) speed up more than 10% but less than 20%, a bigger fine or punishment
3) speed up 30% or more than the limit, burn your driving license.
Then you could have an archival story of everyone infractions and tailor the punishment to their history (first time to be more lenient and increase punishment for later infractions, but some discount by time).
Most people are law abiding! If they think cops are fundamentally honest but restricted by regulations in their effectiveness, it is entirely reasonable for them to suspect they will benefit from introducing more discretion.
The general idea is that crime is hard to define for regulatory implementation, but "I know it when I see it". No sure if this is true.
Seems you are claiming that speeding is an unusual case, where discretion isn't used well. Just a coincidence that it happens to the case most people know best?
I think the evidence in your post is consistent with my alternative interpretation.
Most people (including me) think they personally benefit from discretion because they believe "real" crime (violations of law that generate social harm, vs. violations that don't) is mostly committed by a small minority of "bad people", which doesn't include themselves.
So when they violate the law, they think there's rarely social harm, and that police will mostly exercise discretion "correctly" and so in their favor.
I think your speeding (1-1 on harm) vs. trespassing (3-2 on harm) results supports this.
As both a speeder and trespasser, I confess that my speeding sometimes causes social harm, but I think my trespassing never has.
I admit to having strong pre-existing views on this topic, which probably color my interpretation. You may be more objective here than I am, but I don't see the analogy with media accuracy.
Slate is known for its social liberalism, so I found it interesting that the published an article by a former police officer recently. It uses the same story from The Wire about brown bags for alcohol providing deniability for officers & drinkers both. It lamented the rise in body cameras reducing officer discretion, particularly in cases of intra-family disputes. She recounts an incident when a mother called because her son had damaged part of the house, and the author had to make clear (pointing to the camera) that she would be obligated to make an arrest if there was an allegation of a crime. The mother didn't really want her son in jail, so she got the message and refrained from (honestly) affirming what her son had done.
When I read "The Collapse of American Criminal Justice" I found it striking how favorable Stuntz was toward judicial discretion over clear & simple rules, even while he opposed discretionary police stops and the rise in power & discretion of prosecutors. Much of his concern is how the system is stacked against defendants, so while he's better than some reformers in taking seriously the costs of crime & the necessity that the system punish it, supporting the pro-defense side seemed more important to him than articulating a general philosophy of discretion vs rules.
Lots, perhaps most, laws were never intended to be enforced rigorously because in fact such enforcement would create net social harm. And most people know this implicitly.
Few want every speeder or every trespasser prosecuted. A warning is sufficient in most cases. (*Fear* of a warning is sufficient in most cases.)
Instead, the purpose of the laws is virtue signalling, on behalf of both voters and legislators.
Yes, we want a very few laws enforced as rigorously as possible (murder, rape, grand theft, for examples).
And we also want those very few speeders who are obvious and real dangers to the public, and those very few trespassers who appear to intend theft or vandalism, to be prosecuted.
But we pass and support most laws because either (a) we wish to be seen as people who would want such enforcement, or (b) we wish people would behave better and want to give them a mild incentive to do so.
Not because we really want them enforced as written.
People are taught from an early age that police are there to help them and stand up for justice; that the courts exist to defends the innocent and punish the guilty.... They are the 'good guys'. Like most religious beliefs these tend to remain unexamined. People can see in their own experience that speeding tickets are simple cash extraction, not a public safety exercise, but much like the "god of the gaps", people continue to believe in the benevolence of their overlords wherever they lack directly contradictory evidence. It is, therefore, only natural for them to assume that if given wider personal discretion, they would only use it to advance societal good in those areas.
So do you think that professors should have detailed and inflexible orders about how they assign grades?
The problem is having draconian laws and then neutering them with discretion.This leaves a club in the hands of law enforcers to club whom they don't like.
It is better to have smaller punishments meted out at every infraction.
The problem of this way of enforcing rules is:1) politicians can not start pushing for flashy punishment, because there is nothing moderating their stupid decisions.2) people would be very upset if stupid rules were enforced blindly
Discretion is the way politicians can make flashy laws without experiencing an immediate backlash (or fall prey of their own idiocy).
What in the incentive for the law enforcers to use discretion wisely for the good of society? I think near none.And this if we believe they know and want the good of society.
Actually, we had this in Italy from 2006.It is named SICVE (commonly called Tutor) - Informative System to Control Speed.
The system record only the vehicles with a mean speed higher than the allowed moving between two "gates". Then they send the owner of the vehicle a ticket.
https://www.6sicuro.it/blog...
https://www.youtube.com/wat...
Reality is you don't really want discretion in law enforcement, just sensible legislation.
Discretion is needed when blind application of the legislation would be socially damaging. But laws must be blind to be socially acceptable and useful.
