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1 FigurePolicing, procedural justice and prevention
Abstract
Procedural justice is receiving increasing global attention both as a way of improving the legitimacy of policing and because styles of policing associated with procedural justice seem to be associated with improvements in community-police relations and reductions in crime. This chapter locates procedural justice theory within a broader framework of compliance theories, and summarises the main features of the theory. The authors have developed, refined and tested procedural justice theory in Europe and elsewhere, using the 2010 European Social Survey, and the chapter presents some key findings. The chapter concludes with a discussion of the practical and ethical issues in embedding principles of procedural justice in policing.
Figures
Full-text (PDF)
Available from: Jonathan Jackson, Jun 21, 2016
1
Policing, procedural justice and prevention
Chapter to appear in Sidebottom, A. and Tilley, N. (eds.) Routledge Handbook of Crime Prevention
and Community Safety (second edition). Oxon: Routledge.
Mike Hough, Birkbeck, University of London
Jonathan Jackson, LSE
Ben Bradford, University of Oxford
Abstract
Procedural justice is receiving increasing global attention both as a way of improving the
legitimacy of policing and because styles of policing associated with procedural justice seem
to be associated with improvements in community-police relations and reductions in crime.
This chapter locates procedural justice theory within a broader framework of compliance
theories, and summarises the main features of the theory. The authors have developed,
refined and tested procedural justice theory in Europe and elsewhere, using the 2010
European Social Survey, and the chapter presents some key findings. The chapter concludes
with a discussion of the practical and ethical issues in embedding principles of procedural
justice in policing.
Key words: policing, procedural justice, ethics, compliance
2
The term crime prevention has always had narrower connotations than its near-synonyms
such as crime reduction or crime control. The particular focus of crime prevention is best
illustrated by the ‘Problem Analysis Triangle’ or crime triangle first proposed by Cohen and
Felson (c.f. Felson, 1994): the now-standard approach to crime analysis is premised on the
idea that crimes occur when motivated offenders converge with an attractive crime target in
the absence of ‘capable guardians’ (or effective controls). The triangle directs our attention to
preventive strategies involving opportunity reduction, reducing rewards or obstruction. As a
heuristic device, the triangle certainly doesn’t exclude strategies designed to reduce levels of
criminal motivation, but in practice crime prevention has been concerned with motivational
issues only at the margins. This chapter constitutes an extended plea for extending the scope
of crime prevention to embrace strategies and tactics that are designed to strengthen people’s
normative commitment to the rule of law – and therefore ‘demotivate’ offending behaviour.
A useful way of opening up this discussion is to invert the question posed by the crime
triangle – ‘what are the factors that trigger crime?’ – and to ask instead what factors lead
most of us to comply with most laws for most of our lives. Thus inverted, the question directs
us to answers that recognise that we are moral agents, and that our behaviour is guided by
norms that have been inculcated into us from childhood onwards. We shall argue that
effective crime prevention requires theories of compliance as much as it needs theories about
crime commission.
The chapter takes the following shape. First, we outline what we mean by compliance theory
and give some idea of the range of theories that examine the roots of normative compliance.
We then describe in rather more detail a particular compliance theory that in our view offers
much promise to policing. Procedural justice theory focusses on the role of fairness in
building trust in justice and institutional legitimacy, and we present some findings from the
2010 European Social Survey which test (and confirm) the main hypotheses of procedural
justice theory across 27 European countries. Finally we consider some ethical and practical
issues that need to be addressed in institutionalising procedural justice principles in policing.
Theories of normative compliance
Compliance theories have been well classified by Bottoms (2002), who proposed that there
are four categories of explanation for compliance with authority in general and with the
criminal law in particular. These are:
• prudential or self-interested calculations about the potential costs and benefits of
punishment, which take into account the risks and costs of punishment;
• the impact of obstructive strategies, such as locking up offenders to prevent their
reoffending, and locking up the targets of criminal attention, literally or
metaphorically;
• normative considerations about the ‘rights and wrongs’ of non-compliance; and
• habit.
Crime prevention theory – and policing policy – has traditionally been concerned with
prudential and obstructive explanations for compliance. Habit has been largely – and wrongly
– ignored by criminologists and crime prevention theorists as an explanatory factor, the only
significant exception being situational action theory (eg Wikström et al., 2012). This chapter
pays no attention to habit, except to suggest that dual process theory, most recently elaborated
by Kahneman (2012), could offer a useful way of conceptualising how patterns of both
prudential and normative decision-making get transformed into habits.
