Police Discretion

Is a mobile home a home or a car? Is a car parked inside a home part of the home? The answer to these stoner philosophical questions determine the scope of police power. Over the last 100 years, the Supreme Court has presided over the expansion of police discretionary powers to stop, search, and arrest people through litigation over automobiles. This week, we look at the stories of those decisions, including Carroll, Ross, and Whren, We then turn to the political morality of police discretion, and why John Rawl's test of public reason places far more constraints on law enforcement than the Supreme Court ever would. We investigate the consequence of public reasons tests for targeted policing, racial profiling, and consider whether police should have the power to overrule democratically elected criminal laws. Guest voices include Sarah Seo, Brandon Del Pozo, and archival audio from SCOTUS.

In Slate Plus, Sarah Lustbader and Barry talk about how to implement public reasons test for policing, and how the existing system has judges and prosecutors presume that arrest is the default rightful response to lawbreaking, rather than being a default wrongful response for malum prohibitum crimes. To get the full bonus episode, sign up for Slate Plus at slate.com/hiphiplus/

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