American policing at a crossroads: unsustainable policies and the procedural justice alternative.

• Author: Schulhofer, Stephen J.

1. INTRODUCTION

   As victimization rates have fallen, public preoccupation with policing and its crime control impact has receded. Terrorism has become the new focal point of public concern. But the apparent satisfaction with ordinary police practices hides deep problems.

   Public order successes have been achieved at great cost to politically powerless communities. As the controversy surrounding the recent arrest of Harvard Professor Henry Louis Gates illustrated, (1) our laws and the way they are enforced have resulted in public attitudes sharply polarized along racial lines, (2) a division that is scarcely surprising in a nation marked by conspicuous racial disparities in its prison populations. (3) And the costs of current strategic choices are no longer confined to minorities and the poor. Through its criminogenic impact, imprisonment has cross-cutting effects for the wider population, promising safety through deterrence at the same time as it increases victimization at the hands of former inmates. (4) These costs are compounded by fiscal consequences that are now impossible to ignore. In California, reliance on long-term imprisonment as a crime-control strategy has choked off funds for education and pushed the state to the brink of insolvency. (5) Budget imperatives are forcing the state to reduce its prison population by 6,500 inmates, even in the face of recidivism rates of nearly 40%, among the highest in the nation. (6) One prisoner brought home the dilemma and triggered widespread alarm when he was released early but then promptly re-arrested for attempted rape. (7) In other places, incarceration policies generate fiscal burdens that, if less dire, are nonetheless patently unsustainable. (8) Highly stretched police forces from New York City to Tulsa, Oakland, Los Angeles, and elsewhere are facing cuts in personnel, even in their high priority units. (9)

   The pressures have become especially acute because we can no longer subordinate conventional law enforcement to the newer preoccupation with terrorism. That domain was long seen as far removed from everyday policing. But government measures in this once-distant arena increasingly intersect with local efforts to control ordinary crime. (10) And, as we discuss below, the local policing practices currently favored in much of America not only have hidden costs for effective crime prevention but also can directly undermine sound responses to the threat of terrorism.

   The time is ripe, therefore, for rethinking the assumptions that have guided American police for most of the past two decades. Zero-tolerance policies and the order-maintenance model, as well as their various cousins, for all of their apparent success must be reoriented to make room for different priorities. We see no need for a radical restructuring of the police function, but what we propose is nonetheless a significant shift in emphasis, a shift to what we call a procedural justice model of policing.

   The procedural justice approach is grounded in empirical research demonstrating that compliance with the law and willingness to cooperate with enforcement efforts are primarily shaped not by the threat of force or the fear of consequences, but rather by the strength of citizens' beliefs that law enforcement agencies are legitimate. And that belief in turn is shaped by the extent to which police behavior displays the attributes of procedural justice--practices, described in more detail below, which generate confidence that policies are formulated and applied fairly so that, regardless of material outcomes, people believe they are treated respectfully and without discrimination. When policing approaches the procedural justice model, law enforcement can be even more effective at lower cost and without the negative side effects that currently hamper our responses to international terrorism. Indeed, the procedural justice model has direct relevance for the development of successful strategies within that domain itself.

   In Part II of this Article, we situate the procedural justice approach by reviewing the principles that inform the police function and the ways they have changed over recent decades. Part III describes the procedural justice model and explains its theoretical and empirical foundations. Part IV focuses on concrete policy implications for ordinary policing and for efforts to combat international terrorism. Part V offers concluding thoughts.