3
If crime prevention theory has paid rather limited attention to the establishment and
transmission of social norms, the topic has been one of the staples of sociology and social
psychology since Durkheim and Weber. We shall make no attempt to outline the
characteristics of the vast literature on norms and normative behaviour produced by these
disciplines, except to assert that they have charted the significant roles played by parenting
and child-rearing, by religion, by schooling and by the workplace in the establishment and
maintenance of social norms that guide people’s behaviour. Recent criminology has engaged
with these bodies of work at two main levels, both of which relate to institutional legitimacy
and its role in securing normative compliance
1
. As such, this marks a return to Durkheimian
and Weberian analysis of the roots of social order.
First, there has been renewed interest over the last two decades in the relationship between
crime and ‘political economy’ (cf. Reiner, 2007; Cavadino and Dignan, 2006, 2013), which
has traced the connections between the social distribution of wealth and attachment to – or
detachment from – social norms. The emergence of neo-liberal economic policies is
obviously implicated in this trend. Institutional anomie theories (cf. Messner and Rosenfeld,
2001, 2010; Rosenfeld et al., 2010; Messner, 2012) exemplifies this line of thought, whereby
rapid transitions towards the values of free-market economies are thought to unbalance and
weaken traditional normative systems of social control. More generally, the idea that high
levels of income inequality fuel crime by eroding people’s sense of social obligation is almost
a criminological truism, with a long sociological pedigree – even if the evidence is less
conclusive than some would expect. Moreover, the crime drop since the 1980s and 1990s, at
a time when neo-liberal economic policy has continued to enjoy popularity in several
countries, requires some effort, at least, to reconcile the view that inequality drives crime (see
van Dijk, 2013, for a critique of theories of crime and political economy).
Most criminologists would probably agree that extreme inequality is a threat to social order,
and that it is hard, if not impossible, to achieve a fair and legitimate criminal justice system
within a society that has a fundamentally unfair distribution of wealth and opportunity. There
is much less agreement as to whether developed industrialised economies, with their current
patterns of wealth distribution, have to tightly control the tendencies of market systems to
generate inequality if they are to control crime. Certainly, most criminologists would like to
see the crime-preventive dividend of a fairer distribution of income and wealth, but for
ministers of justice and for senior justice officials, these arguments are at best subsidiary to
ones about what they should do in the ‘here and now’ of improving systems of justice.
Policies to achieve social justice are probably best justified in their own terms, and not in
terms of their spin-off benefits for crime control.
There are also a number of micro-level (or perhaps meso-level) theories about the effect of
direct or indirect experience of the justice system on public perceptions of the legitimacy of
the institutions of justice and hence on crime. Some of these theories concern the impact of
the judicial system on public perceptions of legitimacy. Thus Robinson and Darley argue that
if the law’s potential for building a moral consensus is to be exploited, judicial outcomes, and
especially court sentences, must be aligned at least to some degree with public sentiments
(Robinson and Darley, 2007, 2010; Robinson, 2012). Their ‘intuitive justice’ arguments are
partly retributivist in nature (that the least indefensible way of making judgements about
relative offence gravity is by reference to public opinion) and partly consequentialist (that
judicial decision-making needs to keep in step with public opinion if it is to command
legitimacy). This second leg of their argument is about the role of outcome justice (or
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distributive justice) in securing the legitimacy of the institutions of justice, and the courts in
particular. The empirical evidence in support of these arguments is weak – and indeed there is
some evidence from the Netherlands that the public accepts or welcomes the fact that judges
tend to impose more lenient sentences than public opinion implies (de Keijser, 2014).
Whatever the merits of intuitive justice theories, however, it is questionable whether they
have much relevance to crime prevention theorists or practitioners.
The same cannot be said of procedural justice theory, as there is considerable evidence that
procedural justice approaches can secure public compliance with legal authorities in general
and with the police in particular. The logic of these ideas is similar to that of intuitive justice
theory – that criminal justice agencies can build or squander their legitimacy by acting in
particular ways, with direct consequences for levels of public compliance. However
procedural justice theory offer substantially different approaches to legitimacy building.
Procedural justice theory
Procedural justice theory’s emergence towards the end of the last century is associated with
the work of Tom Tyler and his colleagues (e.g. Sunshine & Tyler, 2003; Tyler, 2003; Tyler &
Fagan, 2008; Tyler et al., 2010; Tyler, 2011; Schulhofer et al., 2011; Papachristos et al.,
2012; Huq et al., 2011a, 2011b; Tyler & Jackson, 2014; Tyler et al., 2015). Procedural justice
theory comprises a set of consequentialist arguments, based on the role of procedural fairness
in shaping institutional legitimacy. The theory emphasises the need for justice institutions to
pursue fair and respectful processes as the surest strategies for building trust in justice, and
thus institutional legitimacy and compliance with the law. This is the central hypothesis in
procedural justice theory. Procedural fairness requires power-holders, such as the police, to:
• treat people according to the rules
• treat them with dignity and respect
• listen to what they have to say
• and explain the reasons for their decisions.
