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Living with discretionary justice

The subject of my last column was Ashland City Ordinance No. 3176, which will restore to police the ability to compel people whom they wish to cite for a violation to provide their name and date of birth. I maintained that those who were distressed by the proposal misconstrued both the ordinance itself and its intent. Their leading misconception is that it will give the police a new tool to harass traditionally marginalized persons. I don’t see how. The ordinance doesn’t authorize the police to stop anyone they want and demand an ID. It only gives them the authority to demand a name and birthdate once they’ve decided to ticket a person.

The inescapable fact is that police discretion to single out blacks, street people, etc. already exists. It exists when they decide whom to cite for legal infractions. My impression is that the Ashland police are much fairer than many police departments in this regard, but it is proper to be concerned about abuse of discretion in law enforcement. It just so happens that such a concern is misplaced in regard to Ordinance No. 3176.

Discretion is part of our justice system. Police have it. Prosecutors have it. Judges have it. And they abuse it. We’re all aware that race makes an enormous difference in the outcomes of law enforcement. Less recognized is that wealth and social position make even more. The most glaring manifestation of that reality is our death row population. Those without the capital get the punishment. Among several reasons, the death penalty should be declared unconstitutional for violating the Fifth Amendment guarantee of equal justice before the law.

What can be done about discretionary justice? I once thought that we could eliminate it, at least at one stage of the process, by enacting mandatory sentences. My reasoning was sound. Theoretically, the law should be judging acts, not persons, so there should be a single appropriate penalty affixed to each illegal act. Practically, judges would no longer be able to impose on poor people of color, say, much stiffer penalties for the same crime than on wealthy white people. And I believed that if everyone was in the same boat, law-and-order obsessed legislatures would stop upping the penalties.

I was wrong. To a significant extent, mandatory sentencing did get instituted at both the state and federal levels. Its intended equity was often subverted by the broad discretion prosecutors have to choose which charges to bring. Worse, the public mood was so punitive that penalties remained extremely harsh. For example, teenagers were being given life sentences, and under “three strikes and you’re out” so were people who committed a few nonviolent offenses. Removing discretion in sentencing has proved a dreadful failure. By analogy, the only way to remove discretion from the Ashland police is to require them to cite every legal infraction every time, and believe me, you won’t like that.

We must live with discretionary justice, but not with its gross abuse. How? The primary need is for the power structure of a community to signal to law enforcement that it wants fairness. Police especially, but also prosecutors and trial judges, care more about order than about law, and the order they uphold is the order of the establishment. If the establishment fails to mandate fairness, there must be organized protest and, in extremis, massive disruption of order like the Stonewall riots until the establishment understands that without justice it will not have peace.

Rothschild Jr