   2. CHANGING CONCEPTIONS OF THE POLICE FUNCTION

      1. GOALS AND PRINCIPLES

         From their beginnings in the early 1800s and for more than a century thereafter, urban police in America were a politically attuned branch of municipal government, charged not only with preserving order but also with relaying citizen requests for city services and delivering benefits to constituents at the precinct and ward levels. (11) As American cities mushroomed in size and density and as local political machines flourished, the police, deeply engaged in collecting and distributing patronage, occasionally brutal and often corrupt, became an indispensable arm of the ruling establishment. (12) The title of one scholarly study summed it up: Police. Streetcorner Politicians. (13) The dilemma of "law enforcement in a democratic society" (14)--the need not only to endow officials with authority to deploy deadly force but also to preserve democratic control--precipitated a "preoccupation with legitimacy." (15)

         The solution that began to emerge in the 1950s, prominently endorsed in 1967 by the President's Commission on Law Enforcement and the Administration of Justice, was professionalization. (16) Henceforth, police were to be organized and managed as a highly-trained civil service devoted to crime control, and were designed to be "insular, homogeneous, and largely autonomous," with guarantees of independence from politics, and "purposely distanced" from the communities they were assigned to protect. (17) The importance of gaining and holding the community's trust was widely acknowledged, and police leaders typically assumed that trust would flow from legitimacy. But legitimacy came to be identified with professional norms, a military style of leadership, and a detached, reactive mode in which officers responded when called for help but deliberately kept their distance from individuals in the local community. (18)

         The professional model bolstered one sort of democratic legitimacy--political independence--but undermined another--the authority grounded in the needs and preferences of the polity itself. Just at a time when broad grassroots authenticity was becoming the hallmark of democracy, (19) police were reaching for an elite mantle of detached expertise. (20) Once again, their legitimacy suffered.

         Two adjustments were brought to bear. One was substantive: the due process model through which the Warren and Burger Courts reaffirmed constraints on law enforcement power and insisted that they be enforced not only by the police bureaucracy but also by an independent judiciary. (21)

         The other adjustment was strategic. Emphasizing concepts like "community policing" or "problem-oriented policing," law enforcement priorities were recalibrated. (22) Police effort henceforth would be guided (or would claim to be guided) by the expressed preferences of "the community," as revealed in listening sessions at the grassroots and meetings with acknowledged or self-proclaimed community leaders. (23)

         A related model with a significantly different emphasis, "order-maintenance policing" made it a priority for police to address local problems, even those that did not rise to the level of grave crimes. (24) Its widely accepted watchword was that "'[b]roken windows' do need to be repaired quickly." (25) Unlike many versions of community-oriented policing, however, some versions of the order-maintenance approach assigned to the police themselves the responsibility for identifying disorder. Another conception of reform went a step further, from maintaining order to eliminating all forms of disorder. Its message was zero tolerance: even minor misconduct was to be systematically suppressed. Legitimacy would come not from participatory democracy but from effectiveness; police authority would be accepted and respected because it would achieve results.

         Thus, for more than half a century, achieving and maintaining "legitimacy" has been a central preoccupation both for those who support law enforcement and for those who want to constrain it. But legitimacy has been understood in sharply different terms: alternatively constitutional (compliance with the rule of law), political (governance in conformity with community preferences), or instrumental (success in reducing crime). The politically-charged disagreements have produced profound transformations, but one thing largely missing from the debates has been any effort to define precisely what "legitimacy" means or how to measure it empirically. Instead, an apparent consensus about the importance of police legitimacy has masked radically different assumptions about what that is and how it can be achieved.

         Conceptual ambiguity and a failure to study empirical data bearing on issues of broad policing strategy are mirrored in conclusory debates about appropriate tactics for individual officers on the street. The debates, roughly speaking, center on competing preferences for being tough or being fair.

      2. TACTICAL CHOICES: TOUGHNESS VERSUS FAIRNESS

         Tough cops are not automatically unfair, and civil libertarians are not automatically soft, but being tough and being fair are often assumed to be in tension. A perception that police must to choose between them arises almost everywhere in policing and in criminal law generally: street stops, surveillance, Miranda rights, and so on. In each instance, some people feel sure that social protection requires police powers that are unconstrained by procedural niceties, and others are equally convinced that harsh measures, if...