Legitimacy is a complex concept and scholars typically identify two constituent parts (for
discussion see Tyler, 2006a, 2006b;
Bottoms & Tankebe, 2012: Hough et al., 2013; Tyler &
Jackson, 2013; Jackson & Gau, 2015)
. One element is the perceived moral appropriateness of
the institution (does it have the right to power?). The belief that an institution is appropriate,
proper and just can be operationalized in surveys of the public as normative alignment
between power-holders and subordinates: on this account, normative justifiability of power is
treated as the public belief that a legal authority acts in desirable and expected ways (Jackson
et al., 2012a, 2012b). Importantly, when institutional actors are seen to respect societal values
about how they – as authority figures – should treat citizens, this creates a corresponding
sense among citizens that they, too, should act (like cooperating with the police and acting
lawfully).
The other key element of legitimacy is an internalized sense of consent to the authority
structures connected to that institution (is it entitled to be obeyed?). When people recognise
the authority of the police as legitimate, they defer to the orders of police officers, not
because of fear of punishment or anticipation of reward, but because of a normatively
grounded obligation to obey rules and directives. People internalize the moral value that they
should obey the law or directive, and a sense of deference and content-free obligation then
motivates law-abiding behaviour.
5
The key contribution of procedural justice theory is in identifying the sorts of institutional
behaviour that are most effective in building legitimacy in the eyes of the public. Common
sense would imply a number of causal factors. The most obvious route for a criminal justice
manager who wishes to build or consolidate institutional legitimacy is to build public trust in
institutional competence. However procedural justice research has found consistently that
perceived fair treatment tends to be a more powerful legitimating factor than perceived
competence (Hasisi & Weisburd, 2011; Murphy & Cherney, 2012; Bradford et al., 2014a;
Pennington, 2015; Cheng, 2015; Saarikkomäki, 2015; White et al., 2016; Reisig & Bain,
2016; Beijersbergen et al., 2016) – with some exceptions, however, which are discussed
below. This finding is counterintuitive, and one that criminal justice managers – whose
performance is assessed almost entirely in terms of competence – may find difficult to accept.
Types of fairness
If public trust that justice institutions will treat them fairly is the key to building legitimacy, it
is important to be clear about the different dimensions of fairness. Procedural fairness is not
the same as achieving fair outcomes. A power-holder can sometimes achieve a fair outcome
without following fair processes; and conversely a power-holder can be procedurally fair but
still ‘get it wrong’ and arrive at an unfair outcome. Procedural justice research has generally
concluded that people are more concerned that they should be treated decently by a power-
holder who makes objective decisions than that the outcome of the encounter should be in
their favour. In other words, procedural fairness trumps outcome fairness in building
legitimacy.
Like the finding that trust in fairness provides a surer route to legitimacy than trust in
competence, this finding is counterintuitive, and one that many police may find
uncomfortable. It may also be that at some points in the criminal process – notably when it
comes to court sentencing – outcome fairness assumes overwhelming importance in the eyes
of defendants and victims. This is certainly the finding of qualitative research into sentencing
(Jacobson et al., 2015). However, in the policing context, procedural fairness seems to be of
particular importance.
Distributive fairness – or the extent to which power-holders treat different groups in the same
way – is another important dimension of fair treatment and decision-making, and one that
should arguably have been more salient in legitimacy research (although see Tankebe, 2013;
Huq et al., forthcoming). The deficits in police legitimacy that have been so evident in the
United States associated with policing shootings of black citizens (President’s Task Force,
2015), is surely best understood as a function of a lack of distributive fairness. Whilst it is
possible to distinguish conceptually between procedural and distributive fairness, they are
likely to be empirically correlated. (If police officers tend to over-use stop-and-search
techniques with particular groups, there is a clear likelihood that they will also provide poorer
quality of treatment and decision-making to these groups.)
Explaining the legitimating power of procedural justice: social identity
Given how strongly trust in procedural fairness predicts people’s perceptions of police
legitimacy, it is reasonable to expect some persuasive explanation for this association (and to
understand why procedural justice is more important than effectiveness). Social identity
theory provides a good conceptual framework for doing so (Blader and Tyler 2009; Tyler and
Blader 2003). Social identity provides a plausible mechanism for the links between
experience of fair treatment from the police and perceptions of police legitimacy. Justice
institutions, especially the police, represent important social groups like the nation, state and
6
community. One reason why people value fair treatment, and one reason why respecting
norms of fairness leads to legitimacy, cooperation and compliance, is that the quality with
which the police and other justice officials treat citizens communicates to them messages of
inclusion and belonging (Bradford et al., 2014b, 2015; Bradford, 2014; Murphy et al., 2015,
2016). Put simply, people are more likely to hold legitimate – to feel normatively aligned
with and that they have a moral duty to obey – the authorities of groups to which they feel
they belong. Police demeanour – whether officers are polite and respectful, whether they
listen and explain – is much more identity-relevant to most people than technical competence,
because it provides significant information about their status within these groups in ways that
competence does not.
