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August 15, 2003

The Value of Discretion

Jacob Sullum of Reason Magazine takes up the cause of judicial sentencing, making a good, if preliminary, argument for leaving more discretion in the hands of judges. Sullum is absolutely correct in his basic argument. Even though the basic details of a crime may be identical, the specific circumstances surrounding the crime may differ enough that a judge is perfectly justified in setting down widely disparate sentences. I'd argue that goes well beyond the scope of judges, however.

Although our government is reasonably small relative to most European governments, most Americans still must wade through a thick muck of bureaucrats to negotiate many aspects of their lives. From getting a driver's license to opening a small business, government is becoming a near-constant presence in American's lives. This would be bad enough under any circumstances, but it is made far worse by the ever-growing ledger of rules under which those bureaucratic agencies attempt to govern. The Federal Register, a listing of federal government rules, is growing at an appalling rate, expanding the regulations under which we live at the rate of literally hundreds of pages a day. Even the most dedicated citizen cannot possibly keep up with the changes and additions. Worse, even the bureaucrats can’t. Try calling an IRS help line during tax season. You’ll be talking to a temporary employee hired just to man the phone. Any advice you get from the help line isn’t even valid; the IRS can audit you for doing precisely what the person on the help line told you to do.

Part of the problem comes from a combination of government overreach and Congressional abdication, but I’ll leave those for another day. The other problem is that we don’t trust anyone with discretion anymore, so rules are made more and more complex in an attempt to guarantee equal treatment for all. Though arguably a noble goal, life is far too complex for any set of rules to reasonably address all possibilities. How can a rulebook ensure that a family of immigrants from Vietnam receives identical treatment as a family from Cuba, or a family of native-born Americans? Each group will bring unique circumstances, experiences and weaknesses to the table. Trying to develop a set of rules that ensures they are all treated the same will provide one of two results: a rulebook so large no human being is capable of understanding it, or a bureaucrat paralyzed because his text doesn’t tell him how to properly treat a transgendered couple from Azerbaijan.

Instead of trying to develop terabytes of rules that nobody will ever possibly be ever to read, it’s time to try a return to discretion. To illustrate why this is superior, I’ll take an example from my own work. In the Army, whenever we issue an operations order (OPORD), the most important paragraph is the commander’s intent. This paragraph is a brief explanation of what the commander wants to do in the operation. If soldiers know nothing else, they’re expected to understand the commander’s intent. Knowing this means that, in the absence of orders, the soldiers can determine on their own how best to fulfill the intent and accomplish the mission. On June 6, 1944, this principle was severely tested, as thousands of American paratroopers from the 82d and 101st Airborne Divisions plummeted into Normandy. Dropped in the dark from planes traveling too fast and often miles off-target, the soldiers hit the ground alone or in small groups. Often without leadership, the paratroopers nonetheless determined where they were and where they needed to go and set off in the night. Throughout the night, German columns and outposts were struck by American paratroops acting in small groups. There was no plan to do this. Yet these attacks were a major force multiplier for the invading forces, as the Germans had to respond to dozens of small actions throughout Normandy, tying up troops that could have accomplished far more defending the beaches. Individual initiative and understanding of the mission and intent allowed the paratroopers to accomplish their missions despite landing in circumstances none of the planners had envisioned. Had they been required to simply obey orders and execute their missions in accordance with the plan, the missions would have been far less successful. While there is a marked difference in consequences, the end results are similar in our bureaucracy.

Instead, we need to eliminate 2000-page books of rules, and start giving public servants more discretion in their tasks. Tell them the end result you’re looking for, and you’ll be amazed how they get there. There is higher risk of fraud and misuse in such a system, and there should be checks built into the system to prevent or eliminate as much fraud as possible. But the gains in unleashing people’s ingenuity will far exceed the losses in fraud and favoritism, as long as reasonable control measures are emplaced. By challenging public servants to use their brains, rather than to act as automatons, we’ll be taking advantage of one of the most valuable assets we have: individual creativity. It’s simply ludicrous to expect some central board to try and determine the best way to respond to a practically infinite number of possible circumstances. By ensuring that people know what is expected of them, and counting on them to find solutions, we’re far more likely to end up with reasonable, effective solutions to the problems faced by our government. The workers would be happier, the customers would be happier, and we might even save a little money.

Of course, we could save a lot more by drastically trimming government intrusion into the private sector, but that’s a topic for another day.