Theorizing Pretextual Policy: Implications of De Facto Legalization

• In Event: Posters I

Abstract

The pretextual nature of certain policies has been noted or alluded to in recent literature, but this type of policy has not been formally conceptualized as a distinct category. Thus, the purpose of this project was to outline a theoretical framework for pretextual policy. We posit four characteristics of pretextual policy. First, it criminalizes an act that is conceivably detrimental to individuals and/or society. Second, the act, in-and-of-itself, is de facto legal. Third, due to the de facto legal status of the behavior, the policy can function to criminalize characteristics that are precluded from formal criminalization (e.g., race). Fourth, the particular circumstances in which enforcement occurs are dictated by the discretion of the enforcement authority (e.g., police officer), which is affected by social psychological processes (e.g., social norms regulating expressions of prejudice). Drug policy is the prototypical pretextual policy: Illicit drugs are arguably detrimental; at most, 6% of drug users are arrested for drug abuse; and racial minorities are disproportionally arrested for drug abuse (e.g., African Americans represent 13% of the population, but 29% of drug abuse arrests). Ethical issues and future directions are noted and discussed.

Authors

• Matthew Philip West, University of Nevada, Las Vegas

• Timothy Griffin, University of Nevada, Reno

• Filip M. Wiecko, Deceased