Procedural justice and policing styles
Procedural justice theory ‘speaks to’ crime prevention policy most directly in relation to
policing styles. Stated at the most general level, procedural justice theory argues that quality
of human interaction is central to the effective use of police authority, and that “T'ain't what
you do, it's the way that you do it” that is the key to winning hearts and minds. Of course
these underpinning ideas have enjoyed political currency, with varying degrees of saliency,
for many years. Thus in the UK, community policing enjoyed a vogue in the 1970s and 1980s
(cf Alderson, 1984). The same basic ideas were reintroduced as ‘Reassurance Policing’ and
‘Neighbourhood Policing’ in the first decade of this century. However, politicians have
tended not to articulate the rationales for these policing styles with any precision, and when
they have done so, they have usually appealed to ideas about a partnership between the police
and ‘the law abiding majority’ which would yield public cooperation in the ‘fight against
crime’. Very little has been made of the fact that legitimate institutions can command not
only public cooperation but also wider compliance with the law – probably because few
politicians are rash enough to suggest to their electorate that those who vote them into power
are anything but law-abiding.
The reality is that we are all subject to police authority, and most of us can readily think of
situations where our own compliance with the law is less than total. Our behaviour – or,
perhaps, our misbehaviour – falls within the ambit of the justice system whether we like it or
not. Given that it is not our choice to be regulated, it is especially important that we can
invest trust in the fairness of the processes through which we are governed. And more to the
point from a policy standpoint, the probability of securing our compliance can be increased if
the police work at building their legitimacy. What procedural justice theory contributes to
debates about police legitimacy is some very clear policy prescriptions about the police
legitimation strategies that are most likely to prove effective.
The assymetrical impact of good and bad experiences with the police
An important set of findings replicated internationally is that it is harder to build trust in the
police than to squander it (see especially Skogan, 2006, Bradford et al., 2009, Myhill and
Bradford 2012). Direct and indirect experience of police encounters are important shapers of
people’s attitudes to the police. Good experiences appear to have a positive but rather small
positive impact on trust in the police; experiences that are rated neutrally tend to depress
ratings somewhat; and bad experiences have a marked negative impact. This is a specific
illustration of the general phenomenon (as the Dutch proverb has it) that trust arrives on foot
and leaves on horseback. While this may not be entirely reassuring for police managers
tasked with improving public confidence this asymmetry is important because it suggests that
the inevitable process of face-to-face interaction between police and policed holds the
potential to significantly damage public trust and police legitimacy. Maintaining the quality
7
with which police treat the policed is not an ‘optional extra’ but something that is essential to
retaining police legitimacy and thus public compliance and consent to the rule of law.
Testing a legitimacy model of compliance: the European Social Survey
To date, most empirical work testing procedural justice theory has been carried out in the
United States, Australia and the United Kingdom. However, we and colleagues used the
European Social Survey (ESS) to mount an international comparative study across 28
European countries
2
. The ESS is carried out every two years. It is modular, having a set of
core modules, and a variable set of rotating modules. Academics are invited to bid for space
in the survey to design rotating modules. We bid successfully in 2009 for space in the 2010
ESS, and designed a ‘trust in justice’ module to test our variant of procedural justice theory
(Jackson et al., 2011, 2012a). The ‘trust in justice’ module allows us to examine whether
people comply with the law in part because they believe that the police and legal system hold
legitimate power, operating in accordance with generally accepted principles of right and fair
process. We can also assess whether individuals seem to internalise the value that one should
obey the law, and whether they are swayed by the moral standards of the justice institutions
that they do or do not identify with.
The trust in justice module asked people both about the police and the courts, though only
findings on the police are presented here. It included: questions on several different types of
trust in the police; measures of police legitimacy; and indicators of compliance with the law
and preparedness to co-operate with the police. In tracing the linkages between public trust in
police fairness, perceptions of police legitimacy and compliance with the law, we necessarily
focus on low-level criminal behaviour. Not only are more serious forms of offending rare,
survey respondents are unlikely to own up to them when asked (and offenders are arguably
unlikely to be sampled in the first place).
