Hi-Phi Nation



Police DiscretionSeason 4: Episode 2Full Episode TranscriptBarry Lam: Charles Carney lived out of a mobile home in San Diego in 1979. He was in his 50s, and was suspected by authorities of targeting young boys in the neighborhood. On May 31st, he walked up to a young Mexican boy on the street, and started talking, but it happened to catch the attention of two DEA agents in the area. Hanoian:? Agent Robert Williams of the Drug Enforcement Administration?witnessed Mr. Carney's contact with the young man, and watched Mr. Carney and the boy go into the vehicle.?He noticed the license plate on the vehicle, and recalled that he had?specific information regarding this vehicle.Barry: You’re listening to audio from oral arguments at the US Supreme Court in 1984 about Carney’s arrest.?Louis R. Hanoian is arguing for the State.?What happened was that the two DEA agents watching Carney intercepted the boy on his way out and asked him want had just happened. The boy told them that he had just been given drugs in exchange for sex with Carney. Hanoian: At that point in time, they asked the boy to come back to the motorhome with them.?The boy did that. He knocked on the door of the motor home. Mr. Carney stepped out. Agent Clem looked into the motor home, saw two bags of a greenleafy substance which was later identified to be marijuana.??Agent Clem reported what he saw to Agent Williams, who placed Mr. Carney under arrest.Barry: It's what happened next that is under contention at the Supreme Court. Carney was already arrested, and the agents had probable cause that drug and sex crimes had taken place inside of the mobile home. But could they search the mobile home without first getting a warrant? The agents didn’t consider it. Hanoian: Agent Williams then drove the van to the narcotics task force headquarters in National City, and then searched the van. In the course of the search, they found a total of about two pounds of marijuana in the refrigerator and in some cupboards in addition to the two bags that were found on the table.Barry: It turned out that the DEAs warrantless search turned up all of the evidence they could get to charge Carney with a crime. The boy who was the victim, he disappeared, most likely because he was an undocumented Mexican national not looking for any more contact with the system. They had no other specific evidence to charge Carney with sex crimes.?Homann (on behalf of Carney): The motor home was parked, the drapes were closed, it contained upholstered furniture, it contained all of the indications of a home.Barry: This case, the Carney case asked the Supreme Court to decide a super deep philosophical question. But it wasn’t about drugs, or consent, or Carney. It's the question of whether a mobile home was a house, or a car.Supreme Court Justices Questioning Hanoian:?-Is it that the vehicle had wheels, it has to be self propelled.?-Yes I would agree that.?-So you wouldn't apply your thought to a trailer parked in a-- not when it's parked, no.?-What if the vehicle is in one of these mobile home parks and hooked up to water and electricity???-What would you do with a house boat??-A house boat?Barry: You see, if you wanted to know the boundaries of American police power, you have to figure out what counts as a car.?Supreme Court Justices:?What about a camper's tent??The motorhome would be subject to search but not the tent.?Why wouldn't the tent be just as mobile as the self-propelled vehicle?Doesn't have wheels.?(Laughter)It doesn't have wheels, your honor. --But it is movable…Chau: From Slate, this is Hi-Phi Nation, philosophy in story-form. This season, crime and punishment. Recording from Vassar College, here’s your host, Barry Lam. Barry: I was surprised last year when I looked into the history of American policing and discovered that in addition to the history of slavery, segregation, urbanization, and the war on drugs, cars played just as big a role; I’d even argue that in the judicial system, it played the largest one. This is that story. Sarah:??I'm Sarah Seo. I'm an associate professor of law at Iowa law school.? My book is Policing the Open Road: How Cars Transformed American Freedom.Barry: The reason the Supreme Court in 1984 is involved in one of many pedantic arguments over the years as to what makes a car a car, is because of a ruling it made all the way back in 1925 in the early days of the automobile. That ruling, known as the Carroll ruling, stated that cars were an exception to the fourth amendment. Americans had a right that their property not be searched without a warrant, except when it came to their cars.? Sarah:? The Carroll case was huge because it completely changed the Fourth Amendment. The rule that came out of the Carroll decision was that if officers have probable cause to believe that evidence of a crime or contraband is in a car, they can