Wednesday, September 12, 2018

Fooling Yourselves About the Fair and Uniform Application of Rules

WaPo |  Both sides are missing a crucial dimension — one that ultimately bends in the direction of the pro-Williams camp. Just like the criminal-justice system, tennis and many other sports depend on the subjective discretion of neutral arbiters to apply a set of supposedly objective “rules.”

Ramos did indeed follow the code, and each of the three sanctions had some justification, thus satisfying the “rules” camp. But for two of the three violations (the racket smashing was unambiguous), he used his discretion to punish Williams for acts — coaching and heated exchanges with an umpire — that occur routinely in tennis but are seldom punished.

Within the criminal-justice system, the same principle of discretion also applies, with much more severe and damaging consequences on human lives than the outcome of a tennis match.

At every stage, criminal-justice officials regularly justify individual decisions based on their discretionary interpretation of a rule. When a police officer makes a “routine traffic stop” for a car that changed lanes without signaling, or decides to arrest someone found with recreational drugs, technically the decision is warranted — even if numerous other people commit the same “infractions” without any consequences. Prosecutors have tremendous discretion to decide, for example, whether to charge a child as an adult, add additional enhancements to press for a plea bargain or seek the death penalty. Judges often make discretionary sentencing decisions (recall the Stanford University swimmer case). And prison officials have almost full discretion in issuing disciplinary infractions and sending inmates to solitary confinement.

In all of these instances, one can always say, “Well, this person didn’t follow the rules,” and on an individual basis that may seem sufficient to justify the consequences. What gets lost, however, is that rules are rarely applied regularly, consistently or fairly.

Worse, in the criminal-justice area, these rules are without question applied unevenly, with overwhelming racial disparities at every stage. People of color are far more likely than their white peers to be arrested for the same behaviorcharged for the same crimesentenced to more time for the same conviction, sent to solitary confinement for the same activity and denied parole despite similar prison records.

Without diminishing Osaka’s level of play or achievement, and without excusing Williams’s behavior, the outcome of the U.S. Open may have been determined by an umpire’s discretionary decisions that were far outside the norm. Rather than fool ourselves about the universality of rules, we should question the vast and often unchallenged use of discretion in both sports and criminal justice.