With Something like SICVE you could have proportionate punishment for infractions:
1) speed up just 10% more than the limit, a small fine or small punishment
2) speed up more than 10% but less than 20%, a bigger fine or punishment
3) speed up 30% or more than the limit, burn your driving license.
Then you could have an archival story of everyone infractions and tailor the punishment to their history (first time to be more lenient and increase punishment for later infractions, but some discount by time).
Most people are law abiding! If they think cops are fundamentally honest but restricted by regulations in their effectiveness, it is entirely reasonable for them to suspect they will benefit from introducing more discretion.
The general idea is that crime is hard to define for regulatory implementation, but "I know it when I see it". No sure if this is true.
This is unrelated, but I've just seen a Twilight Zone episode based on your Great Filter theory, and was blown away :D
My poll respondents didn't on average think discretion is used well for speeding.
I'm not claiming discretion isn't used well with speeding - for the most part it is.
I'm saying typical speeding generates more social harm than typical trespassing, and I think that's accurately reflected in your poll.
More - but still very little (except for a tiny minority of violators).
Very, very few speeders get caught; far less than the police could catch if they tried at all.
That seems to indicate an appropriate use of discretion on the part of police.
--
Added:
For decades, many toll roads used printed tickets with timestamps. 100% of (average time) speeders could have been prosecuted using the timestamps.
And today that could be done even more easily using RFID transponder data (EZPass, etc.).
Yet I know of no jurisdiction anywhere that has ever done it.
Institutionalized discretion.
Seems you are claiming that speeding is an unusual case, where discretion isn't used well. Just a coincidence that it happens to the case most people know best?
I think the evidence in your post is consistent with my alternative interpretation.
Most people (including me) think they personally benefit from discretion because they believe "real" crime (violations of law that generate social harm, vs. violations that don't) is mostly committed by a small minority of "bad people", which doesn't include themselves.
So when they violate the law, they think there's rarely social harm, and that police will mostly exercise discretion "correctly" and so in their favor.
I think your speeding (1-1 on harm) vs. trespassing (3-2 on harm) results supports this.
As both a speeder and trespasser, I confess that my speeding sometimes causes social harm, but I think my trespassing never has.
I admit to having strong pre-existing views on this topic, which probably color my interpretation. You may be more objective here than I am, but I don't see the analogy with media accuracy.
Surely that's also true even if they have a representative fraction of Caucasian.
If your respondents skew Caucasian, they might believe they will tend to be favored in part due to their race.
You could have written this before you saw my post. Did none of the evidence in my post seem relevant to you?
Slate is known for its social liberalism, so I found it interesting that the published an article by a former police officer recently. It uses the same story from The Wire about brown bags for alcohol providing deniability for officers & drinkers both. It lamented the rise in body cameras reducing officer discretion, particularly in cases of intra-family disputes. She recounts an incident when a mother called because her son had damaged part of the house, and the author had to make clear (pointing to the camera) that she would be obligated to make an arrest if there was an allegation of a crime. The mother didn't really want her son in jail, so she got the message and refrained from (honestly) affirming what her son had done.
When I read "The Collapse of American Criminal Justice" I found it striking how favorable Stuntz was toward judicial discretion over clear & simple rules, even while he opposed discretionary police stops and the rise in power & discretion of prosecutors. Much of his concern is how the system is stacked against defendants, so while he's better than some reformers in taking seriously the costs of crime & the necessity that the system punish it, supporting the pro-defense side seemed more important to him than articulating a general philosophy of discretion vs rules.
I interpret the results differently.
Lots, perhaps most, laws were never intended to be enforced rigorously because in fact such enforcement would create net social harm. And most people know this implicitly.
Few want every speeder or every trespasser prosecuted. A warning is sufficient in most cases. (*Fear* of a warning is sufficient in most cases.)
Instead, the purpose of the laws is virtue signalling, on behalf of both voters and legislators.
Yes, we want a very few laws enforced as rigorously as possible (murder, rape, grand theft, for examples).
And we also want those very few speeders who are obvious and real dangers to the public, and those very few trespassers who appear to intend theft or vandalism, to be prosecuted.
But we pass and support most laws because either (a) we wish to be seen as people who would want such enforcement, or (b) we wish people would behave better and want to give them a mild incentive to do so.
Not because we really want them enforced as written.
People are taught from an early age that police are there to help them and stand up for justice; that the courts exist to defends the innocent and punish the guilty.... They are the 'good guys'. Like most religious beliefs these tend to remain unexamined. People can see in their own experience that speeding tickets are simple cash extraction, not a public safety exercise, but much like the "god of the gaps", people continue to believe in the benevolence of their overlords wherever they lack directly contradictory evidence. It is, therefore, only natural for them to assume that if given wider personal discretion, they would only use it to advance societal good in those areas.