Whether the police themselves would admit it, they exercise a great deal of discretion in deciding who "needs" a formal sanction. This is to say the police have a lot of latitude in determining who gets arrested, who gets a ticket, who gets stopped … who goes merrily on their way.
This discretion is necessary and good, but to some it will seem arbitrary and unjust. Paradoxically, it’s all of these things.
There are functional reasons why all who transgress cannot be "formally" processed. Chief among them is a matter of resource limitations. In short, how full would the jails and courts be if everybody who technically broke a law were formally processed?
Moreover, what would that burden do to law enforcement’s ability to answer other calls, patrol more areas or be available for other service demands?
Of course, we don’t see it that way when we’re the one getting the ticket, being stopped, etc. If the random anonymous stranger is seen getting arrested, he probably "deserved it." If we’re in a fix, it’s just the cops being jerks, bigots, intolerant, unreasonable… .
The sociologist Emile Durkheim argued that crime is a necessary part of society. Crime helps to clarify moral and normative boundaries, "because these conditions of which (crime) is a part are themselves indispensable to the normal evolution of morality and law…"
Durkheim famously observed that even in a "society of saints" there would be crime. As he says, "Crimes, properly so called, will there be unknown, but faults which appear venial to the layman will create there the same scandal that the ordinary offense does in ordinary consciousness. If, then, this society has the power to judge and punish, it will define these acts as criminal and will treat them as such."
He goes on to say, "For the same reason, the perfect and upright man judges his smaller failings with a severity that the majority reserve for acts more truly in the nature of an offense."
In a piece for the New York Times, Jim Dwyer recounts the story of a young man, Joseph Griffin, who had been arrested by the NYPD for possession of approximately $5 worth of marijuana — it weighed a little less than a small paperclip. To be sure, Griffin was committing a crime, but as above, it’s not that simple.
"The plainclothes officers pulled up, and they asked me where I was going," Griffin told a New York judge. "I said, ‘Home.’ They jumped out. They was patting me down. He went into my pocket and found it. Then they put the handcuffs on."
Ever since Terry vs. Ohio, it is permissible to pat down the exterior of a suspect’s clothes to search for weapons. Most other purposes are typically off-limits. Again, he had the miniscule amount of dope — a crime — but the officers had no constitutionally permissible reason to retrieve it pursuant to a search for weapons.
This will seem like hair-splitting to those of you who are more legalistic and also to those who have not made this kind of stop dozens and dozens of times. The bigger picture here isn’t Griffin’s crime. It’s the resource burden necessary to formally process it.
As Dwyer reports, "Griffin spent the night in one jail or another, taken from the precinct station to central booking and then to the courthouse in Brooklyn. Up to that point, his case had absorbed the energy of two police officers, a desk sergeant, a clerk who processed his paperwork and fingerprints, a driver who transported him to booking, other officers to secure him in the pen awaiting his appearance, a Legal Aid Society lawyer, an assistant district attorney, a court clerk and a court reporter to transcribe the proceedings."
All of a sudden that $5 worth of pot just got a lot more expensive — for the rest of us. Even so, can we just draw fuzzy lines and expect the police to enforce only those crimes that have a positive cost/benefit ratio? Of course we can’t, unless we’re the sad schmo who happens to get caught in the net.
Apparently, the judge had a longer view. Griffin’s case was immediately dismissed.
Matthew Pate is a former law enforcement executive who holds a doctorate in criminal justice from the University of Albany and who has advised police agencies around the country. He writes from Pine Bluff, Ark. Contact him at email@example.com