Cities across the country are debating police discretion. Much of this debate centers on “public order” offenses. These minor offenses are unusual in that the actual sentence violators receive when convicted — usually time already served in detention — is beside the point. Rather, public order offenses are enforced prior to any conviction by subjecting accused individuals to arrest, detention, and other legal process. These “process costs” are significant; they distort plea bargaining to the point that the substantive law behind the bargained-for conviction is largely irrelevant. But the ongoing debate about police discretion has ignored the centrality of these process costs. Many scholars have argued that vague terms and broad standards in defining public order crimes result in broad discretion that leads to abuse. In this Essay, we argue instead that criminal law process costs essentially decouple statutory language from actual police behavior, rendering the debate about statutory language largely moot. Abuse is better addressed by first recognizing that, in the context of public order crimes, discretion has little to do with substantive criminal law. Instead, policymakers should focus on mitigating the harmful consequences discretion can generate and on limiting police discretion through other means. To this end, we propose providing the police with new civil enforcement tools that will be equally effective at preserving order but that will in all likelihood cause significantly less unnecessary harm.
Prescott, J. J. "Process Costs and Police Discretion." C. Gerstein, co-author. Harvard L. Rev. F. 128 (2015): 268-88.