Constraining Executive Discretion

Freedom means different things to different people. But one way of understanding what it means to live in a free country is that you don’t have to worry about the government taking action against you for no good reason.

What is a good reason? One possibility is that you have not broken the law. But in the US, this is no longer an adequate reason. There are so many laws that people probably break them daily. Thus, if the government wants to get you for some other reason, they can arrest and prosecute you for breaking one of the laws that everyone breaks. This is obviously a strong reason for cutting back on the scope and number of our laws.

But under the existing system, your freedom and protection turns on the discretion and judgement of prosecutors, police officers, and other government officials. Thus, if one pisses them off – if they get mad at you for a good or bad reason – one is in danger of being prosecuted. This suggests that our system requires a mechanism for constraining discretion.

This is an enormous subject – one that I hope to return to in the future. But for now, I would like to focus on some basic issues in terms of lower level officials. Let’s start with police officers. There is a continuing controversy about whether and how much such officers should be subject to videotaping. One proposal that I endorse is to have each police officer wear a small video camera whenever they are on duty. Elaborating on this proposal, Ron Bailey writes:

In order to make sure that both the public and police realize the greatest benefits from body-worn video cameras, a number of policies need to be implemented. For example, police officers must be subject to stiff disciplinary sanctions if they fail to turn their cameras on each time they interact with the public. In addition, items obtained during an unrecorded encounter would be deemed a violation of the subject’s Fourth Amendment rights against unreasonable search and seizure and excluded as evidence, unless there were extenuating circumstances, such as a broken camera. Similarly, failure to record an incident for which a patrolman is accused of misconduct should create a presumption against that officer.

If a requirement of body-worn video camera were combined with additional safeguards, they would both provide protection to citizens who would otherwise be abused by the police as well as to police officers who would otherwise be subject to improper complaints from the public — a double benefit. Of course, one might suspect that many police officers will oppose this reform – either because they want to hide something or because people often simply don’t like being videotaped.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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  1. gabe says

    Interesting – but why not get to the crux of the issue. Stop passing stupid laws which are not generally promulgated and insist that before any prosecutorial action , intent must be demonstrated. An interesting book from a while back, if I recall the title, “Three Felonies a Day” gives one a good picture of how prosecutors abuse their discretion and are able to do so because of a plethora of “laws.”
    Re: video cameras; Some merit here, however, would we (should we) be prepared to throw out evidence in a case where a police officer simply forgets to turn on a camera due to the stress of a situation; if fired upon, do we expect the officer to first turn on his camera or reach for his weapon. If you insist upon a presumption of guilt against the officer, what will be the effect in such situations. Now one can say that such a protocol may be acceptable for routine traffic stops, minor drug busts, etc – but are they always “routine.” Cops are no saints- but they do put up with a lot of crap!! After all, they are usually not engaging with the commenters on this blog – at least I hope not!!!

  2. Rudy Hernandez says

    Restraining executive discretion would cut both ways, right? It would make it hard for police and prosecutors to let someone go who committed what might be a “one time offense”, especially if it’s on camera. Laws won’t be perfect and anticipate every situation, it might be better to give prosecutors the ability to let some of the guilty go. Mandatory sentencing laws have had some bad effects; wouldn’t clamping down on executive discretion do the same?

  3. Ron Johnson says

    While I’m all for equal treatment and controlling authority, we should also recall that better is the enemy of good. Alex deTocqueville cited the French government’s new found efficiency in enforcing its laws as the primary cause of the French Revolution.

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