stop and search the car without a warrant.?And the reason why that's huge is because instead of requiring officers to go to a judge, the officer could make the determination for him or herself. That greatly expanded the discretionary authority of police officers on the road.Barry: The Carroll ruling was in many ways the culmination of changes that were happening in law enforcement since the invention of the automobile. Prior to that, American policing was neither professionalized nor particularly powerful. There was no policeperson’s uniform, no specialized police training, not even necessarily policing vehicles. And the culture of policing centered around malum in se crimes. This latin term, mala in se, stands for things that are intrinsic wrongs, not just in political societies, but in pre-political societies as well. Things like murder, rape, kidnapping, and theft. The going theory in political philosophy, any political philosophy, is that if the state has any power and duties at all, it is the power and duty to intervene in the protection and enforcement from mala in se crimes. In contrast, there was a very weak tradition of police intervention in malum prohibitum crimes. These are crimes like gambling, prostitution, or selling knockoff goods. These are only crimes because of laws prohibiting them, they’re not intrinsic wrongs. It wasn’t just that there weren’t all that many mala prohibitum crimes, it was that the culture of law enforcement didn’t think of mala prohibitum crimes as worth the work of the armed wing of the local government. I like to think about it as figuring out what you think Batman is supposed to be doing; is he supposed to break up armed mugging in a dark alley, or go after broken tail-lights or online gambling? This “Batman test,” it's how police thought of themselves at the time.The invention of the automobile changed all of that. There was, for the first time, an explosion of mala prohibitum laws involving cars, without at first any change in the culture of law enforcement, and this led to a social crisis. Sarah: Everybody breaks traffic laws. The average law-abiding citizen, they're all violating traffic laws that were enacted to protect the public. And?they killed pedestrians, they killed children playing on the street- and so there's this confusion and quandary among municipal officials throughout the country. Why are law abiding citizens actually violating traffic laws, to everybody's detriment?Barry: The answer, that some of the smartest people in the room could come up with, was immorality. Cars in some way were turning ordinary law-abiding people into immoral monsters on the road. And of course, the solution to a moral problem is moral education.?Sarah:??President Coolidge said you know in order to cultivate a law-abiding society, people need religion. They need to believe in a God that inculcates in them a spirit of obedience and morality. Barry: I know what you’re thinking, it sounds na?ve maybe even cute. But that’s anachronistic. There was very little precedence then that a rampant social problem could, and should, be fixed through law enforcement and criminal penalties. That's precisely what was being invented during this period in response to the car. And one of the inventors was Coolidge’s successor Herbert Hoover. Sarah: Hoover on the other hand said we need a separate government agency that focuses on enforcement.?and it was in the particular context of traffic where American society realized appealing to morality or religion would not get people to obey traffic laws. Police would need to be depended on.?Barry: But you needed the police to cooperate. And unlike Hoover, the most prominent police leader of the era wasn’t too keen on the idea. Sarah: Well, August Vollmer was the police chief of Berkeley California from 1905 to 1932. and not just that, he's considered the father of modern policing in the United States. His interest was to professionalize the police.?In his mind, professional police- all they did was to fight crime, like theft, solve murders. They didn't deal with traffic and with prohibition or prostitution.Barry (to Sara Seo): But that sort of lost out, Coolidge sort of lost out, Vollmer sort of lost out.?Sarah: Vollmer lost out in terms of the rationale for professionalizing the police. But he ultimately got what he wanted-- he wanted police who were full time, on the job, they got a salary and pension.?10:00?They got uniforms to distinguish themselves as professionals, they got patrol cars. He got the accoutrements of professional police, but not for the reasons he wanted. He got all of those things because the police needed to enforce traffic. Municipal governments had to hire more and more traffic officers. And they found out that the traffic fines that they were generating could be used to support the entire police department, and they