Fewer rules, better people The case for discretion

Lam, a philosophy professor at the University of California-Riverside, debuts with an intriguing if mostly anecdotal argument "for the value of discretionary decision-making in criminal justice and organizations of scale." Unlike rules, which can result in injustices as actions and people are treated categorically and subtleties are ignored, discretion fosters moral consideration of behavior and maximizes "fairness, justice, efficiency, and effectiveness," according to the author. Marshaling examples from the criminal justice system, bureaucracies, and artificial intelligence, he criticizes rule-bound practices as rooted in legalism, or the idea of "operat under a system of policy, procedure, and law" that aims for fairness but fails to consider how decision-makers' identities change how they enforce rules. Lam proposes that organizations should be staffed with decision-makers who are trained to use their discretion, who exercise moral responsibility, and who are regulated by ethics boards. Unfortunately, his argument is weakened by a failure to satisfactorily define discretion in the first place, and to adequately consider the moral, organizational, and political ramifications involved (for instance, how exactly would a society identify someone with the wisdom or morals to exercise proper discretion?). The result is a provocative yet incomplete look at what it might take to create a fairer world. (Feb.)

A philosopher defends the place of discretion--read, bending the rules--in a legalistic world. "What do you do with a boy caught stealing food to feed his hungry family?" So asks Lam provocatively, answering with an anecdote: A police officer is called to arrest a young shoplifter trying to feed his little brother with pilfered peanut butter, bread, and milk. The officer was no Inspector Javert. Instead, he suggested that the shopkeeper put the kid to work cleaning the parking lot until the food was paid for--a Solomonic solution that flies in the face of a legal culture that increasingly demands invariable sentencing. Discretion, as Lam observes, can often thwart or lessen crime, while mandatory-arrest policies yield unintended consequences, among them a far higher death toll among women who are victims of domestic violence. This may seem counterintuitive, but Lam's point is that while rules are essential, "if the rules are good, the quality of the enforcer never matters." All too often the rules are not good, or at any rate not good enough to cover every circumstance, whence leeway is called for: "Interpretive discretion exists because laws sometimes set vague standards." This interpretive discretion makes room for prosecutors to plea bargain and judges to offer inventive alternatives to cookie-cutter punishments. Still, Lam adds, discretion needs to be attached to laws that have strong "guidance value" so that laws are not applied with "arbitrary and discriminatory enforcement," as they so often are in, say, cases where the defendant is Black and not white. Legalism isn't a failed system, Lam adds, but the laws must be good, for if they aren't, "bad laws followed blindly and enforced unquestioningly have just as much chance to destroy good governance as the mediocre leader making mediocre decisions." A convincing case for rethinking inflexibility in rulemaking in favor of discretionary checks and balances. Copyright (c) Kirkus Reviews, used with permission.