Process Costs and Police Discretion

Harvard Law Review Forum, Vol. 128, pp. 268-88 (April 2015)

21 Pages Posted: 2 Jan 2015 Last revised: 14 Apr 2015

See all articles by Charlie Gerstein

Charlie Gerstein

Civil Rights Corps; Georgetown University Law Center

J.J. Prescott

University of Michigan Law School

Date Written: April 2015


Cities across the country are debating police discretion. Much of this debate centers on “public order” offenses. These minor offenses are unusual in that the actual sentence violators receive when convicted — usually time already served in detention — is beside the point. Rather, public order offenses are enforced prior to any conviction by subjecting accused individuals to arrest, detention, and other legal process. These “process costs” are significant; they distort plea bargaining to the point that the substantive law behind the bargained-for conviction is largely irrelevant. But the ongoing debate about police discretion has ignored the centrality of these process costs. Many scholars have argued that vague terms and broad standards in defining public order crimes result in broad discretion that leads to abuse. In this Essay, we argue instead that criminal law process costs essentially decouple statutory language from actual police behavior, rendering the debate about statutory language largely moot. Abuse is better addressed by first recognizing that, in the context of public order crimes, discretion has little to do with substantive criminal law. Instead, policymakers should focus on mitigating the harmful consequences discretion can generate and on limiting police discretion through other means. To this end, we propose providing the police with new civil enforcement tools that will be equally effective at preserving order but that will in all likelihood cause significantly less unnecessary harm.

Keywords: policing, discretion, misdemeanors, public order

JEL Classification: K14, K4, K42

Suggested Citation

Gerstein, Charlie and Prescott, J.J., Process Costs and Police Discretion (April 2015). Harvard Law Review Forum, Vol. 128, pp. 268-88 (April 2015), Available at SSRN: or

Charlie Gerstein

Civil Rights Corps ( email )

1601 Connecticut Ave NW
Suite 800
Washington, DC 20009
United States

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

J.J. Prescott (Contact Author)

University of Michigan Law School ( email )

3170 South Hall
701 S. State St.
Ann Arbor, MI 48109
United States
734-763-2326 (Phone)

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