actually used that to hire more traffic enforcers. And then they realized that at the same time that police officers could be checking for safety violations, they could also check to see if there was liquor in the car.Barry: The two ingredients that would appear, again and again, in the next hundred years, that combine to create an ever increasing reliance on police power, were cars and prohibited substances. Paradigmatic mala prohibitum, or regulatory crimes, not mala in se crimes. That was the context that lead to Carroll.?Sarah:?So Carroll is the story of a bootlegger, a well-known bootlegger. One day the prohibition agents were driving?between Grand Rapids and Detroit, and they thought they noticed a Carroll's flashy Oldsmobile roadster. They decide to stop Carroll. They were about to let Carroll and his accomplice go, until one of the agents hit something really hard in the seat upholstery. They tear open the upholstery and they find bottles of liquor. And this case gets appealed all the way to the US Supreme Court.Barry: Given the laws at the time, Carroll had a point. The argument was that the police do not have the right to treat cars, the rightful property of citizens, as something they can just stop, shoot at, search, impound, or seize at their will any more than they could do that with a home, books, or person. In fact, the government was a conservative one, filled with lawyers sympathetic to private property rights.?The Solicitor General, James Beck, arguing for the government in Carroll, was just such a sympathizer. Sarah: What Beck decides to do is to say, Carroll is actually right about the law. The government can't stop and search his car without a warrant. Now, the practical problem with that is that cars can disappear and there's no time to get a warrant. Cars changed everything, cars changed American society, and therefore this law that's been established for a long time has to change.Barry: It's pretty remarkable actually. Here was a conservative Solicitor General, of a conservative administration, arguing for the Supreme Court to change a law from the bench. And not just any law, a constitutional amendment.?Barry (to Sara Seo): The other premise in this argument is prohibition. That was a constitutional amendment, right, and so therefore in the process of enforcing one amendment, they were arguing that you had to change another one.??Sarah: Yeah. And there were even some legal commentators basically saying that the Prohibition Amendment basically repeals the Fourth Amendment. Because without violating the Fourth Amendment, they couldn't really enforce prohibition.Barry (to Seo): I mean, the fascinating thing is that we still have prohibition, just of different substances today.Sarah: Exactly, drugs. We have a prohibition on drugs.(Music)Homann: The central purpose of the Fourth amendment..B: Back to Carney, Thomas Homann arguing on behalf of Carney.Homann: Is to protect reasonable expectations of privacy. The vehicle is stopped, the vehicle is used for sleeping.?Honoian: There's nothing in the record to suggest Mr. Carney was using this as his home--?Barry: Louis Hanoian for the state.Hanoian: There is no way to determine, in this particular class of vehicles, when they are or are not being utilized as a home.Barry: By a ruling of 6-3, the Supreme Court determines that a mobile home is a car, and therefore subject to police discretionary searches without a warrant. Justice Stevens: Is that bag stapled together? Lawyer: No it's notJustice Stevens: Would it make any difference in your argument?Barry: Ross versus US 1982. If a police officer has probable cause to search a car without a warrant, they’re allowed to search any closed or sealed containers inside of the car. Like a paper bag, even if it is stapled. Justice Stevens: The right to search the entire car would include the right to invade the passenger's privacy interest in her own purse.Barry: Wyoming versus Houghton, 1999: 6-3. If the police have reason to search a car, they have license to search anybody who is inside of the car as well, even if they have no reason to think that other person has committed any crime. Think about that next time you get into a ride share.?Sarah: As American society becomes a car society, the police are making arguments to expand their powers by tethering it to how dangerous traffic stops are. And they usually win those arguments. But those arguments are used not just in the context of cars, but in the context of entire policing that they do.?Lawyer: It's not a constitutional violation for a police officers to be a jerk.?Barry: Atwater versus Lago Vista 2001. 