Policing, procedural justice and remedial justice

The death of George Floyd in such horrific circumstances at the hands of the police in Minneapolis on 25 May sparked off civil unrest throughout the United States and public protests in many other parts of the world. Sadly, this was not an isolated event. Writing in The Observer (31 May 2020), Professor Paul Butler of Georgetown Law School, a leading scholar of race and criminal justice, noted that since 2005 about 15,000 people have been killed by US law enforcement officers, while less than 150 officers have been charged with homicide. Of those charged, a majority were found not guilty or had the charges dropped. As it happens, an academic article published a few weeks before the tragic events in Minneapolis gives some reason to hope that standards of policing as well as relations between police and community can be improved. The article in question, “Procedural justice training reduces police use of force and complaints against officers” by George Wood, Tom R Tyler and Andrew V. Papachristos, was published in the Proceedings of the National Academy of Sciences (https://www.pnas.org/content/cgi/doi/10.1073/pnas.19206671117). It reports on the outcome of a programme in Chicago where 8,480 police officers were encouraged to adopt procedural justice policing strategies which, in the words of the report, “emphasise respect, neutrality, and transparency in the exercise of authority, while providing opportunities for civilians to explain their side of events.” It was found that over a two-year period, the adoption of such strategies resulted in a 10% reduction in complaints against the police and a reduction of 6.4% in the use of force against civilians. These results may seem modest but, when the raw numbers are considered, the programme appears to have effected a significant improvement in relations between the police and the community.

Procedural justice in this context is always associated with the pioneering work of one co-author of that report, Tom Tyler. He is a social psychologist by background and now a Professor of Law and Psychology at Yale Law School. He is best known for his book, Why People Obey the Law (Yale University Press, 1990, with a further edition in 2006). For this and other leading works, he was awarded the Harry Kalven Prize in 2000 for “paradigm shifting scholarship in the study of law and society.” He drew a distinction between instrumental and normative reasons why people obey the law. The instrumental explanation reflects a utilitarian theory of human action which assumes that deterrence, especially in the form of criminal punishment, is necessary to secure compliance with the law. The normative perspective, on the other hand, focuses on other reasons why people obey the law – because of their own moral principles, for example, or because of a belief in the legitimacy of the law enforcement authorities. Another distinction, and an important one in the present context, is that the instrumental perspective assumes people assess procedural fairness according to the favourability of the outcome (e.g. I got acquitted, therefore the system was fair). The normative perspective is not just concerned with outcome but also with “neutrality, lack of bias, honesty, efforts to be fair, politeness, and respect for citizens’ rights” (Why People Obey the Law, p. 7). Consistent adherence by law enforcement personnel to these values should, according to Tyler’s argument, lead to a reduction in criminal behaviour.

Central to the normative perspective is the concept of legitimacy. People comply with the law, Tyler claimed, principally because they feel that law enforcement authorities are legitimate and that their actions are generally fair. Largely as a result of Tyler’s work, legitimacy has become an important theme in criminology and criminal justice scholarship during the past 20 years or so. It has featured in some important empirical and analytical work on prisons as well as policing (see, for example, Ben Crewe, The Prisoner Society: Power, Adaptation and Social Life in an English Prison (Oxford, 2009) and Alison Liebling, Prisons and their Moral Performance (Oxford, 2004)). During the past decade Anthony Bottoms and Justice Tankebe, both of Cambridge University, have developed a theory of “dialogic legitimacy.” See Bottoms and Tankebe, “Beyond Procedural Justice: A Dialogic Approach to Legitimacy in Criminal Justice” (2012) 102 Journal of Criminal Law and Criminology 119. The essence of this theory is that various power-holders, such as the police, make claims to exercise authority and those claims are made to different audiences (e.g. different racial or socio-economic groups). The responses of these various audiences may cause the power-holders to adjust their claims. This, if done effectively, should presumably increase the power-holders’ legitimacy. For a critique of the Bottoms-Tankebe theory, see Richard Martin and Ben Bradford “The Anatomy of Police Legitimacy: Dialogue, Power and Procedural Justice” (forthcoming, 2020) Theoretical Criminology, and available on SSRN. Incidentally, Richard Martin has another superb article “Ethno-National Narratives of Human Rights: The Northern Ireland Policing Board” (2020) 83(1) Modern Law Review 91. This includes an in-depth analysis, based on an empirical investigation, of the role of the Northern Ireland Policing Board in monitoring the performance of the police in complying with the Human Rights Act 1998. (This is one of the Board’s functions under the Police (Northern Ireland) Act 2000, s. 3). After a great introductory section on the “social life” of human rights, the article reveals, for example, marked attitudinal differences between Nationalist and Unionist members of the Board in terms of how they value and interpret human rights in a policing context.