Figure 1 shows how three dimensions of trust in the police (trust in police effectiveness, trust
in their procedural fairness and trust in their distributive fairness) are related, respectively, to
one of the key dimensions of perceived legitimacy – belief that there is ‘moral’ or
‘normative’ alignment between the police and public. The graphics present the key results of
three sets of country-by-country multivariate models, with demographic variables such as age
and sex as covariates. For each country the strength of the relationship is indicated by the
positioning of the dot on a scale which has positive and minus values. The position on the
scale indicates the ‘effect size’ of the conditional correlation between variables in our
structural equation models. High positive scores mean strong positive correlations, and high
negative scores mean strong negative correlations. The ‘arms’ spreading out from each dot
indicate confidence intervals in our estimates of effect size. (In other words, the true effect
size could lie anywhere between the ‘stretch’ of the two arms.) Where the value of zero falls
within the confidence intervals, the relationship is not statistically significant.
8
Figure 1 Relationships between forms of trust in the police and perceived moral alignment with the police
Source: European Social Survey Round Five (2010)
9
Figure 1 provides important confirmation of the significance of procedural fairness as a
predictor of legitimacy in a cross-national comparative context. The left-hand chart shows
that trust in effectiveness (or competence) is significantly but weakly associated with
respondents’ sense of moral alignment with the police in most but not all countries. The
central chart shows that in all countries in the sample there is a strong positive relationship
between trust in procedural fairness and moral alignment. The right-hand graphic shows that
there is a weak but statistically significant relationship between trust in distributive justice
and moral alignment in under half of participating countries. One possible explanation for
this lack of relationship is that groups who are treated unfairly may not experience this as
distributive injustice, but as simple unfairness – or, equally, that people find it hard to
imagine distributive unfairness in the absence of procedural unfairness (since how else might
unfair outcomes be generated), and the latter is more salient or meaningful to them. Similar
patterns of relationship emerge for the other main dimension of perceived legitimacy – the
sense of obligation to obey the police (results not shown here). Across the countries surveyed
trust in police procedural justice was by some margin the most important predictor of
perceived duty to obey police.
To what extent is there empirical support in the ESS for the causal linkages, predicted by
procedural justice theory, between legitimacy and compliance with the law? Tests of
measurement equivalence (or invariance) suggest – unsurprisingly – that respondents in
different countries may sometimes have different understandings of the items used in the
survey and therefore, perhaps, that the underlying latent constructs those items measure vary
from country to country (legitimacy might mean something different in France compared to
Russia). For this reason we tested hypotheses on a country-by-country basis. Figure 2 shows
the results of a structural equation model fitted to the UK data, with the dependent variable
being whether respondents admitted to buying stolen goods.
3
In this model, we move from
left to right in the figure. The hypothesised causal sequence moves from trust and morality to
perceived legitimacy, from perceived legitimacy to legal legitimacy and risk of sanction, and
from there to offending behaviour. Note that the asterisks in all these figures refer to
statistical significance levels (*=statistically significant at the 5% level, **=statistically
significant at the 1% level, ***=statistically significant at the 0.1% level).
This analytical approach allows us to examine a number of potentially competing pathways
to compliance. Looking at the results, we see that three are significant. The first is the
pathway of instrumental compliance. This is where an individual responds in a self-interested
way to policing, whether to gain a reward or to avoid punishment. Finding some small
evidence for this pathway, the indirect effect of trust in police effectiveness – via the
perceived risk of getting caught – on buying stolen goods is statistically significant (albeit
small). Believing that the police are effective (in controlling and deterring criminals and
turning up generally in cases of emergency) and believing that one is likely to get caught is
associated with a lower expected chance of buying stolen goods.
10
Figure 2: Why do people comply with the law?
Source: European Social Survey Round Five (2010), UK data
The second pathway is the morality of the act. Here the effect is relatively strong. People who
think it is wrong to buy stolen goods also tend to report not having bought stolen goods
(probably because they haven’t, but possibly also because they do not like reporting things
that they think are immoral). They refrain from behaving in a certain way – even if that act
was suddenly made legal or they would benefit personally – because their moral principles
lead them to comply.
The third significant pathway is moral alignment with the police. People who believe that the
police act in normatively appropriate ways tend also to be less likely to report buying stolen
goods. Controlling for their sense of obligation to obey the law (and the police), their
perception of the risk of getting caught, and their feelings about the morality of the act, a
sense of moral alignment with the police – that the police generally behave in a normatively
appropriate manner – seems to encourage a sense amongst citizens that they too should act in
ways that match societal expectations regarding appropriate behaviour. Adjusting for specific
assessments of morality and sanction, they believe that the police represent appropriate
normative and ethical frameworks; and this moral exemplar seems to encourage them to act
in accordance to social rules and norms.
Do these (and other) empirical tests of procedural justice theory constitute clinching evidence
that crime can be reduced by applying principles of procedural justice (Bradford et al. 2015;
Jackson et al. 2012a; Tyler 2006b)? Probably not. There is obvious room for doubt about the
direction of causality in cross-sectional survey analysis of this sort (although increasingly
there is also support from experimental research (e.g. Mazerolle et al, 2013). Sceptics might
also wonder whether it is possible to operationalise measurement of subtle concepts to do
with trust and legitimacy. We would argue that there is now considerable vouching evidence
4
in support of procedural justice theory, however. In particular, the ESS module on trust in
11
justice was designed as a hypothesis testing exercise, and the main hypotheses survive
scrutiny well – despite all the limitations of the essentially reductionist survey method.
