ABSTRACT. In police reform circles, many scholars and policymakers diagnose the frayed relationship between police forces and the communities they serve as a problem of illegitimacy, or the idea that people lack confidence in the police and thus are unlikely to comply or cooperate with them. The core proposal emanating from this illegitimacy diagnosis is procedural justice, a concept that emphasizes police officers' obligation to treat people with dignity and respect, behave in a neutral, nonbiased way, exhibit an intention to help, and give them voice to express themselves and their needs, largely in the context of police stops. This Essay argues that legitimacy theory offers an incomplete diagnosis of the policing crisis, and thus de-emphasizes deeper structural, group-centered approaches to the problem of policing. The existing police regulatory regime encourages large swaths of American society to see themselves as existing within the law's aegis but outside its protection. This Essay critiques the reliance of police decision makers on a simplified version of legitimacy and procedural justice theory. It aims to expand the predominant understanding of police mistrust among African Americans and the poor, proposing that legal estrangement offers a better lens through which scholars and policymakers can understand and respond to the current problems of policing. Legal estrangement is a theory of detachment and eventual alienation from the law's enforcers, and it reflects the intuition among many people in poor communities of color that the law operates to exclude them from society. Building on the concepts of legal cynicism and anomie in sociology, the concept of legal estrangement provides a way of understanding the deep concerns that motivate today's police reform movement and points toward structural approaches to reforming policing.
ESSAY CONTENTS INTRODUCTION 2057 I. THE BLIGHT OF POLICE DISTRUST IN AFRICAN AMERICAN COMMUNITIES 2068 II. TWO DIAGNOSES 2073 A. A Crisis of Legitimacy 2073 B. A Crisis of Estrangement 2083 III. THE LEGAL SOCIALIZATION OF SHAWNA 2089 IV. A TRIPARTITE THEORY OF LEGAL ESTRANGEMENT 2100 A. Procedural Injustice 2100 B. Vicarious Marginalization 2104 C. Structural Exclusion 2114 V. DISMANTLING ESTRANGEMENT 2126 A. Using Federal Tools To Change Local Practices 2128 B. Paying the Police 2131 C. Reorganizing the Police 2136 D. Raising the Stakes of Fourth Amendment Jurisprudence 2139 E. Democratizing the Police 2143 F. Shrinking & Refining the Footprint of the Police 2147 CONCLUSION 2149 INTRODUCTION
In the concluding paragraphs of her fiery dissent in Utah v. Strieff, (1) Justice Sotomayor invoked W.E.B. Du Bois, James Baldwin, Michelle Alexander, Ta-Nehisi Coates, and Marie Gottschalk in concluding that the Court's decision, which further weakened the power of the exclusionary rule to deter unconstitutional police conduct, (2) sent a message--particularly to people of color--"that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged." (3) Justice Sotomayor laments "treating members of our communities as second-class citizens." (4) Yet despite the boldness of her statements, in some ways Justice Sotomayor might not have gone quite far enough in articulating the troubling implications of our Fourth Amendment jurisprudence.
Justice Sotomayor's analysis understates the problem on two fronts. First, in addition to the jurisprudential message that poor people of color are "subject[s] of a carceral state" or "second-class citizens," research in sociology, criminology, political science, and other fields suggests that these groups often see themselves as essentially stateless--unprotected by the law and its enforcers and marginal to the project of making American society. Even as criminal procedure jurisprudence sets the parameters of what police may do under the law, it simultaneously leaves large swaths of American society to see themselves as anomic, subject only to the brute force of the state while excluded from its protection. The message conveyed in policing jurisprudence is not only one of oppression, but also one of profound estrangement.
