Discretion and Discrimination

- by Madeleine McGlade

An important aspect of law enforcement in American society is the discretionary authority of police officers. The issue of racial profiling related to stop and frisk strategies highlights how subjective judgments can facilitate discriminatory legal practices.

The discretionary powers of police is an important theme of the book Cops, Teachers and Counsellors. Maynard-Moody and Musheno indicate that “procedures and laws” can be put into play to enforce judgments about citizens in “face-to-face encounters” (p. 93). These judgments are often derived from hierarchical social relations related to “race and class” (p. 8). The authors point to the “destructive” practice of “racial and ethnic profiling in police officers’ decisions” (p. 4). In contemporary American society, appearance, particularly skin color, “provides workers with quick composites for getting a fix on people encountered on the street” (p. 53). This highlights the problematic nature of discretionary legal authority, and how societal divisions and discriminatory values can seep into law enforcement.

Zimring sheds light on the detrimental repercussions of police discretionary power. He examines how ‘preventative policing’ tactics of the NYPD in the 1990s intended to “take control of potentially threatening situations by street stops of suspicious looking persons” by frisking after weapons/contraband and arresting for minor offenses (p. 118). Zimring asserts, “using a predicate offence as justification for selective enforcement” can become the “moral equivalent of racial profiling” (p. 119). Zimring points to the “punitive impact of the policy on dark-skinned persons on the streets of low income neighborhoods” (p. 119). Stop and frisk for minor offense arrests led to disproportionate involvement of racial minorities in the criminal justice system, with African Americans being arrested 7 times the rate of non-Hispanic whites. This demonstrates how stop and frisk tactics facilitate flexibility in police judgments and are thus open to discriminatory practices.

In the article Growing Up Policed in the Age of Aggressive Policing Strategies, the authors indicate that policing techniques of the 1990s rendered “vast amounts of people vulnerable to the criminal justice system”(p. 1334). Justifications for stops can include “nearly all minimal indications of criminal activity” such as living in high-crime areas and perceived suspicious behavior. The article discusses how the 1968 Terry v. Ohio ruling enabled police to stop and frisk without a warrant or “probable cause” if they have “reasonable suspicion” of criminal behavior (p. 1333). The term ‘reasonable suspicion’ exemplifies the discretionary authority bestowed to police officers. The authors assert, this decision “laid the groundwork for the legalization of racially biased policing” (p. 1335). Although officers may not be intentionally biased, structural discrimination can persist such as “patrolling differently in high-crime neighborhoods” which can “place a disparate burden on minorities” (p. 1147). This elucidates the inequality of surveillance. Some individuals and communities are disproportionately affected by police surveillance, reinforcing embedded societal power dynamics, such as inequalities of class and race. As highlighted by Musheno, it is frequently those on the lower rungs of society who are subjected to the harshest forms of surveillance.

The 2009 shooting of Oscar Grant by BART Police officer in Oakland epitomizes how discriminatory policing persists. Judge Mrgui at the appeals court stated that when "Pirone (the lead officer) encountered a group of black men" at Fruitvale Station, they “posed no threat that would justify his pulling a weapon and holding them” (SF Gate). While highlighting the issue of racial profiling, this case simultaneously points to the question of the legitimacy of public law enforcement. Footage of the shooting captured on bystanders phones went viral and sparked months of protests in and around Oakland. The legitimacy of law enforcement hinges upon the extent of perceived coercive and discriminatory behavior. The police actions in this case underline how aggressive tactics can subvert law enforcement legitimacy and perpetuate racial inequality.

Bibliography

Maynard-Moody, S & Musheno, M 2003, Cops, teachers, counselors: stories from the front lines of public service, Ann Arbor: University of Michigan Press.

Stoudt, B, Fine, M & Fox, M 2012, ‘Growing up policed in the age of aggressive policing’, New York Law School Law Review, vol. 56, pp. 1331-1370.

Zimring, F 2012, ‘Policing in New York City’, in The city that became safe, Oxford University Press, pp. 100-150.

Bob Egelko, 2013, ‘Blame in Oscar Grant BART Death May Shift’, SF Gate, 7 August,

http://www.sfgate.com/bayarea/article/Blame-in-Oscar-Grant-BART-death-may-shift-4713100.php