Straight Line
Discretion in law-enforcement
The unusually violent happenings of August 20th to 22nd last reminds us of a highly charged scenario in which abnormal postures and actions were painfully prominent. Discreet response by the concerned parties was perhaps not expected in our predominantly reactive culture. Discerning observers say that the establishment's behaviour was not helpful while the actions of the agitators bordered on madness.
Now that the situation has sufficiently cooled down and the authority has instituted a judicial commission to look into the unfortunate incident in its entirety, it may perhaps be relevant, at least academically, to focus attention on the element of discretion in law enforcement.
Recognising that the police are custodians of the state's ultimate monopoly of legitimate coercion leads us to consider the abiding concern -- the issue of discretion. Discretion is the pivot upon which the exercise of authority revolves. However, discretion is still poorly understood.
An important task is to identify the criteria that the police employ in arriving at a decision. The issue has become one of apportioning influence on police discretion between legal and extra-legal factors. There is evidence that clearly points to the vast extent of police discretion and the influence of extra-legal considerations. The discovery of police discretion and the influence of extra-legal considerations upon it have ramifications that are much wider than legal theory and constitutional propriety.
If the police can use their extensive discretion to define crime, they can use that same discretion to concentrate attention on vulnerable sections of the population and cast them in the role of "criminals." Enforcement officers are influenced by the character and social circumstances of the violator. Those who are employed and residentially stable tend not to be arrested, whereas their unemployed and rootless counterparts are more likely to wind up in jail. Thus, instead of equality before the law, different groups receive different treatment according to wholly extra-legal considerations.
The selective exercise of discretion means that those who offend the prejudices or whose arrest serves the interests of the police are subjected to routine harassment. Often, what passes for justice is dispensed, not in the public forum of the criminal court with all its safeguards, but by officials, such as the police, on the street. Thus, for civil libertarians, the exercise of discretion is often equated with the abuse of civil liberties.
It seems at times that the exercise of police discretion is not only an intrinsic usurpation of the law, but is also discriminatory against the poor, ill-educated, young, and residents of deprived neighbourhoods, and contributes to the distortion of our understanding of crime. Often, this manifests itself across a wide range of policing activity and criminal justice procedures, and is targeted mainly at the powerless and dispossessed.
True, discretion involves considering any decision on its merits, taking all relevant factors into consideration, weighing available options, and arriving at the most appropriate conclusion. Of course, discretion can become a cloak under which prejudice and discrimination hide, but that does not make discretion itself offensive.
There is a debate as to whether delinquency and criminality are actually concentrated among certain sections of the population, or whether they arise from discriminatory practices throughout the criminal justice system. Often, the police exercise their discretion within a social context of domination and subordination. Practical police officers are rarely perplexed about which values should apply, because certain values prevail since they reflect the interest of dominant groups in society. In other words, the exercise of police discretion is intrinsically discriminatory, because it imposes dominant social values upon subordinate sections of the population.
Since the police do not simply enforce the law they do not restrict themselves to those who have violated it. The wider discretionary authority possessed by the police is used to protect prevailing interests from those sections of society that pose a threat to those interests.
As illustration, we may consider the particularly vexing issue of stop and search. Not only is this a controversial practice, it also epitomizes the exercise of police discretion and the issues associated with it. The authority given to police officers to stop people in public places, question and search them is justified in principle as a weapon in crime-fighting.
It would seem that the police exercise their discretion to keep people "in their place;" not only the young and the members of lower class but also victims and members of the public whose respectability is affirmed by the care and attention they receive from the police.
The principal interest of the police is the maintenance of their authority; for that is the principal resource that they deploy when dealing with incidents. The police do not enforce the law because they cannot. Laws must be interpreted, and that interpretation is always context-specific. Therefore, discretion is unavoidable. However, discretion is also discriminatory, since it inevitably depends on imposing the prevailing interests of dominant social groups who set the standards of applications.
The police patrol the boundaries of "respectability" and, thereby, subordinate and exclude those whose claims to full citizenship are, at least, doubtful -- youth, lower social classes, and at times minorities. It is, therefore, no surprise that most police attention is concentrated on the lower class and the youth -- particularly young men.
Muhammad Nurul Huda is a columnist of The Daily Star.
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