In Barry Lam’s Fewer Rules, Better People: The Case for Discretion, a significant portion of his exploration into rules versus discretion is illustrated through the lens of sports and law enforcement. This discussion particularly delves into his insights on law enforcement practices.
Lam distinguishes between two types of discretion utilized in law enforcement: selective discretion, which pertains to the choice of whether to enforce a law in a specific instance, and interpretive discretion, which involves deciding how a law applies in a given context. His research, conducted through interviews with police officers and district attorneys, sheds light on the application of these discretionary practices.
One illustrative case of selective discretion occurs in the economically challenged neighborhood of Oniontown, New York. Here, a young teenager named Joey is apprehended by a store owner for stealing basic food items. Upon the police’s arrival, they discover that Joey, along with his younger brother, had been without food for several days. Moved by his circumstances, the officers attempt to negotiate a resolution with the store owner, who initially insists on pressing charges. However, the officers creatively frame a solution that allows Joey to repay his theft through community service, such as cleaning the parking lot and stocking shelves. Ultimately, the shop owner agrees to this arrangement, and later reports the following:
“I’m sorry,” the owner said. “It’s just hard when you’re working so hard and someone steals from you. I want you to know that kid did such a good job that I gave him another loaf of bread and another half a gallon of milk. I made a bargain with him. I told him to come back each week. We would find something for him to do if he needed food. I’m not giving the kid cigarettes. I’m not giving him beer.”
Officer Mike remarked, “Joey went to work every week, cleaning the parking lot, washing the windows, and stacking milk crates. In return, he received bread, peanut butter, milk, and other groceries—enough to keep his family fed.”
“He probably got paid two or three dollars an hour, which isn’t much, comparatively speaking, but he didn’t get arrested,” Mike added with a sense of pride.
Lam points out that this form of selective discretion could potentially clash with various child labor laws and minimum wage regulations. He muses:
“Hypothetically, some overly zealous lawyer could file a complaint against the store owner for ‘exploiting’ a hungry child.”
He further observes, “If such a complaint were made, it would hardly embody good citizenship. One could only hope that the relevant bureaucratic authorities would exercise the wisdom to overlook such complaints. Otherwise, the fear of legal repercussions might prevent store owners from allowing shoplifters to make amends through labor, leading to a more punitive environment that ultimately harms everyone involved. If authorities were to curtail these kinds of arrangements due to a lack of discretion, it would reflect a flaw in the bureaucratic system, not a virtue.”
According to Officers Mike and Dave, the appreciation of selective discretion comes with experience. Mike notes:
“Younger officers often want to arrest first and ask questions later. The manual says you arrest when someone does something wrong, but it doesn’t advocate for finding constructive solutions.”
Dave adds, “When you’re new, you’re still learning the ropes. You haven’t encountered many situations, so you stick strictly to the book. But with time, you realize there are often better ways to guide someone toward the right path.”
On the other hand, interpretive discretion arises when laws are ambiguous. Crafting regulations that encompass every possible scenario with pinpoint accuracy is practically impossible. For example, traffic laws often have defined speed limits, but not all traffic safety rules are so straightforward:
“Take the basic speed law, common in nearly every state: it states that no one may drive faster than is safe for the current road conditions. If the speed limit is fifty-five but you’re driving that speed during a blizzard, you could still be ticketed for violating the law. Determining what constitutes ‘safe’ driving is often a subjective judgment.”
Lam asserts that almost all laws invite varying interpretations, making the exercise of both selective and interpretive discretion an unavoidable reality. Consequently, law enforcement must navigate how to interpret the scope of any given statute:
“If a police department adopts a policy of interpreting vague laws to classify as many actions as criminal, that is as political as the opposite stance—interpreting the same laws to exclude as many actions as possible.”
To cling rigidly to legalism is not only impractical but also hinders critical discussions about the necessary discretion inherent in law enforcement, often masquerading as mere adherence to the rule:
“There’s no greater misrepresentation by a cop or prosecutor seeking to justify a controversial or unpopular decision than claiming they were merely ‘following the law.’ The reality is that no one in law enforcement simply follows the law when that law requires discretion. Every officer and prosecutor must choose which laws to enforce and which interpretations to follow or ignore.”
This raises an essential question: how should decisions be made in the enforcement and application of laws? Stay tuned as I delve into Lam’s perspectives on this critical issue in the next installment.