A second understatement relates to the understanding of whose safety is at risk when the Fourth Amendment insufficiently checks the power of the police. Justice Sotomayor uses the second-person pronoun "you" to convey to a public audience both the universality and the personal proximity of the risk of police control. (5) Yet this literary technique, though effective, obscures the reality that the sense of alienation in a carceral regime emanates not only from what police might do to "you," but from what they might do to your friends, your intimate partners, your parents, your children; to people of your race or social class; and to people who live in the neighborhood or the city where you live. In other words, estrangement from the American citizenry is not merely an individual feeling to which people of color tend to succumb more readily than white Americans do; rather, estrangement is a collective institutional venture.
The Black Lives Matter era has catalyzed meaningful discussion about the tense relationship between the police and many racially and economically isolated communities, and about how policing can be reformed to avoid deaths like those of Rekia Boyd, Michael Brown, Eric Garner, Alton Sterling, Philando Castile, and more. However, contemporary discourse has often neglected or obscured deeper discussion about the relationship between African Americans--especially poor African Americans--and the police. What is the nature of these relationships? How can scholars and policymakers more roundly understand their contours and potential strategies for change?
Many scholars and policymakers have settled on a "legitimacy deficit" as the core diagnosis of the frayed relationship between police forces and the communities they serve. The problem, this argument goes, is that people of color and residents of high-poverty communities do not trust the police or believe that they treat them fairly, and that therefore these individuals are less likely to obey officers' commands or assist with investigations. (6) This argument took its most prominent position in the May 2015 Final Report of the White House Task Force on 21st Century Policing. The Report sets forth the goal of building trust and legitimacy as both the first pillar of its proposed approach to police reform and as "the foundational principle underlying [the Task Force's] inquiry into the nature of relations between law enforcement and the communities they serve." (7) "Trust" is a broad term, but the Report and much of the policymaking energy surrounding shifts in police governance adopt an understanding of trust that treats it as virtually synonymous with legitimacy. (8)
Ample empirical evidence supports the idea that African Americans, and residents of predominantly African American neighborhoods, are more likely than whites to view the police as illegitimate and untrustworthy, along several axes. (9) Empirical evidence suggests that feelings of distrust manifest themselves in a reduced likelihood among African Americans to accept law enforcement officers' directives and cooperate with their crime-fighting efforts. (10) According to much of this line of scholarship, the primary tool to achieve greater obedience to the law and law enforcement, regardless of race, is procedural justice: police officers treating people with dignity and respect, behaving in a neutral, nonbiased way, exhibiting an intention to help, and giving people voice to express themselves and their needs in interactions. (11)
Yet many reformers would likely disagree that obedience to law enforcement is the central concern in America's current conversation on police reform. Indeed, in many of the cases that have most catalyzed the Black Lives Matter movement, the victims of police violence were not disobeying the law, (12) were complying with officers' demands, (13) or were suspected of violating petty laws that are likely unworthy of strong enforcement efforts or penalties. (14) A large body of scholarship on criminal justice attempts to denaturalize the assumed link between obeying the law and criminal justice contact. (15) Scholars have shown that recent trends in criminal justice such as pervasive stop-and-frisk, increased misdemeanor prosecution, and mass incarceration are not primarily consequences of increases in criminal offending. Instead, these scholars suggest that the American criminal justice system has dual purposes, only one of which is crime response and reduction. Its other, more insidious function is the management and control of disfavored groups such as African Americans, Latin Americans, the poor, certain immigrant groups, and groups who exist at the intersection of those identities. (16) From a social control perspective, increasing compliance and cooperation with law enforcement may well be valuable aims, but they should not be at the root of police reform efforts. Deploying legitimacy theory and procedural justice as a diagnosis and solution to the current policing crisis might even imply, at some level, that the problem of policing is better understood as a result of African American criminality than as a badge and incident of race- and class-based subjugation.
Reformers' emphasis on police legitimacy has caused them to focus heavily on training of frontline officers to behave in a procedurally just manner during stops, with a goal of promoting legitimacy. The White House report, for example, names training and education of frontline officers as Pillar Five of a six-pillar approach, and training is mentioned as an "action item" under all of the five other pillars. (17) Numerous news reports, professional reports, and articles in professional magazines tout procedural justice as the key intervention that will resolve the problems...