What is more questionable is whether there are direct and immediate relationships between
the application of procedural justice principles in a specific situation and the prevention of
crime. A normative commitment to compliance with the law is almost certainly slowly
developed, even if it can be destroyed more quickly. It would be unreasonable to expect a
tightly coupled relationship between exposure to procedural fairness and compliance with the
law – and naively optimistic to imagine that heavily engrained patterns of criminal behaviour
can be disrupted through fleeting encounters with well-mannered police officers. But equally,
it strikes us as extremely risky for police managers to pursue styles of policing that threaten
over time to erode their legitimacy in the eyes of key groups, such as those at risk of
involvement in crime. Our reading of the evidence is that assessment of any policing or crime
reduction policy needs to accord a central place to the consideration of the impact of that
policy on police legitimacy.
Practical and ethical considerations
If principles of procedural justice seem unexceptional and commonsensical, they tend not to
be reflected in political discourse about crime and policing, and they meet with a degree of
resistance from the workforce. The reasons for this need to be examined in a little detail.
At the political level, advocating procedural justice approaches in policing carries risks. The
label itself has connotations of due process and ‘playing things by the book’ which may
prompt resistance from the large proportion of the population that feel that the justice system
is already unduly weighted in favour of ‘the criminal’. Even when it is made clear that
procedural justice is as much about the quality of treatment meted out by the police as it is
about legality, the electorate is unlikely to warm to policies that call for the treatment of
offenders and suspects with dignity and respect
5
. There are some exceptions, however,
notably the report of the US President’s Task Force, set up in response to the downward
spiral of relations between police and black communities following a number of police
shootings of black suspects. The report stated on its first page that:
Law enforcement agencies should adopt procedural justice as the guiding principle for
internal and external policies and practices to guide their interactions with rank and
file officers and with the citizens they serve. (President’s Task Force, 2015: p1),
It is also significant that the UK Home Secretary at the time of writing has been a determined
and persistent critic of the overuse and misuse in some police forces of stop-and-search
tactics, on the grounds that it damages legitimacy whilst providing minimal preventive
benefits.
If political support can sometimes be forthcoming for principles of procedural justice, police
leaders also tend to divide into supporters and sceptics. In the US, procedural justice
principles are embraced by many reform-minded police chiefs, though abrasive policing of
socially marginalised groups remains a serious – and as yet unsolved – problem. In the UK, it
is striking that Her Majesty’s Inspectorate of Constabulary now badges itself as the
organisation that ensures police are effective, efficient and legitimate.
6
On the other hand
there are plenty of police leaders who favour tactics such as the aggressive use of stop-and-
search as an essential tool in controlling crime
7
.
12
Divisions of this sort are also reflected amongst front-line police and their supervisors. In part
this can be understood as a function of police occupational culture, which is, classically,
action-orientated and places particular value on crime-fighting goals. At the risk of over-
simplification, Dirty Harry remains a seductive role model for many police officers. In the
UK, the persistence of numerical targets in assessment of both staff and units of command is
probably perpetuating this tendency. These targets remain, moreover, focussed largely on
crime-related outputs and tend therefore to direct officers’ attention away from concerns
about process (albeit that in some forces increasing attention is being given to the quality of
delivery as well as its outcomes).
The day-to-day pressures on police officers can also work against principles of procedural
justice. It is easy to maintain standards of politeness and civility when dealing with tractable
and compliant citizens. It is much harder to do so when – as often happens – people challenge
police authority, and refuse to comply with the officer’s demands. Faced with such
challenges, officers can respond in several ways. The worst choices are probably to withdraw
or cave in, and to make no further demands for compliance. These are bad choices because
they squander officers’ authority at least in that encounter and in any future encounters with
the same people. Another option is to overwhelm the challenge with coercive force – most
obviously through arrest. This is the most tempting response to challenge – an instinctive way
of dealing both with disrespect and with the potential threat to personal safety that is inherent
in challenges to police authority. However the best response – if it can be achieved – is to use
procedural justice tactics to de-escalate the challenge and to secure compliance without
coercion. To use the terminology of international relations, it is usually better to use
persuasive ‘soft power’ than coercive ‘hard power’ (Nye, 2005). The problem facing police
in many neighbourhoods is that they may find themselves in a ‘hard power trap’: once
coercive tactics have been overused, persuasive “soft power” tactics may no longer have any
purchase on the policed population (cf Hough, 2012).