5-4. Seizing a person and jailing them for not wearing a seatbelt is not unreasonable under the Fourth amendment. Police can arrest and jail people for even the most minor of traffic violations. But it's not all bad news. What if the car is parked inside of a house?Justice Sotomayor: Whether in a garage, or the motorcycle parked inside the living room...Barry: Collins versus Virginia was decided in 2018. The justices were forced to say that it's clearly in a home, and so you need a warrant. And since not everyone has a garage, on the driveway counts as part of the home also. But if it's on the street, officer probable cause is enough.As knit-picky and hair splitting as it's been, the jurisprudence over the last 100 years about police power over automobiles generated the following norms of policing:?Number 1: Social problems that have to do with danger could and should be solved by criminalization and law enforcement.?Number 2: Those very laws and regulations could be turned into a way of collecting money to fund the very police that enforce the laws. Number 3:?The more laws you have, the more you needed a specially trained police force to learn and enforce those laws, and thus you have professionalization. Number 4:?Traffic law enforcement could be used as a pretext for the enforcement of other laws, in particular laws against prohibited substances. But the most important norm that emerged out of traffic enforcement was police discretion. Sarah: And so by the end of the 20th century, we have a Fourth Amendment that allows for a great deal of discretion in policing. Del Pozo: We actually structure entire police departments to privilege the enforcement of certain laws over others.Voice Too much discretion can pervert law and pervert policingBarry: Coming up, the political morality of police discretion.?Chau: Hi-Phi nation will return after these messages.Barry: How does a Chief of Police decide to get a PhD in philosophy?Del Pozo: Well I mean because the antecedent question is how does a philosophy major decide to go into policing.Barry: Okay, so is that the right question?`Del Pozo: Yeah that is...Barry: Brandon del Pozo is a 23 year veteran police officer, first with NYPD, then as chief of police of Burlington Vermont. He’s also a PhD in philosophy, he just defended his thesis on the political philosophy of policing, with some fascinating chapters on the use of police discretion. Del Pozo: Most of the low-level offenses that police enforce have no inherent moral content, unless there's a specific context to them. Like simply smoking some marijuana, ingesting cocaine, or drinking alcohol, marching in the street and blocking traffic, we can go on the litany-- you're running a stop sign...Barry: Or traffic?Del Pozo: Yeah traffic's a lot of traffic law. It's not it's it's not malum in se. It's wrong because there's a law against it. But the whole point of that law is to promote the type of cooperation that allows the community to flourish and sometimes be safe too.Barry: Police discretion refers to the power of the police to decide whether, and how, to enforce malum prohibitum crimes in a given context.?If there's a violation of a traffic law, does a cop stop or let a person go? Give them a ticket, or just a warning? Go through with a search or make an arrest-- or just let it go, even if they have probable cause. Police do not have discretion for all laws. They do not, and ought not, have discretion for malum in se crimes. Those crimes that pass the batman test.Police have a duty to intervene, investigate, and prosecute individuals for those. But this isn't unique to police in our society. It's true of police in any society. And if you think about it, might actually be true of all people in society. These crimes are just the egregious moral wrongs that we all have an obligation to refrain from doing.? And stop others from committing when we can do it safely.??One interesting assumption that Del Pozo disabused me of is the assumption that the police have a monopoly on violence. It's not true. We’re allowed to intervene, even use violence, to save a child from being beaten, tackle someone who just robbed your mother, or chase down someone who just stole your car.?It might be stupid, but its neither immoral nor illegal. Police only differ from citizens for malum in se crimes in that they’re required to enforce them. But for Malum prohibita crime, police always have a choice, not just because there are too many of these laws that it's impossible to enforce all of them. It's because the goal of these laws is to solve nonmoral problems, like how do you get everyone to drive on one side of the road, or go through an intersection without crashing. These are laws trying to get people to cooperate and coordinate when they’re in a public space.?When a police officer encounters someone who violates one of these crimes against cooperation, enforcing the law means using force to make people cooperate. Del Pozo thinks police should always have an option not to use that force if they can get the cooperation in a better way.?Del Pozo: I think it's