It’s a misdemeanor to drink in public parks in most cities, including Minneapolis. Yet when a gourmet group had a brunch in one of the city’s parks, because they thought the park had just the right ambience in which to enjoy their salmon mousse and imported French white wine, not only did the police not arrest the group for drinking in the park, but the city’s leading newspaper wrote it up as a perfectly respectable social event.

A public defender I knew wasn’t pleased with these decisions. He pointed out that the police had arrested— and the prosecutor was at that moment prepared to prosecute— a Native American caught washing down a tuna fish sandwich with cheap red wine in another Minneapolis Park. The public defender—a bit of a wag—noted that both the gourmet club and the Native American were consuming items from the same food groups.

This incident displays both the strengths and weaknesses of discretion. The legislature obviously didn’t intend the statute to cover drinking of the type the gourmet club engaged in; arresting them would have been foolish. On the other hand, arresting and prosecuting the Native American might well have been discriminatory, a wholly unintended and unacceptable result of law enforcement that is discretionary and selective.

• Do you believe this case involved unacceptable criminal law making? Back up your answer with details from the section “Informal Discretionary Law Making.”