How to negotiate out of a hard power trap is one of the hardest policing skills to acquire, and
persuading the workforce of the importance of avoiding hard power traps is difficult. There
are several evaluations that show that training in procedural justice principles can be
effective. A key message that appears to hit home with frontline staff is that procedural
justice approaches are more likely to secure officers’ safety than hard power approaches.
However it seems unlikely that training will transform policing styles unless it is
accompanied by strong leadership at middle and senior level. Without buy-in and, crucially,
promotion by managers it is hard to envisage how the positive modes of policing presaged by
procedural justice theory will spread effectively through police organizations. Which is not to
claim that police officers do not already behave in such a manner, at least most of the time.
Many clearly do. Rather, such modes of policing have not, or only rarely, been systematized
within the organization, meaning that application of process-based styles remains largely at
the level of practical knowledge or operational culture. While this remains the case it is all
too easy for aggressive or enforcement-lead modalities to take precedence at inappropriate
times and in inappropriate places.
Ethical issues
Procedural justice approaches raise in a particular form the ethical and political problems that
generally are created by all low-visibility non-instrumental approaches to social control. The
strategies and tactics of procedural justice may be used as a means to ends which are
inconsistent with principles that accord respect and fair treatment to citizens. There is a risk
13
that the appearance of fairness, dignity and respect can mask underlying behaviours,
processes and outcomes that have precisely the opposite characteristics. And for this to be
done successfully, power-holders need to disguise the ends that they are actually pursuing.
The key ethical risk in deploying procedural justice strategies occurs when they are used to
legitimate styles of control that are illegal, unethical or undesirable. To use the distinction
made by Hinsch (2008, 2010), legal authorities may exploit their empirical legitimacy (or
subjective legitimacy in the eyes of the policed) to justify or render acceptable forms of
behaviour that lack normative legitimacy (or legitimacy assessed against agreed objective
norms). The obvious examples is the undue restriction of liberty through stop-and-
search/frisk and related activities that might be made palatable by the style in which stops are
executed. It is also possible that in heterogeneous societies, the majority of the public may be
easily led to support overbearing treatment of minority groups.
Marxist theory and the tradition of legal realism offer recognisably similar arguments, but
which are framed at the societal level. The Marxist version of this argument is that a
particular narrative about legal institutions can provide an ‘ideological cloak’ which hides
existence of the material inequalities of capitalism from both the beneficiaries and the victims
of the system. Thus the principle of equality before the law guarantees formally– but not
substantively – equal treatment of rich and poor, powerful and weak. This appearance of
fairness justifies the – less than fair – economic or material conditions of capitalism. The
argument is basically one about ‘false consciousness’, on the same lines as Marx’s much
quoted phrase that religion is the opium of the masses
8
. Ideological forms serve to secure
popular acceptance of – or at least resignation to – social arrangements that are less than fair.
Empirical research has demonstrated that at an individual level procedural justice tactics can
render extra-legal police behaviour tolerable to the public. People will accept police practices
that are not legal, provided that they see these practices as fair, and do not expect officers to
be punished for such behaviour (Meares, 2012). Clearly this represents an undesirable
outcome for procedural justice theorists. It is harder to evaluate claims that at a societal level,
the police, or more broadly the institutions of justice, can provide an ideological cloak to
protect unfair social structures from challenge. However, political psychologists have more
recently offered some empirical support, by demonstrating that the demographic correlates of
‘status quo bias’ are consistent with system justification theory (Jost et al., 2010, 2014). It is
important, therefore to ask how these risks, whether at the individual or societal level, can be
effectively mitigated.
It is fairly clear what should be done to mitigate the risks posed by individual officers who
use procedural justice tactics in ways that are clearly manipulative. At the simplest level,
training and professional development needs not only to equip officers with the social skills
needed to deploy procedural justice tactics effectively while also ensuring that they
appreciate there is a boundary between courteous sincerity and manipulation which should
not be crossed. Probably the most persuasive way of getting this message across to the
workforce is to show that the costs of insincerity, once identified, are high: people are
sensitive to attempts at manipulation, which can often evoke a hostile reaction.
There are two sorts of response to the criticisms that at an institutional or societal level,
procedural justice strategies serve as an ideological cloak that masks social injustice and
seduce citizens into consent. The first is to recognise that that the institutions of justice can
function in this way, but when they do, the remedies do not lie within the criminal justice
system
9
. The second, and more ambitious, response is to try to ensure that the institutions of
14
justice are built upon principles of democracy and human rights that are inconsistent with
social justice.
Making convincing connections between procedural justice approaches and underlying
principles would need to appeal to conceptions of citizenship which privilege autonomy and
agency, and make some reference to human rights. In other words, it would involve
recognition of the fact that procedural justice theory may provide a powerful descriptive
account of the processes that secure compliance with authority, but that it cannot by itself
form a prescriptive theory about good policing.
