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.