Rules, Discretion, and Privilege

I’m often wary of personal stories that illustrate an idea too perfectly, but here we go.

I was in a small local grocer purchasing tonic water, which elicited a comment from a White middle-aged man about the importance of never running out of tonic when there is gin to drink, followed quickly by an unsolicited story of his drinking and driving, only to get pulled over by a police officer and be told to “Go straight home, I don’t want to see this car on the road the rest of the night.” This prompted innocent confusion on the part of the young Black cashier, who asked

“Wait, were you drunk?”

“Oh yeah, I was completely hammered”

That’s it, that’s the whole story. The young woman was flabbergasted that an officer would pull over a clearly drunk driver and let them off the hook. I doubt she was unaware of the concept of White Privilege, but rather I suspect she was shocked to find it extended to something as socially stigmatized as drunk driving. She rang up my bill, her face frozen in a “Really?” that for all I know she is still wearing to this day.

The optimal balance of unbending rule adherence/enforcement versus pure discretion in judgement/enforcement will always be an open debate at the level of macro institutions and the day-to-day micro decisions of the agents presiding over our lives. Rather than further adjudicate how much discretion is optimal, I ask that you only grant me that the median voter in nearly every context demands that discretion remains > 0.

In the context of law enforcement, what I would like to contend is that we have chosen the wrong kind of discretion. Or, perhaps more precisely, the emphasized discretion in the wrong direction. With rare exception, our rules dictate overly-harsh punishments, and it is in the agents of enforcements that we have both imbued, and burdened, the power of discretionary lenience. The officer can let you off with a warning or record a speed below a key punishment threshold, the judge can sentence you to probation instead of jail time or suspend your sentence entirely. We are, many of us, comfortable with this construct because at some level we have faith in the humanity, the sympathy, of the enforcer.

This construct has consequences. Most obviously, it means the system will be harsher on groups of people with whom the enforcing agents have less sympathy, in whom they see less in of themselves (or their children). Showing how ticket speeds “bunch” on different sides of a punishment threshold for white and black drivers, Goncalves and Mello neatly show officer discrimination, not in the form of targeting black drivers with additional cruelty, but rather in excluding them from the relief afforded White drivers from a harsh system of rules.

This is an important distinction. In a system with gentle rules, the burden is placed upon the discretionary agent to ensure punishment is sufficient to the transgression. They have to bear the burden of what happens to the punished; they have to be the villain in that person’s story. When the rules are cruel and the system allows for sympathetic lenience, they get to be that person’s hero. Even for those humans with whom officers have less sympathy, it will still be easier for guilt averse officers to fail to be someone’s hero than opt to be their villain. Perhaps most importantly, it displaces accountability for punishment outcomes from the discretionary agent to the system as a whole. Few will ever be fired or shunned for failing to intervene on behalf of a transgressor, but those who opt to dispense additional punishment may be asked to defend their choice. If you want accountability, strictness has to be someone’s choice.

How did we end up with a variety of brutal punishments that we count on discretionary agents to protect us from? I can imagine a variety of origin stories. When Nixon sold White Southern voters on “Law and Order” it was by design a promise to lock away the Black men that White southerners were terrified of. White southerners had every reason to believe they, and more importantly their sons, would be protected from draconian drug laws by, what were then, almost exclusively White officers and judges. I also don’t think we should underestimate how the median American views the prospect of being arrested as something that happens to other people. Strict punishments are exactly what criminals deserve. In the unlikely event you interact with the system, the professionals in the system will quickly see their error or, at worse, will see you as someone who doesn’t deserve to be punished harshly. Discretion will save you.

Lastly, harsh punishments and discretionary lenience allows observers from the privileged group off the psychological hook with a simple bit of reasoning: “They broke the rules, that’s the punishment according to the rules. They made their choice.” But is that the line of reasoning you follow when you interact with an officer?

When you see red and blue flashing lights in your rearview, what runs through your mind? Do you plan your story– the job interview you’re rushing to, the bathroom emergency you’re in the midst of? Do you prime your system for the Stanislavskian production of tears? Or do you get out your license and registration, put them in your left hand, roll down your window, and place both hands squarely at the top of the steering wheel hoping desperately not to spook the officer you expect will unbutton their sidearm as soon as they see the color of your skin?

A post script

When racial discrimination and White privilege are levied as explanations of social phenomena, even though the two are, for all intents and purposes, outcome equivalent, I often can’t help but think that the wrong rhetorical option is chosen. If and when employers discriminate against Black job applicants, this privileges White applicants, but those White applicants don’t actually observe the discrimination first hand. To frame this as an example of White privilege is to tell them they don’t deserve the job they’ve worked hard to acquire– their resistance to the explanation maybe shouldn’t be so surprising. Discrimination, not privilege, is the easier rhetorical sell because you are telling them a story about something negative that happened to someone else that they had no direct part in– they don’t have to be the villain in the story, they simply have to accept the evidence put before them and sympathize with those being harmed.

Conversely, stories of positive discrimination, such as the criminal justice system extending greater lenience to White citizens, are precisely examples of privilege. No one should feel unjustly villainized simply because they are receiving additional benefits when they did in fact break the rules. Furthermore, the policy goal to be pursued here is not to eliminate the privilege of lenience enjoyed by one group, but to extend that lenience to everybody else.

When framed as such – that negative discrimination is something to be eliminated, while positive privilege is something to be expanded, it becomes easier to persuade people because you’re never asking them to give something up or confess to a transgression they don’t recall committing. You’re letting everyone remain a hero in the story they tell themselves everyday.

Unless, of course, they’re just racist and want to use the government and market institutions we live within to cause as much harm as possible to others. There’s no rhetorical fix for that; they’re going to fight the rest of us every step of the way no matter how much evidence is found or how it is presented. But then again, they don’t really matter in this story, do they? They’re just inframarginal obstacles in our quest to persuade the median voter to accept the evidence of positive and negative discrimination, and work together to make the world just a little better, one policy at a time.

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