Legitimacy and federal criminal enforcement power.

• Author: Ouziel, Lauren M.
• Position: II. Legitimacy and Criminal Enforcement through III. Legitimacy, Street Crime, and the Federal Justice System B. The Public: Authority and Community Interaction, p. 2268-2301

2. LEGITIMACY AND CRIMINAL ENFORCEMENT

   The concept of "legitimacy" in governance, and in criminal enforcement in particular, has received sustained and deep engagement over the last several decades by social psychologists, criminologists, and legal theorists. As a result, there is now a rich body of theoretical and empirical literature that helps us to understand what factors influence perceptions of legitimacy in law enforcement.

   The work of Tom Tyler and others demonstrates that people comply with the law in large part out of a sense of obligation to the authorities enforcing the law ("legitimacy"), as well as because the law comports with their own personal conceptions of right and wrong ("personal morality). (114) In studies that have compared the influence on compliance of various attitudinal and background factors, legitimacy and personal morality proved to be among the most significant. (115) By contrast, the threat of sanction was among the least influential factors. (116) The relative unimportance of instrumental motivations might explain why people continue to commit crimes despite the threat of harsh punitive sanctions. (117)

   These two aspects of compliance--"legitimacy" and "personal morality--have spawned two largely separate bodies of literature. (118) The former asks what factors influence people's support for and obligation to the governing authorities, while the latter asks which crimes, theories of liability, theories of defense, and penalties most comport with public conceptions of right and wrong. Research has shown that people's perceptions of an authority s legitimacy are influenced most by their perceptions of the fairness of the process and procedures by which it enforces the law. (119) This theory of compliance has thus come to be known as "procedural legitimacy." The extent to which substantive law aligns with personal morality has been described alternatively as "moral credibility," "moral alignment," or "empirical desert." (120) Both theories concern the ability of governing authorities to harness voluntary compliance, cooperation, and deference, as opposed to coercing it through threat of sanction.

   1. Procedural Legitimacy

      What factors influence perceptions that an authority is legitimate? Substantial qualitative research suggests that, in interactions with the courts and police, people place greater value on the process of their interaction with criminal justice authorities and the motives of those authorities than on whether the outcome of the interaction is ultimately fair or favorable to them. (121) These two factors--termed "procedural justice" and "motive-based trust--have been shown to significantly shape citizens' perceptions of the legitimacy of legal authorities. (122) Procedural justice and motive-based trust influence people's overall views of the legitimacy of criminal justice authorities (courts and police), as well as their willingness to defer to and cooperate with those authorities in a particular case. (123)

      What personal traits influence perceptions of legitimacy? Age, race or ethnicity, gender, education, income, and political affiliation, among other things, each have an impact; yet when isolated, the influence of each of these background characteristics is relatively minor. (124) Research further suggests that across racial and ethnic groups, procedural justice, rather than outcomes, is the key predictor of perceived legitimacy; (125) lower perceptions of legitimacy among minorities can be traced to feelings of unfair treatment rather than outcomes. In addition, personal identification with the group or entity through which authority is exercised ("superordinate identification") has been shown to have significant impact on evaluations of authority and perceptions of legitimacy. (127)

      Procedural legitimacy has tremendous promise for governance in general and criminal justice in particular because it enables governance based on the public's trust. A legitimate authority has the diffuse support of those whose behavior it regulates, a construct often described as a "reservoir" of trust or goodwill. (128) Such diffuse support, in turn, allows the authority to impose and effectuate unfavorable outcomes on those adjudged guilty of wrongdoing. Diffuse support also gives the authority discretionary latitude to regulate within a range of behavior, even when the regulation is at odds with the moral beliefs of some (or even many) members of the community. (129) Procedural legitimacy is thus particularly important in a pluralistic society with diverse moral beliefs.

      Legitimacy is self-reinforcing, as is its absence. Research has shown that preexisting conceptions of an authority's legitimacy influence compliance, deference, and cooperation, which in turn enhance the authority's ability to govern fairly, further reinforcing its legitimacy. (130) By contrast, preexisting perceptions of illegitimacy result in noncompliance and refusal to cooperate and defer, breeding more crime and hindering the criminal justice system's ability to enforce the law-often resulting in resort to force or other methods that further erode legitimacy. (131) Legitimacy is self-reinforcing in another sense too: people who perceive the criminal justice system as legitimate are more likely to be influenced by process concerns than instrumental concerns in their interactions with the justice system. (132) Put differently, legitimacy moves people to value process over outcome, while illegitimacy moves people to value outcome over process. In a system in which unfavorable outcomes are inevitable, illegitimacy thus creates "a spiral of increasing conflict and decreasing legitimacy." (133)

   2. Moral Credibility

      Empirical research indicates that people are more likely to comply with laws with which they agree (134) and more willing to defer to and' assist authorities they view as enforcing just laws. (135) Substantive law that does not reflect the community's norms is ultimately unsustainable because effective law enforcement depends on the cooperation and respect of those within its ambit (witnesses, victims, jurors, judges, prosecutors, and defendants). (136)

      Moral credibility's limitations are obvious. What if the moral convictions of a society's members are dissonant? (137) What if social norms depart from philosophical and ethical conceptions of justice? (138) For moral legitimists, these limitations arise from the law's own inability to shift community norms. While the criminal law "sometimes nurtures the norm[s]" through prosecution and enforcement, "[t]he criminal law is not an independent player in that process, but merely "a contributing mechanism." (139) Accordingly, for a society to function effectively, it must derive both moral and procedural legitimacy. That is, it must strive to enact laws with which the public largely agrees and, in the absence of societal agreement, it must be able to draw on the public's support for its institutions as the final arbiters of what the law should be. (140)

   3. Legitimacy and Criminal Adjudication

      In the context of criminal investigation and adjudication, work on procedural legitimacy has primarily focused on how the criminal process affects perceptions of legitimacy. (141) In fact, though, criminal adjudication has a dual function: it both affects and reflects legitimacy.

      Begin with the criminal jury. Empirically assessing the factors motivating jurors decisionmaking is exceedingly difficult; defendants' due process rights limit the means and methods by which researchers can investigate jurors' pretrial attitudes and predilections, (142) jurors themselves may be unaware of the factors influencing their reasoning, (143) and the interaction of both known and unknown variables obscures attempts to isolate and control for them. (144) Nevertheless, the empirical work on juries, for all its limitations, tends to support what criminal practitioners intuit: jurors' assessment of the evidence, and predisposition to the prosecution, is guided in part by their perceptions of the legitimacy of the pertinent laws and legal authorities. On the whole, jurors who report trust and confidence in the police are more likely to be predisposed to the prosecution in a local criminal case. (145) So, too, are jurors who believe the applicable laws, and the consequences of conviction, to be fair. (146)

      The criminal jury, though, is only the beginning of legitimacy's measure. As others have pointed out, the adjudication of criminal cases serves an expressive function. (147) It tells us what conduct is actually prohibited, and what level of opprobrium we accord that conduct. The legislature defines crimes, but prosecutors decide whether to charge those crimes. Likewise, the legislature ascribes penalties for crimes; but prosecutors decide, by virtue of the charges they bring, which penalties will apply, and judges decide what specific sentence will be imposed in a given case. And in a system that functions almost entirely through plea-bargaining, prosecutors' decisions-which cases to charge, what charges to bring, and...