Tuesday, May 1, 2007

Why Prosecutorial Discretion Still Matters in a Democracy

Posted by Alan Childress

575472_canoes_for_rentFrom the Idaho news site magicvalley.com [and HT to Arbitrary and Capricious] is the story, "Canoeists who pulled suicide victim to shore ticketed -- Man says deputy could have used some discretion in issuing citations for having no life jackets."  Quotes the news report:

"The body was right there," said Bohrn, 58, of Twin Falls. "A girl deputy was trying to console everybody. Then a sergeant walked up. He said, 'I see you don't have any life jackets so I am going to give you a citation'. It seemed a little cold."

But surely Bohrn could appeal to the good judgment of the deputy's supervisor?  Uhhmmm, no: 

The sheriff stands by his deputy's conduct. "(Not carrying life vests) is against the law and the deputy is doing his job," said Twin Falls County Sheriff Wayne Tousley. "Just because somebody helps you in one incident doesn't mean you can't take care of the other incident. Is it wrong? No, it's not wrong. Could it have been done at another time?  He had a discretion."

The key word there is "discretion."  [I am reminded of the point made by Inigo Montoya to Vizzini in The Princess Bride: "You keep using that word.  I do not think it means, what you think it means."]  Actually, to be more precise, the "deputy cited them twice for not carrying life vests in either canoe."  Each citation is $85.Thho

Discretion matters.  It is a police officer's lesson sort of learned by Sgt. Nicholas Angel of the London police force service (far right) in the new and funny movie Hot Fuzz.  But as is amply illustrated by recent events in North Carolina, D.C., Seattle, and Phoenix, there has to be some residual of discretion, too, in a prosecutor's office.  Real discretion, not the kind of pretend discretion that would mail Bohrn his unflinching tickets the next day.

Bohrn's identity of the solution, like the sheriff's--patience?--is a bit more formalistic than mine:

"Maybe you get kind of cold in that job," Bohrn said. "I think there is a time and a place. They should use common sense. Maybe his superiors could tell him, 'Next time, wait until they get to the dock and the girls aren't crying.' "

Or not ticket them?  See Jerome Skolnick's landmark law-and-society book Justice Without Trial:  Law Enforcement in Democratic Society.


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This is exactly why I can't stand the uber-cop mentality. An uber-cop will not exercise his/her discretion in cases like this. The Idaho deputy who issued that ticket did so just because he could.

We expect cops to have intelligence and training, that is why we give them a certain amount of discretion in certain situations.

On the other hand, the cannoeist who received the ticket (the "perp") seemed like an over-emotional doofus. According to the story, the perp was crying and wringing his hands and being very Pelosi-like. The perp was actually receiving grief counseling from one of the other deputies on the scene. This behavior was probably an affectation by the perp to (i) demonstrate that real men cry; or (ii) to distract the deputies from the fact that there were no life vests around.

In the end, I probably would have issued the perp a ticket just for being a weenie.

Posted by: Pubert | May 2, 2007 6:27:01 AM

Prosecutorial discretion is still alive in Idaho: the county prosecutor has dropped the charges.


Posted by: Skelly | May 3, 2007 7:45:38 PM

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