Table of Contents INTRODUCTION I. DEFINING TERMS A. The Problematics of Lawfulness B. Procedural Justice as Fairness II. THEORETICAL FRAME III. SUPPORTING OUR MODEL EMPIRICALLY A. Study Design B. Results 1. Comparing Lawfulness and Procedural Justice 2. When Is Illegality Perceived and Why Punish the Police? 3. Multilevel Modeling 4. Path Modeling IV. IMPLICATIONS INTRODUCTION
When police officers evaluate their own conduct, they typically consider their actions through a prism of lawfulness, asking what the law entitles them to do. (1) Police officers are socialized into this way of thinking in police academies, where recruits memorize hefty volumes that define the legality of various police actions. (2) This learning continues through officers' careers when superiors, as well as state and federal prosecutors, judges, and defense attorneys, evaluate officers' actions by asking whether the police were following the law in any given situation. Law determines whether arrests are valid, whether searches are acceptable, whether shootings are appropriate, and whether the officers' actions are more generally sanctioned. Law is central to the way in which police are evaluated in the course of their everyday work lives. It is natural, then, for the police to approach any interaction with a civilian by focusing on what they are legally entitled to do. When can they stop someone on the street or in a car? When can they search a person? When can they draw a weapon, and when can they use it?
Police officers and those who work most intimately with them impose a framework of legality upon the actions the officers undertake, and the police legitimize their actions through adherence to the law. For example, when a controversy over mosque surveillance erupted in New York City, the mayor defended police actions by calling them "legal," "appropriate," and "constitutional." (3) Similarly, a series of policing practices, including zero-tolerance policing, racial profiling, and aggressive street stops, have all been debated in extensive literatures that are concerned with whether they are legal, appropriate, or constitutional. (4) Individual officers legitimate their actions with respect to lawfulness, too. Irrespective of whether an officer is making an arrest or justifying a shooting, an officer's attention is inevitably directed toward the letter of the law. An officer justifies her actions in terms of law, and the reactions of prosecutors, judges, and police superiors to her actions are defined in the same terms. Lawfulness, then, confers protection and leads to praise and promotion. Unlawful actions, on the other hand, are undone when possible and punished when egregious. Sanctioning flows from such lawfulness evaluations, and officers know that the key to avoiding punishment is to follow the letter of the law.
We argue that members of the public, when deciding whether the police have done wrong and deserve some form of sanctioning, are not particularly sensitive to whether police officers in general or the specific officers they observe and interact with are actually acting in ways that are consistent with constitutional standards. Instead, we believe public judgments about whether police officers were acting unlawfully and should be disciplined for misconduct are largely shaped by people's procedural justice evaluations about the demeanor of the officers during their interactions with them. Data we have collected from an innovative national study supports our position. We presented respondents with fact patterns that represent both constitutionally and unconstitutionally acceptable police behavior. We find that such variations have little influence upon judgments about whether the police have behaved appropriately.
The goal of our study was to improve our ability to identify key factors influencing public views about when police conduct is appropriate or inappropriate. Specifically, we sought to ascertain the relative influence of lawfulness and procedural justice in policing upon public judgments about the appropriateness of police conduct and the need to discipline police officers. Using an innovative factorial experiment incorporating thirty-second videos culled from police training tapes and YouTube.com, we presented videos of real-life interactions of varying intensity between police officers and citizens to our respondents in order to test how citizens perceive and evaluate these types of encounters. (5) Each of our respondents completed a questionnaire and then watched and reacted to three videos after reading manipulated vignettes of real-life police-citizen interactions. The vignettes described the facts of the interactions respondents viewed on the videos and provided information about whether the police were acting in one of three ways: lawfully, unlawfully, or with ambiguous lawfulness. For example, in one case respondents were told that police stopped a motorist who was weaving across the traffic lanes on a highway (i.e., for a lawful reason). In another case, respondents were told that police stopped a person who was driving normally and within the speed limit (i.e., for an unlawful reason). And in the third case, we provided no information about the legal background of the stop.
In our study, perceptions of procedural justice were the most powerful predictors of whether respondents believed that the police had done wrong and deserved some form of sanctioning. In contrast, the actual lawfulness of a police officer's initial conduct in deciding to approach and interact with the person shown had, at best, a minor influence upon people's evaluations of police lawfulness and culpability for subsequent behavior between the person and the officer during the stop. The public, it seems, does not react to the actual lawfulness of either the actions of the police in general or to the lawfulness of the decisions of specific police officers when evaluating their behavior.
Does this mean that the public is indifferent to police legality? Our findings suggest that, on the contrary, the public is strongly influenced by the perceived legality of police actions. However, perceived legality is only marginally connected to actual legality. Whether the police are, in fact, acting legally is not central to the judgments the public makes about the appropriateness of their actions or to the public's desire to punish the police.
This, of course, raises the question of what basis the public has for evaluating police behavior as appropriate. To answer this question, it is important to first note that a great deal of constitutional law is concerned with the justification of a legal actor's decision to take an action (or not). (6) For example, is there a reason for stopping a person, for questioning him, for searching him, etc.? Is it acceptable for an officer to draw her weapon? If so, what type of weapon is justified (fists, club, Taser, gun)? And what level of force is allowable? While these are all legally central issues, they have little to do with the acting officer's demeanor. There are no constitutional standards about how respectfully the police are required to treat citizens. Our findings support the conclusion, however, that police demeanor strongly affects public inferences of legality and the resulting impulse to punish. In particular, a large body of social science research suggests that the public reacts to whether they believe police officers are exercising their authority fairly--something referred to in the literature as procedural justice. (7)
Thus, we argue that there is a fundamental disconnect between the lawfulness frame that characterizes police-thinking about the propriety of their conduct and the procedural fairness frame through which the public evaluates police and their actions. In colloquial terms, legal authorities and the public live in two separate worlds. In the police world, actual lawfulness legitimates the exercise of police authority, and the police punishment is linked to whether their conduct violates the law. In the public world, procedural justice leads to perceived lawfulness, and it is the unfair exercise of police authority that leads to perceived illegality and the desire to punish police. Recognizing this disconnect is the key to understanding many of the problems that arise when police and community residents interact.
The remainder of this Article aims to explain the basis of this disconnect, offer empirical support for our conclusions, and suggest some implications of our research. Definition of terms comes first. The meaning of lawfulness is largely self-evident. In the first Part, we explain why lawfulness can be a problematic yardstick for measuring appropriate police behavior. Procedural justice is the foundation of our model of fairness, and that term likely is not self-evident, so we spend some time explaining that concept in depth. We follow our definitions with a description of a theoretical framework that illustrates the ways in which the procedural fairness of the conduct of authorities can be different from the lawfulness of it. We then lay out evidence from a large-scale experimental survey in an attempt to support this assertion: when people decide whether to punish police officers, they place greater weight upon their evaluations of the fairness of police conduct than upon its objective lawfulness. We conclude with some preliminary implications of the relationship between our findings and theory.
THE PROBLEMATICS OF LAWFULNESS
Law confers upon the state and its authorities, such as police, a monopoly on the use of coercion to enforce laws and maintain order. This idea famously underlies the Weberian notion of legitimacy in the exercise of police authority. (8) Police compliance with the law, then, is one of the most important aspects of law within a democratic society. The rule of law actually goes hand-in-hand with the public's tolerance...