Law Enforcement Discrimination
The issue of discrimination has been addressed in the six core international human rights conventions, and even drawn up into laws and regulations.
Discrimination is an act, practice or policy that treats a person or group of people differently and unjustly because of their religion or belief, race, skin color, language, gender, political choice, social status or other segregationist categories.
Discrimination can arise from hegemonic power in law enforcement institutions that see a person or group of people use their hierarchal rank and authority to make a person or group of people privileged and/or not touched by the law.
The issue of discrimination has been addressed in the six core international human rights conventions, and even drawn up into laws and regulations. However, discriminatory traditions, policies, ideas, practices and laws still occur in many countries, including in countries where cases of law violations have been reported to be generally low. Among the discriminatory practices is discriminatory treatment in law enforcement.
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The most recent law enforcement-related case that is widely known to public is the stalled detention of Putri Candrawathi (PC), the wife of Insp. Gen. Ferdy Sambo (FS), the perpetrator of a premeditated murder. She has yet to be arrested even though she has already named a suspect for her alleged part in violating the law article on premeditated murder with a maximum penalty of death.
The provided argument is that PC still has a child aged 1.5 years. The public, of course, cannot accept the argument because there are too many examples of women being detained under similar circumstances for violating articles with even lighter threats of punishment.
Therefore, law enforcement officers should not act in a discriminatory manner by allowing PC to remain at large, but immediately detain her for the sake of impartiality and objectivity of legal process.
Being just or unjust is not simply about the judge’s final decision at courtroom. It is also related to the whole procedure in managing the case, from investigation, examination, prosecution and trial up to the implementation of criminal punishment. Therefore, law enforcement officers should not act in a discriminatory manner by allowing PC to remain at large, but immediately detain her for the sake of impartiality and objectivity of legal process.
‘White’s justice’
Police are the most difficult criminal-law enforcement officers to predict due to the many variables that can influence their work in enforcing the law.
The decision as to whether or not the police will detain someone who is suspected of committing a crime may rest on the following elements (including non-legal formality): (a) the race of the suspect, (b) the seriousness nature of the crime, (c) the availability of evidence on the crime spot, (d) the motive of the complainant in filing the criminal case, (e) the social relationship between the suspect and the complainant/victim, and (f) in what way the police come into managing the case in question.
Based on Donald Black's analysis (1993), what has led to PC’s suspended arrest is FS’ hegemonic-power factor that holds hostage the law enforcement authorities. They are being held back from detaining her.
Being unchecked, partial treatment by law enforcers may continue to the next process, whether in prosecution or in court proceedings, because discriminatory practices in law enforcement have become a common phenomenon.
A case of someone of low social status offending another from higher social status will be dealt with immediately.
Black's research (1993) in the United States shows that the judge's decision (court) can be directly proportional to social status, or, as he puts it, that law varies directly with social status. A case of someone of low social status offending another from higher social status will be dealt with immediately.
If a black person is tried for murdering a white citizen, the risk of being sentenced to death is great. Such a risk in Ohio, according Black’s reports, was 15 percent higher compared to murder cases between black citizens. In Georgia, it was above 30 percent; in Florida, 40 percent; and in Texas, nearly 90 percent. This phenomenon provoked the coinage of the term “white's justice”.
Court trial (thus) becomes not only an arena for judicial process, but also a struggle of humanity and even ideology as described by Black in his following arguments:
“Law varies directly with rank.” People with high status have more power in laws than those with low status. “The relationship between law and differentiation is curvilinear.” People who have more disparities in social strata have an increasing number of laws liable to implicate them.
This phenomenon can also be seen vice versa. “The relationship between law and relational distance is curvilinear.” The law may not implicate people who have close relationships with law enforcers. “Law varies directly with integration.” People in the center of a social circle have more liable laws than those in the outer (marginal) social circle. “Law is greater in a direction toward less conventionality than more conventionality.” Crime committed by a minority with the victim from the majority carries heavier punishment than vice versa.
“Law is greater toward less culture than toward more culture.” Crime committed by people with low education levels against those with high education levels receives a heavier punishment than the highly educated perpetrator of crime against those with less education.
People who are less socially respected are more likely to be implicated by the law and less likely to be its beneficiary.
“Law is greater in a direction toward less respectability than toward more respectability.” People who are less socially respected are more likely to be implicated by the law and less likely to be its beneficiary.
Impact of discrimination
Discriminatory practices in law enforcement evidently bring about injustices in society. However, people may not imagine the non-visible impact (Bastiat: 2010). When law enforcement officers ignore a fair-trial process, the visible result is the victim, the victim's family and disappointment among the community, unacceptance of unjust treatment, legal appeal to contend the verdict and public ridicule toward the legal process.
However, what is not visible is their growing conviction of distrust in law enforcement, the loss of social capital to build impartial law enforcement. People’s positive energy drains, only to condemn legal irregularities that becomes contra-productive to the establishment of just and civilized laws.
Another non-visible result is the collectively growing sentiment about injustice due to deep disappointment and hopelessness, arising from the fact that promises of justice are broken on a daily basis. Everyone inevitably feels in the same boat of desperation. What befalls someone directly will affect others indirectly. What happens today to someone will, they fear, in turn happen to them.
Improved collective awareness about the shared fate and legal threats to future life will bear the fruit of emotional sentiments, disappointments and mental tensions that can trigger social and political complications.
Suparman Marzuki, Lecturer at the School of Law, Islamic University of Indonesia
(This article was translated by Musthofid)