important in a liberal democracy that we have police discretion, because we'd rather broker than enforce the terms of cooperation in our society. Barry: Brokering here means negotiating, bargaining, diplomacy. Enforcement means tickets, arrests, jail cells. And when you enforce cooperation, number one it's punitive, and number two there's always a worry that you're gonna squash pluralism or chill people's desire to pursue a particular conception of the good. When you broker it, you're really fostering the ideas of fairness and reciprocity. And part of brokering is the thought that it's not only going to be a one-way brokerage the whole time. That there are times where other uses of space will prevail. And I think that's what you want to foster in a democracy. And police discretion, when it's done well, has a hand in that right.Barry: Police discretion is about choice, and when there is a choice, there’s got to be a way to evaluate whether people have made a good or bad choice, a just or unjust choice. Del Pozo’s thinking draws heavily on John Rawls, whose Theory of Justice might very well be the most influential text in American political philosophy of the 20th?century. Rawlsianism is known for its spirited formulation of what justice requires under liberalism or a liberal democracy. But Rawls doesn’t’t talk much about policing. Del Pozo fills in those gaps.?Barry (to Del Pozo):?So the starting point is liberal democracy. Talk a little bit about what that means for people who aren't you know yeah in the philosophical doldrums.?Del Pozo: Liberal doesn't mean like liberal versus conservative.???It really is about--? number one so like?just?take the idea of democracy and bracket it off. We got these representative bodies that we elect, we have control over whether they're in office or not that elections are basically fair.?The liberalism part is just this idea that there's like a real inherent tension in people's life plans, conceptions of the goods. This one guy might be a Buddhist, one guy a Muslim, one guy a Jew, a Christian-- different views about whether it's certain institutions should be public or private.?There's enough heterogeneity that you don't make presumptions about what ought to prevail.Barry: So you don't mean the opposite of a police state, liberal democracy. You mean a liberal democracy that is diverse.?Del Pozo: Not just diverse in a way where the government is like how do we reign in this diversity in, but there's a commitment to the diverse to the pluralism. to me liberalism and pluralism are like closely related.Barry (Narration): The two commitments, that malum prohibitum crimes are not intrinsic wrongs, and therefore it’s okay to enforce them selectively, and the commitment to a liberal democracy, together generate a test for Del Pozo as to how an officer, how an entire police department, ought to exercise their discretion. It's called the test of public reason. In effect-- is a particular exercise of discretion consistent with the interests of a liberal democracy? Does it advance pluralism, and does it treat members of the pluralistic society as free and equal? No policy that fails the test should be acted on, even if it is part of the law.Barry (to Del Pozo): The?Philadelphia Starbucks case is a kind of test case for you. Describe what you saw in that case.Del Pozo:?The police got a call from the manager of the Starbucks that there were two men in the in the Starbucks who were trespassing.?Barry: These were two black men.?Del Pozo: They were sitting there and not buying anything. And there's a policy at the Starbucks there that you need to be a paying customer to use the seats. There's also a law in Philadelphia that if a manager revokes your permission to be there you're trespassing. I mean that's clear. and I think that's a that's a fine law. The?cops try to bargain, they negotiate, they explain, the guy's like we're not leaving. We're not buying anything but we're not leaving. And the cop said well we have a trespass law, we're enforcing it. They arrest them.?Barry: It started Starbucks on a sensitivity training...Del Pozo: Yeah, soul searching for the juggernaut.?Barry: This is a test case for you.?Yeah and what you think ought to be the response when suitably informed by the relevant like political philosophy is different. So I want you to talk through how you think the right response should be.Del Pozo: The reason can't just be?here's a statute and someone's making a statement and they’re a manager and you violate the statute I'm arresting you. I mean I think that's exactly why people were so angry. Because that facially meets the standards of the law. But it defies public reason.??That that was a reason- you have violated the trespass law we're hauling you out of the Starbucks in handcuffs-is the reason that does not treat those two men as equals in America. Because