I think the legal theory is that for many minor crimes, the individual officer has personal discretion to decide if they give a fine or just a warning.
You don't want every jaywalker dragged into jail "on principle".
It's probably true in most countries that if the cop likes you, you can get away with much more than if they don't. But this brazen selling of "freebies" does seem uniquely american.
Excellent point. Let's look at how "police discretion" works for what's basically a non-crime like jaywalking. In 2019, the NYPD issued 397 tickets for illegal or unsafe road crossing. 354 (90%) were issued to black or hispanic walkers. Black and hispanics are about 55% of the population.
But the story doesn't end there. The police in NYC are divided into 77 "precincts." Just 3 of those 77 divisions issued 40% of the tickets. Those precincts are predominant black and hispanic areas (Claremont Village, South Bronx, High Bridge). Meanwhile, 37 precincts didn't issue even a single jaywalking ticket all year.
If police officers used their personal discretion in some sort of consistent or even completely random way, it'd be fine, but clearly it is enforced in a terribly uneven way, even consciously or unconsciously.
Because the police force would spend approximately 100% of its time writing jaywalking citations and courts would spend approximately 100% of its time dealing with the administration of jaywalking offenses.
I think a charitable way to think about it is that jaywalking can sometime be a serious threat to public safety but most of the time its harmless. So we have a law against jaywalking in general but in practice its more like a law against jaywalking that causes a breach of public safety. But the latter condition is hard/impossible to really codify so in practice the best way to deal with it is just make a law against jaywalking and then make the second condition discretionary on the part of law enforcement. It is of course abused frequently (police may be much more likely to hassle minorities or people who "look suspect") but I'm not sure the alternatives would be better on net
My opinion is that a law that should not be enforced uniformly should then not be a law at all.
Agree that jaywalking can be a threat to public safety. The law, as written, should account for that. "A pedestrian shall not cross a public road outside of a crosswalk intended for pedestrians, unless it is safe to do so." Yes, there's then a bit of wiggle room where a cop and jaywalker can disagree on what is and is not safe. But at least that's something you can argue in court, and the cop needs to argue why it wasn't safe, while the pedestrian needs to argue why it was.
As it is now, if you get a jaywalking ticket, you probably got one not because you were doing something unsafe, but because a cop didn't like how you looked; no cop is going to waste their time on a jaywalking ticket unless they have an axe to grind. But what is this pedestrian to do? Go in front of a judge and say, "Your honor, I know jaywalking is illegal, but everyone does it, I was doing it completely safely, and I think this cop has it in for me"? Right, like that'd work.
I jaywalk all the time and think it's mad that we have laws written strictly against it, even though I know those laws are rarely enforced. For me it doesn't matter; I'm financially comfortable enough that if, against all odds, I got a jaywalking ticket, I'd just pay it and move on. There are many people, some who might be more likely to be targeted by police, for whom that kind of fine would be a financial burden. Not to mention that taking time off work to go to court for it would be impossible.
Imagine you are a legislator. If know that laws will not be completely enforced then it gives you the freedom to create laws that are bad or overly harsh because that harshness is rarely seen. Whereas if you know the police will enforce these laws against you and your family you will be much less likely to support them.
To be fair no law is completely enforced. Even if there is no discretion on the part of law enforcement, they still have limited resources and have to prioritize enforcement in certain areas.
I do take your point though. It is easy for legislators to pass laws against all manner of things because they know that the police won't be patrolling their neighborhoods enforcing them.
You don't want every jaywalker dragged into jail "on principle".
It's probably true in most countries that if the cop likes you, you can get away with much more than if they don't. But this brazen selling of "freebies" does seem uniquely american.