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Pitfalls of discretionary conduct

Judicial officers have some leeway in how they act. In most cases that's fine, but it can also lead to abuses, such as ethnic profiling. It is easy to forget that these are not isolated decisions, but are also part of a framework of formal policies. Professor Maartje van der Woude calls for more comprehensive research on the decision-making processes for these kinds of discretionary powers. Inaugural lecture 16 December.

Judicial authorities have a degree of freedom in using their own judgement when carrying out their duties. These 'discretionary powers' are needed, but they can in practice mean that the formal regulations are not always followed to the letter. In other words, the law in action can differ from the law in the books. 'This room for manoeuvre is what keeps our judicial system both fair and efficient,' says Maartje van der Woude, Professor of Sociology of Law. ‘Not every conceivable situation can be contained in rules, so a degree of flexibility is needed. It's a good thing, for example, that judges can take some account of a suspect's personal circumstances when imposing penalties, although this does mean that two identical crimes may receive quite different sanctions.'  

Dynamic traffic checks

But there are times when it goes wrong. Earlier this year, for example, the issue of ethnic profiling cropped up.  The Dutch police are thought to have structurally apprehended dark-skinned people more often than their white-skinned counterparts, based on stereotypical ideas. Both the National Police Force and the Royal Military Establishment were investigated this year on the grounds of possible abuse of their powers. The National Police, for example, were reputed to have been more interested in detecting such offences as possession of drugs than in checking compliance with traffic laws - which is what the checks were intended for. 

Norms of behaviour

‘Improper use of discretionary powers by police officers can have a major impact on how the public experience the legitimacy of these powers,' says Van der Woude. ‘You can see that in the United States, for example, where the relationship between the police and the Afro-American community in particular has been seriously impacted following a number of shooting incidents where the victims were dark-skinned individuals. This kind of behaviour can also encourage ordinary citizens to ignore the norms of proper behaviour.' 


Van der Woude believes that the debate on this issue in the Netherlands is still conducted on 'incomplete grounds'. Important societal themes such as security - that to some extent determine police conduct and (ultimately) ethnic profiling - are often regarded as cases of 'for' or 'against', and people tend to rush to conclusions based on these incidents. But these themes are much more complex than that. ‘What's needed are facts, knowledge and an understanding of the subtleties of these issues. That's why looking for constructive solutions for possible misuse of these discretionary powers has so far proven to be a laborious exercise.' 

Comprehensive approach needed

In her inaugural lecture Van der Woude calls for a more comprehensive approach to discretionary powers.  There is too much focus on the conduct of the judicial officer, while his or her powers are often only one element in a complex series of national and sometimes even international policy and judicial decisions. It is important to look at the interaction between different players within the legal system, and not only at the output 'in the field'. Van der Woude holds the view that sociology of law can look at policy and legislation 'with the proper distance, an objective view and empirical research methods', and so can be an important discussion partner for politicians, policy makers and implementing bodies.   


In the near future Van der Woude will be carrying out research on crimmigration, cross-border mobility and criminality within the borders of Europe. Choices are constantly being made about who to check and who to let pass; these decisions have important cosequences for society. 'In today's society, migration flows are an everyday reality. Terror threats and cross-border criminality mean that we have to look carefully at these movements, but without treating all those people with a migrant background as if they were suspects. To make a proper job of that, we need good research. I want more insight in the complex dilemma in which governments, organisations and citizens find themselves.' A VIDI grant from NWO and a seeding grant from the LDE Centre for Safety and Security means that she will be able to study this issue further in the coming years.  

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