Rittenhouse Square is a wealthy neighborhood, and I guarantee you if there was a man or woman who lived in a condo or co-op or apartment and Rittenhouse Square, and they were down there, white wealthy person under the same circumstances, they would not have had the trespass laws invoked against them. Barry (Narration): For Del Pozo, it fails Rawl’s test of public reason when police discretionary decisions apply differently to different social groups. Del Pozo: I don't think that the use of government coercion in the Starbucks case was justified by a reason that treat those men as equals. And I think that's what enraged America. They didn't exactly articulate it in Rawlsian terms, but that's what that's what upset everyone.Barry (to Del Pozo): Well I think, look, this is why I found this part of the dissertation fascinating-- it's the law and I enforce it, as a justification given by the police officer, is not enough justification for you.?Del Pozo: No, considering that we definitely build discretion into laws, I think it's not enough justification, I think we have to show the state interest. What is the state?interest in that trespass law? and even more so when it when it clearly does so in a way that that it reinforces the idea that those two black men were not equals to other citizens who would never have had the police called on them. It's?not in the best interest of the liberal democracy, period. Barry: Other examples of public reasons tests we might be familiar with: first amendment free speech protections pass the test; they appeal to government neutrality on matters of religion and political ideology. Burqa bans like they have in France, or requirements that all slaughterhouses be Kosher-- both of these fail public reasons test, because they appeal to considerations that don’t treat individuals of certain other religions as equals. Del Pozo is arguing that we should be applying Public Reasons tests to police discretion; from how entire departments use their discretion to how individual decisions of officers do it on the open road. The tests we currently use are the ones handed down to us by the Supreme Court. They couldn't be farther apart. In 1993, two black men, Michael Whren and James Brown, were in a Nissan pathfinder at a stop sign in a neighborhood in DC. They caught the eye of a plainclothes Vice squad in an unmarked police vehicle. It was a high drug crime neighborhood, but the squad didn’t have probable cause that the men were dealing or in possession of drugs. But they did watch them long enough to get them on traffic violations. Supreme Court Justice Scalia: The truck had turned without signaling and had driven off in what the officers considered an unreasonable rate of speed. But as the officers stepped up to the driver's side window, they immediately observed two large plastic bags of what appeared to be crack cocaine inside the truck.Barry: That’s Justice Scalia reading the unanimous decision in this case, the infamous Whren decision. Supreme Court Justice Scalia: Petitioners were arrested, and were convicted of various federal narcotics offenses.?Barry:?Whren and Brown were sentenced to 14 years for their possession of crack cocaine. Supreme Court Justice Scalia: Their argument here is that the drug evidence should not have been admitted at trial, because the Vice squad officers asserted ground for approaching the vehicle—namely to give warnings about traffic violations-- was simply a pretext for investigating unfounded suspicions of drug dealing activities. Barry: The facts of Whren were quite unremarkable, lots of black men experience being pulled over on some traffic pretext. What was remarkable was it gave the defense a fighting chance against racial profiling. In a typical case, it's hard to prove the officer made a traffic stop because of a person’s race. But in this case, it was a Vice squad, it was plain-clothed officers in an unmarked car. Those kinds of cops don’t stop people for speeding or turning without a signal, which is what they claimed their probable cause was. The evidence seemed quite overwhelming that they stopped the men because they were black in an area of town that had high drug trading. That’s what a Vice squad does. The question before the court was what is the right test to determine that a particular discretionary use of a traffic stop is unreasonable. Does being motivated by racial profiling, if that can be proven, make a stop unreasonable from the point of view of the Fourth Amendment?James A. Feldman: The historic role of the Fourth amendment has been not to stand in the way of society enforcing laws that are on the books and are perfectly valid laws.Barry: James A. Feldman, arguing for the state.James A. Feldman:??In our view that conclusion follows regardless of the subjective motivations of the officers who made the stop. But what we're really