The Washington Post questions yesterday's Supreme Court decision upholding the ability of a police officer to stop cars he considers suspicious. Although the Post agrees that the search in question should be legal, they're concerned that the Court's guidance on when a stop should be considered legal or illegal is too vague and may lead to many illegal stops. Yet there isn't really much else the Court can do. The officer stopped the car based on a combination of factors: driving right at the Border Patrol's shift change time, driving a vehicle known to be popular among drug smugglers (i.e., profiling), children waving to him in what he considered an odd manner, etc. How can the Court quantify something like that? If there are five suspicious factors, you can stop the car, four or less means the stop's illegal? Vehicle profiling is legal, but ethnic profiling is not? There are literally hundreds of possible factors that a police officer must consider when deciding whether or not to make a stop, and there's no way to put together a list of acceptable factors to cover every eventuality.
There is a role for discretion in law enforcement, both for the police and for judges. And that discretion will be abused from time to time. Police officers will conduct illegal stops and searches. Judges will let felons off with warnings. It's incredibly frustrating to watch. But the alternative is worse. Mandatory sentencing laws give us prisons overcrowded with thousands of criminals who pose little risk to anyone. Gun shy cops choose not to stop anyone, rather than risk becoming the subject of a criminal probe for picking up someone of the favored color or gender.
There are no easy answers for this. The best we can do is do what we can to ensure we select police and judges with some concern for their ability to make these sorts of decisions well. None of them will get every question right, but a screening and training process that addresses the question of how to make the decisions is the best means we have to ensure the majority of those discretionary decisions are made correctly.