The key to resolving these issues is to clarify the motives that underlie procedural justice
tactics. If the tactics are seen first and foremost to be instruments for securing compliance,
then it is likely that the ethical issues surrounding insincerity and deception will rapidly
emerge. If however the primary justification for the tactics is that they are supported by a set
of ethical standards in enforcement, and that it is only coincidental or serendipitous that they
will also serve to promote cooperation and compliance, this probably provides a way of
resolving the ethical dilemmas relating to instrumental justifications for procedural justice
tactics. The pursuit of compliance need not displace the values that underpin procedural
justice tactics.
15
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Endnotes
1. Sociological criminology of the 1960s and 1970s was, of course, much more engaged with this literature, for
example with Sutherland's (1939) theory of differential association, Matza and Sykes’ theory of norm
neutralisation (Matza,1964), and Hirschi’s control theory (eg Gottfredson and Hirschi, 1990).
2. The full dataset of the 2010 European Social Survey covered 28 countries with a total sample of 52,458 cases.
http://www.europeansocialsurvey.org/data/download.html?r=5. 25 countries are included in the analysis
presented here.
3. The fit of the model is good according to the approximate fit statistics although not according to exact fit
statistics: Chi-square 431, degrees of freedom 80, and p<.001; CFI .96, TLI .98, and RMSEA .04.
4. To use the terminology of Cartwright and Hardy (2014).
5. Though politicians tend to overestimate the desire for tough crime control policies – see Hough and Roberts,
2016 in press).
6. The inspectorate (HMIC) now operates a programme of PEEL inspections, which assess all police forces in
England and Wales on their effectiveness, efficiency and legitimacy.
7. Notably in Scotland, where overuse of stop-and-search contributed to the resignation of the first Chief
Constable of Police Scotland in 2015. He was criticised for using “industrial levels” of stop-and-search,
particularly with young people. http://www.theguardian.com/commentisfree/2015/aug/28/stephen-house-
police-scotland.
8. See Jost et al., (2010, 2014), for evidence that that religion can serve as a palliative to social conditions.
9. This is a version of the dilemma facing any reform-minded criminologist who sees connections between
crime and social injustice.
- CitationsCitations0
- ReferencesReferences67
- [Show abstract] [Hide abstract] ABSTRACT: This study considers the circumstances under which members of the Muslim American community voluntarily cooperate with police efforts to combat terrorism. Cooperation is defined to include both a general receptivity toward helping the police in antiterror work and the specific willingness to alert police to terror-related risks in a community. We compare two perspectives on why people cooperate with law enforcement, both developed with reference to general policing, in the context of antiterror policing and specifically among members of the Muslim American community. The first is instrumental. It suggests that people cooperate because they see tangible benefits that outweigh any costs. The second perspective is normative. It posits that people respond to their belief that police are a legitimate authority. On this view we link legitimacy to the fairness and procedural justice of police behavior. Data from a study involving interviews with Muslim Americans in New York City between March and June 2009 strongly support the normative model by finding that the procedural justice of police activities is the primary factor shaping legitimacy and cooperation with the police.
- [Show abstract] [Hide abstract] ABSTRACT: Research shows that procedural justice can motivate compliance behavior through the mediating influence of either legitimacy or social identity. Yet few studies examine the relative importance of these two mediators in the same analysis. Using three waves of longitudinal survey data collected from 359 tax offenders we examine: (a) whether procedural justice is important to offenders’ decisions to comply with their future tax obligations over and above fear of sanctions; and (b) whether legitimacy and social identity processes mediate the relationship between procedural justice and compliance. Our results reveal that: (1) legitimacy mediates the effect of procedural justice on compliance; (2) social identity mediates the procedural justice/compliance relationship; (3) identity seems to matter slightly more than perceptions of legitimacy when predicting tax compliance; (4) perceived risk of sanction plays a small but counterproductive role in predicting tax compliance. We conclude that normative concerns dominate taxpayers’ compliance decisions. Our findings have implications for understanding compliance behavior, but also for conceptualizing why and how procedural justice can motivate such behavior.
- [Show abstract] [Hide abstract] ABSTRACT: A social indicators approach to trust in justice recognizes that the police and criminal courts need public support and institutional legitimacy if they are to operate effectively and fairly. In order to generate public cooperation and compliance, these institutions must demonstrate to citizens that they are trustworthy and that they possess the authority to govern. In this paper we first outline the conceptual roadmap for a current comparative analysis of trust in justice. We then describe the methodological development process of a 45-item module in Round 5 of the European Social Survey, which fields the core survey indicators. After presenting the findings from a quantitative pilot of the indicators, we consider the policy implications of a procedural justice model of criminal justice.
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