talking about is the whole of police work-- police officers are always faced with a choice of what laws they should enforce and what actions they should take.Supreme Court Justice: Well then are you saying that there's no such thing as a pre-textual stop that's offensive to the Fourth Amendment??James A Feldman: Yes I think I am saying that.?Barry: The unanimous decision affirmed in Whren is that there is no way to misuse police discretion as long as there was a perfectly valid law an officer was enforcing. It doesn’t matter that the officers own subjective motivation was racial profiling, or any other number of pretexts that had nothing to do with the traffic violation. An officer might be motivated completely nefariously; they use their discretion to follow their enemy, wait for them to commit an unsafe lane change, or fail to stop at a stop sign limit line. And then use their discretion to arrest them, which they’re allowed to do from the Atwater decision. The existence of an enforceable law is enough to give cover for any matter of motivation for any officer to use the law for a stop.Many legal scholars have contended that Whren gives constitutional cover for racial profiling in policing precisely because traffic laws are so numerous and so easily enforceable. If the Justices were right in their ruling, it shows just how much US constitutional tests for permissible police discretion depart from a public reasons test.Barry [to Del Pozo]: So talk to talk me through how you would reason about cases like profiling based on statistical likelihood of more crime being in that neighborhood, amongst members of this race, that particular block. Even in the case of individuals right. So an individual you might not have individualized suspicion that they are committing crime now but we know their history and so on and so forth. How would you think about those- cuz you talk about them specifically.Del Pozo: Yeah so racial profiling. If you're talking about public reason is a complete non-starter. Because nobody would say I'm an equal citizen when I can when I can have suspicions cast on me for something that has nothing to do in and of itself with crime and this beyond my control. That means that like imposing a coercive measure on you, a car stop or a pedestrian stop, based on number one, this thing that's beyond your control, and number two this thing that does not instrumental to criminal suspicion- is it fails public reason period I mean just on its face.Barry: Even though the argument is yeah, but, look, statistically this that and the other?Del Pozo: There's a lot of instances in which we do things like fight the war on terrorism, or fight the war on drugs, or crime, where we say well we know that like we're gonna be imposing criminal suspicion on innocent people. But there's a system that'll get him out of it at the right time, they'll get found not guilty of the charges or whatever. But doing this delivers the best results. That's utilitarianism right. What matters are the numbers. The central goal of Rawls in disguise is to defeat utilitarianism. Numbers count but the idea of a liberal democracy is that they don't always count- that rights and fairness count and pluralism counts.?Barry [to Del Pozo]: It sounds like you are arguing that the civil and moral duty of an officer is not to the laws as such but to like liberal society generally. Is that what you're saying??Del Pozo: Yeah I'm saying this has always been part of policing and we need to acknowledge it, we need to give it the right set of political justifications. Police departments make a lot of decisions about how they allocate resources to enforce- the size of your Vice unit, the size of your Narcotics Unit, the size of your quality of life unit, what incentives you give people to work hard in those units. Those are all things that produce outcomes in American policing that change the way laws are enforced right. If I have a huge narcotics unit with a lot of overtime and a clear path to promotion out of that unit if you perform well, we're going to be enforcing a lot of narcotics law right? So just to say like- it's the law we enforce it is just it's never that never happens in American policing. We don't just robotically like walk around and look for violations of statute and then put handcuffs on. We actually structure entire police departments to privilege or emphasize the enforcement certain laws over others. So then to say that once we've done that we don't in turn make distinctions about which laws to enforce when we're out there in the street just strikes me as incongruous.Barry: After I spoke with Del Pozo, this point he’s making just seems so obvious now. The police are not morally and politically neutral executors of laws, even in a democracy. Every act of policing of mala prohibitum crimes is a decision to advance or undermine a