Thursday, September 14, 2017

Policing and Procedural Justice in an Unjust Society

By Professor Eric Miller 

This post originally appeared on Prawsblawg, where Prof. Miller is guest blogging.

There is a sense, at least among a chunk of people, that policing in this country is broken: that the police are an authoritarian group that too often ignore the rights of minorities, especially African Americans, but also Latinos and other minority groups. The police hold these groups in contempt, and engage in unwarranted violence against minorities without being held properly to account. The popular reform proposed for this kind of police violence is "procedural justice": training the police to allow the people they encounter to given their side of the story before engaging in further action, increasing the chances that the civilian will voluntarily comply. The upside for the public is that "procedural justice" lowers the likelihood of police violence. The downside is that it is touted as real reform. But "procedural justice" is an inherently conservative response to problems with policing, and ignores—and perhaps even obfuscates—the need for real change. Worse, it potentially places the police in harms way in a manner that has longlasting moral and political (and perhaps psychological) costs for the police and the public. Here's why.

One way of seeing the problem is to realize that "procedural justice" explains the psychological impact on civilians of procedural due process. If police officers adhere to a form of procedural due process on the streets, civilians are more likely to comply with their directives. From a justice-oriented perspective, however, introducing procedural due process as a standard operating procedure for the police seems like a mealy mouthed—and long overdue—reform.

A standard critique of procedural due process is that it is insensitive to background considerations of justice. Procedural due process simply ensures that the parties get a chance of a hearing before someone who does not have a clear interest in the outcome of some dispute. But if the background equities are stacked against one of the parties, then that party has a much harder chance of success, even though the procedure used is just (in the sense of ensuring the parties get the right amount of participation). Worse, having committed to the procedure, the parties are bound by the results. The loser is disempowered from protesting her loss (except by means provided by the procedure, such as an appeal to some other authority, if such a right exists). Systems of procedurally just systems are often substantively unjust because a fair procedure in a system that is otherwise unfair cannot ensure that the parties receive their distributive or corrective due. Such inequities are often a feature of majoritarian political systems which are stacked against minorities; some form of substantive due process is often introduced as a means of mitigating against this sort of majority advantage.
"Procedural justice," as a psychological theory, demonstrates that these normative features of procedural due process have important psychological counterparts. If civilian perceives that an officer has treated her with procedural due process, then she feels better about the outcome, and is more likely to comply. That is true whether or not the procedure is, in fact, normatively just, and is certainly independent of the distributive or corrective justice of the encounter—or any of the other moral considerations that might apply.

But quite apart from the procedural justice of some state of affairs, there is also a question of our moral duties to our fellow citizens. In his remarkable recent book, Dark Ghettos: : Injustice, Dissent, and Reform (2016), Harvard philosopher Tommie Shelby has argued that the segregation and concentrated disadvantage of many urban neighborhoods are so incompatible with a fair system of government that each of us as a moral duty to help out. One way in which disadvantage may be concentrated would be for the local government to criminalize the populace, along racial lines, as a means of funding its basic functions: the sort of activity that ArchCity Defenders revealed was standard practice in Ferguson, Missouri, and other municipalities in St. Louis County, and which was backed up by theDepartment of Justice's report. Similar worries are raised by the widespread use of asset forfeiture that the current DoJ is trying to make a central plank of its embrace of "tough on crime."

There was plenty of talk after Ferguson of making the police and the municipal courts more "procedurally just." But the problem was not so much the lack of "procedural justice," but the lack of political equality, fair distribution of the burdens of policing, and corrective justice for those captured under the dragnet of discrimination. Even if each encounter was "procedurally just," Ferguson local government and the police that served to fund it was unjust and immoral in other ways. The residents of Ferguson were right to resist and protest these unjust arrangements. And once the rest of us were aware of these circumstances, we too have a duty, in justice, to support the Ferguson civilians, so Shelby's argument goes.

Here's the rub: "the rest of us" includes, not just you and me in our private capacity, but government officials too. If justice requires permitting or even supporting acts of resistance to deeply unjust social institutions—ones that single groups of people out for criminalization-for-cash based on their race and residency—then what is the obligation of a public official when confronted with enforcing the unjust institutional goals, rules, or interpretations of those institutions? Are the police and local prosecutor, confronted with an angry resident's demand to know why she is being singled out, required to recognize the protester's right to resist? Even if they enforce the law in perfectly procedurally just ways, nonetheless they do so on behalf of a substantively unjust system that creates and perpetuates particular types of inequality. Is the officer, in justice if not in law, required to express solidarity with the protester rather than the state?

The idea that policing placed the police in an untenable moral position was a staple of the criminology and ethnography of the police emerging in the late 1960s and early 1970s. I think that idea is basically correct. Jerome Skolnick, in "Justice Without Trial," his classic work on policing, calls this the conflict between "law" and "order," where law stands for basic considerations of justice, and order for the police desire to have their authority respected. More interestingly, I think, John Ker Muir envisaged the police officer who enforces unjust laws inevitably must forgo "the capacity to conceive of [our] own and others’ long-term and short-term advantage," and so of "the citizenry’s…hopes, their fears, their needs to be something worthwhile, their consciences.” Muir's point is that allowing individuals to act as police in circumstances of great distributive and corrective injustice encourages them to dehumanize those they police, at great moral cost, not only to others, but to themselves. Muir calls it a form of "moral breakdown." We might think of it as a form of moral harm.

We are familiar with the idea that the police may step in harms way and risk undergo physical danger. But much more common, if the ethnographers of the police are to be believed, is the moral dangers that the police face, in becoming inured to the everyday dehumanization of the individuals in the communities they police. Faced with the morally justified resistance of those they encounter, they police see those people as, to coin the title of John Van Maannen's well-known article, "The Asshole": "creep, bigmouth, bastard, animal, mope, rough, jerkoff, clown, scumbag, wiseguy, phony, idiot, shithead, bum, fool, or any of a number of anatomical, oral, or incestuous terms." These may not be the terms they use on the street to induce a compliant response, but they are the terms they use in the station-house or among each other.

One goal of police reform ought to be to get the police recognize that those of us on the other end of encounters are, for the most part, not assholes. We're moral and political equals. Just as important, we're not some bundle of rights (that gets in the way of policing): we are people, with all that entails, including being fellow participants in these communities. Our individuality and personhood demands that we be regarded (not just treated) with respect. Giving us a voice is not enough if that voice is heard with contempt. Especially if we are fooled into thinking we're making progress, when we're just treading water.

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