What change do you want to see in the world? Maybe you want marijuana to be legal. Or you want to curtail police brutality. Or perhaps you want to reduce the racial disparity in prisons.
One way to effect these changes is to get the law amended on paper. To do that, you’ll need a bill, a committee, a vote, and a signature — not to mention time and toil. In 2012, candidates and interest groups spent nearly $4 billion influencing congressional elections. And that’s only at the federal level.
What a waste of time and money.
The focus on legislation belies how justice — particularly criminal justice — actually works. Codified law is one small cog in a giant machine. Discretionary application of statutes, regulations, and judicial opinions determines so much more than written words. Even within the legal system, individual choice and action rule the day.
You see, the written law barely matters. It’s just words on a page. If you want to change something in society, focus on influencing the cogs that matter. Here are four of them:
A law means nothing if it’s not enforced. Police departments have limited resources. They must prioritize. In practice, they enforce some laws with an iron fist, and they completely ignore others. Hopefully, they pay more attention to dead bodies than to doobies. But often their incentives are just the opposite.
Police officers need “reasonable suspicion” to stop you and “probable cause” to arrest you, both of which are very low standards. Yet, even if there is probable cause to make an arrest, an officer does not have to act on it.
Discretion allows traffic cops, for example, to issue a warning instead of a citation. And nobody (except maybe dairy farmers) wants cops arresting restaurateurs for not serving margarine just because thelegislature says margarine is mandatory. Theoretically, officers are able to examine a situation and forego using the arrest power unless absolutely necessary.
If exercised diligently, discretion enables police to improve relationships with communities. As University of Wisconsin Law School professor emeritus Herman Goldstein observed in 1963,
Police officials too often fail to recognize that there are many in the communities which they serve who have an inherent distaste for authority — and especially police authority.… It behooves law enforcement officials to refrain from unnecessarily creating a situation which annoys such individuals.
The limited exceptions to discretion demonstrate its importance. For example, some states mandate an arrest for domestic violence calls. The complicated nature of such situations often leads to dual arrests, which leaves children without their parents. Mandatory arrests disempower victims by revoking choice. In general, they promote an overreliance on criminal problem-solving strategies by precluding other means of conflict resolution.
By the way, police officers don’t actually need to know the law. The Supreme Court’s 2014 ruling in Heien v. North Carolina confirmed that when stopping or arresting someone, officers are allowed to make “reasonable” mistakes about the law. For better or worse, the law on the streets amounts to what an officer reasonably believes it is, not what it actually is on paper.
After making an arrest, police have further discretion. They can release you. They can refer your case to a district attorney. Sometimes they can refer your case to a city attorney to prosecute it as a civil ordinance violation. That means no criminal record and no threat of jail time — just a fine.
2. District attorneys
District attorneys don’t do anything until the police send the accused their way. Without a referral, a DA probably won’t even know anything happened. Even when the police do refer a case, the DA often tosses it out.
DAs have full discretion over which “perps” to prosecute and which to completely ignore. They also have discretionary power over what charge to bring against the accused. A DA can legally charge any version of an offense for which probable cause exists — from an aggravated felony to a minor misdemeanor.
The charging decision depends on multiple factors. First, resource restraints require DAs to make conscious decisions about what cases are economically worth pursuing. Second, political pressure forces elected DAs to be “tough” on certain crimes — which means being lenient on others. Third, a particular DA may have a moral or ethical reason for forgoing charges.