It so happens that, back in 2015, on the day the Supreme Court delivered judgment in People (DPP) v J.C. [2017] 1 I.R. 417, mitigating the rigours of the exclusionary rule (assuming that’s a reasonable description of what the Court did), I was making a presentation to a conference of senior Garda officers. As the news about J.C. broke, I told them that they should find the decision regrettable and then, pausing momentarily to give them an opportunity to eject me from the conference hall (which they didn’t), I explained that I was proposing in any event to talk about procedural justice and Tyler’s work in particular. The essential message I had for them, and which I still believe to be valid, is that a steadfast adherence to procedural justice, even to what some might see as the point of absurdity, can pay dividends for the police themselves. I would not necessarily share Tyler’s optimism about the capacity of procedural justice to reduce crime, though I would not discount that possibility. Procedural justice, I suggest, is more likely to influence the behaviour of the law-abiding rather than the law breakers. But that of itself can bring great practical benefits. The ability of the police to detect certain kinds of crime (gangland crime being a prime example) and to amass sufficient evidence to justify a prosecution depends crucially on the willingness of those who have relevant information to share it with the police. Their willingness to do so will often be determined by their perception of the legitimacy of the police and their actions. They are more likely to accept that legitimacy if they know that the police response will be marked by the qualities identified by Tyler – objectively, lack of bias, strict adherence to the law, politeness, fairness and so forth.

The issue of remedial justice, mentioned in the title of this post, relates to a legal controversy in the United States which long predated the death of George Floyd but which, as a result of that death, is now very much to the fore again. This is the issue of “qualified immunity” and the story is very briefly as follows. United States law provides (42 USC s. 1983) that a person whose constitutional or other federal rights have been violated by state officials can sue for damages:

“Every person who, under colour of any statute, ordinance, regulation, custom or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the injured party….”

That seems very clear indeed. However, the Supreme Court has grafted on to it a defence known as qualified immunity which was expressed as follows in Harlow v Fitzgerald 457 U.S. 800 at 818 (1982):

“We therefore hold that government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

The Court explained that the introduction of the element of objective reasonableness “should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment.” The requirement that an action be a “clearly established” rights violation had robbed the section of much of its effectiveness. However, the qualified immunity doctrine has come in for intense criticism. In fact, it was criticised by Justice Thomas in Ziglar v Abbasi 582 U.S. – (2017). Its impact can be seen in a case such as Surratt v McClaran 851 F.3d 389, decided by the Court of Appeals for the Fifth Circuit in 2017. Police officers had effectively choked a woman in the back of a patrol car while trying to dislodge a packet of drugs which she was hiding in her mouth. She became unresponsive and was brought to hospital where she died about two weeks later. A section 1983 claim by her sister failed in both the District Court and the Court of Appeals. The latter court approved a statement of the former: “previous case law has provided no guidance regarding what is precisely reasonable and what is unreasonable regarding the use of force to an individual’s throat where the individual appears to be concealing something in their mouth.” The Supreme Court later declined to hear a further appeal.

Last week, Representative Justin Amash (the sole Libertarian Party member serving in Congress) introduced legislation proposing to end qualified immunity. It has already received some cross-party support.

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