particular political philosophy. Enforcing a democratically?determined law of segregation is not neutral, it's an act of advancing an apartheid state. Deciding not to enforce immigration law is not neutral, it's an act of advancing an anti-nationalist state. The way Del Pozo sees it, the legitimacy of policing, the justice of police practices, comes from its role in advancing a substantively just society. He’s a Rawlsian, he thinks that society is a liberal democracy. Others might argue that it's a libertarian state with minimal government. Still others might argue that a just society is a homogenous Christian, or Muslim, or Jewish theocracy. But I’m not a political relativist, I think some types of states are better, more substantively just than others. What I think is just police conduct is going to come from what I think constitutes a morally just society. The same has gotta hold for the police, who have to make decisions about how to use their discretion justly.Barry [to Del Pozo]: In your philosophy of policing, are you asking individual beat officers beat cops to make substantive judgments about say the morality of particular laws- not the malum in se one, but things like drug legalization or marijuana…?Del Pozo: I think that not only is the answer completely yes but I think they've always been doing it. I think it's only in the war on crime of recent history that they've done it less. Have I thrown joints and crack pipes down sewers yeah I have. And I didn't de-facto legalize crack and marijuana but I just said it was not in the interest of justice to pursue those charges.?Barry: The Supreme Court’s test for police discretion in Whren makes almost every discretionary enforcement of crime okay. The public reasons test, on the other hand, makes discretionary enforcement of these crimes close to a last resort, and it makes many enforcements of these crimes on historically unequal and disrespected populations substantively unjust. Del Pozo’s Rawlsian norms of police discretion are built to advance the liberal side of liberal democracy. But what about the democratic side? Isn’t it just undemocratic for police to unilaterally decide against enforcing laws that pass the will of a democratic majority? The answer is yes. Del Pozo: I came to believe that it's really important for the police to protect people from the tyranny of the majority, and it's important to protect people from virulent strains of populism. I think a lot of how we do or we don't enforce immigration law is about that. I also think you don't want the police to be the means by which a narrow conception of good is ruthlessly enforced through the persnickety application of strict laws. Democracy is a process. It's not a perfect process and it has imperfections. One of its imperfections is if 51% of people vote for a candidate, that person's in office. If 51% of legislators vote for something it becomes the law. If 5 out of 9 judges make a decision, it becomes the decision. Between populism and majoritarianism, there are ways in which laws get made and people get put into power that like really really have an affect on citizen's rights and the quality of their lived experiencing. In so far as the police have discretion over laws, in so far as they make decisions about law and order and quality of life, they have the role of making sure that pluralism and diversity and basic rights obtain, no matter what a populist movement wants, no matter what 51% of the people want.Barry: Brandon del Pozo, PhD, was the Chief of Police of Burlington Vermont. He is now a Post doctoral researcher at the Miriam Hospital and Brown University, and pursuing philosophy and criminal justice policy work full time. Sarah Seo's work is "Policing the Open Road: How Cars Transformed American Freedom." It's fantastic. You can find the link to both of their work on our website, at Hi-. This episode and the entire series is made possible by the Whiting Foundation Fellowship for Public Engagement.Special thanks to Carrie Figdor, Scott Evoy, Aerys Bat (1) Eileen Chow (1) Liz Weeks (1) , Kermit Cole (1), and Jonathan Guerette (1) whose Patronage have made this episode and this seasonOther Patrons., Mark Robinson, Megan Gerry, Nathan Tauger, Rick Grush, Before we get started, I want to thank the Whiting Foundation, whose Public Engagement Fellowship has made this season possible. And to Allison O Holleran and Scott Evoy, whose ongoing patronage has made every season of Hi-Phi Nation possible. Stay tuned after the end credits for a sneak preview of our Slate Plus bonus episode with Sarah Lustbader. Get this and every bonus episode this season where I and a special guest talk more long form about the issues that each episode raises. Just join Slate Plus at hiphiplus, or click the link in the show notes. ................
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