Legality–
The Dick Cheney Factor:
Why 99 People Can Speed, But Only You Get a Ticket

By Cindy Ellen Hill

Photo: Margaret Michniewicz

Cindy Ellen Hill

Last month, Vice President Dick Cheney managed to unintentionally shoot and badly wound his upland bird-hunting partner. Yet while nearly every state has a law declaring the discharge of a firearm in the direction of another person to be a crime, ranging from aggravated assault with a deadly weapon down to reckless endangerment, it is doubtful that the Vice President will be charged with a crime. This is because, contrary to popular expression, ‘the law’ is not really ‘the law’; the law is a set of parameters applied to various situations through the exercise of discretion. In other words, the law is what the people determine it to be.

Discretion – the exercise of choice – exists at every level of the criminal justice system. Discretion starts with citizens. If we hear our neighbors arguing, do we call the police? Do we call at the sound of raised voices, or when we hear breaking glass, or only when heavy furniture crashes through the wall? Citizen discretion skews the criminal justice system from its base: in apartment buildings with thin walls people tend to call the police more often. Consequently the police show up more often for incidents involving the poor than the rich.

In some instances, legislatures have sought to remove citizen discretion. For example, doctors, teachers, and social workers are required to report suspected incidents of child abuse. And in most states, medical personnel are mandated to report suspected gun shot injuries. Yet even with this legal mandate, people exercise internal discretion: Did I really know it was a ‘shot’? If the man’s skin was just grazed and welted from being stung by pellets, do I have to consider it a ‘shooting’?

Again, human biases come into play. If a drunk black kid of 18 came into the emergency room with a bullet-grazed thigh, a doctor’s reaction may well be different than when a 78-year-old attorney arrives peppered with shot fired from an extremely expensive bird gun. Both people were injured by projectiles discharged from a firearm, but one ‘feels like’ a ‘crime’ where the other ‘feels like’ an ‘accident’.

When law enforcement officers arrive – as the Sheriff’s office did in the Cheney shooting – they, too, have discretion. They assess a situation and choose who to talk or not talk to, who to bring to the station for further questioning, and ultimately who to present or not present to the prosecutor for criminal charges. There is rarely any obligation on the part of law enforcement to present charges against any individual. This is why on any given afternoon on I-89 when everyone is driving 80 miles per hour, I might be the only one pulled over and ticketed for speeding. Then again, I might get pulled over, but then let off with a warning.

Law enforcement discretion encompasses many things. Some are institutional: quotas for speeding tickets balanced against having to appear in court if the ticket is protested; or financial incentives to a department which gets to keep the booty of drug forfeitures. Most are personal: contrary to Hollywood robotic cop images, intuition and people skills play a large role in law enforcement. Is that domestic dispute just a little spat between young newlyweds that got loud, or is someone about to wind up dead? Was the shooting of a fellow hunter a forgivable accident that occurred despite the individual taking every precaution, or was it an act of reckless endangerment with a firearm, for which the individual should be charged, so as to prevent a repeat performance? “Discretion” naturally includes human assessments such as, Will I lose my job if I present the prosecutor with charges against this businessman, mayor, or Vice President of the United States?

At the next step, prosecutorial discretion determines whether someone gets charged, and if so, with what crime. Once charged, the prosecutor also has discretion to resolve a case for lower charges (referred to as plea bargaining) or, if the defendant takes the matter to trial, to increase the charges right up to the minute that the jury goes out for deliberation – a tactic often employed to discourage defendants from exercising their right to trial.

At trial, the determination of which facts are true and which witnesses are believable rests purely in the discretion of the members of the jury. However, what the jury hears in order to make that determination rests in the discretion of the judge; the rules of evidence give the judge broad latitude to decide which evidence and areas of testimony the jury will hear. Many witnesses are sent to the witness box with a list of strict orders: you can’t mention what occurred before or after the incident, you can’t make characterizations about other witnesses or the defendant, you can’t talk about what the woman was wearing or what the man said about insurance. It’s no wonder that many witnesses at trial look like they are lying as they attempt to speak naturally and truthfully without violating the constraints put on their testimony.

If the jury makes its declaration of guilt, sentencing falls within the purview of the judge’s discretion; even in jurisdictions with strict sentencing guidelines, the judge has discretion about which categories of guidelines to apply.

Discretion at every level of the criminal justice system cuts in many ways. On the one hand, it means that all the people involved exercise their humanity and weigh individual factors, which can result in a sense of fairness and equity in any given case (or, such as in the recent case of sentencing a sex offender in a Vermont district court, a sense of outrage by a media and public who were not informed about all of the individual factors involved and reacted accordingly). On the other hand, discretion also results in a criminal justice system highly skewed along lines of race, ethnicity, and income. Cocaine use at an Ivy League frat party doesn’t ‘feel’ like a crime to many people, and thus is rarely charged; cocaine use at a poor, ethnic neighborhood social club ‘feels’ like a crime to many people, and thus more frequently results in law enforcement raids and charges.

Imagine a new federal policy that ties federal highway money to state and local agencies agreeing to 100 percent traffic law enforcement, so that every speeder and person who changes lanes without a signal must be pulled over, charged, and prosecuted. Given the number of traffic fatalities per year, such a policy might seem a logical public protection measure, even with the astronomical cost for new officers and traffic courts. There could be positive results negating the social bias of discretion – individual motor vehicle operators would no longer be picked out of the rush hour crowd for ‘driving while black.’ But when I’m late to pick up my daughter from school and doing 30 in a 25, I know I’d be longing for the days of discretion and the hope of a friendly warning from a local law enforcement officer who is not bound by unavoidable federal mandates.

Cindy Ellen Hill is the author of Creative Lawyering: A Handbook for Practice in the Twenty First Century