ssrn | What should we make of this? At least three points are important:
First, people’s ordinary intuitions about rightful police behavior do not comport with the law. That is, people do not seem to care very much at all about police adherence to constitutional rules when assessing whether the police should be punished. They care instead primarily about the procedural justice and fairness of the way the police act when dealing with people in the community. This could result from at least two conditions. The first condition is one in which people are aware both of legality and fairness factors, but consciously choose to credit fairness over legality. A second condition is one in which people choose fairness over legality because they are unaware of -- or perhaps more precisely -- untutored in legality. If this condition holds, then we would expect people’s assessments of legality and fairness to be coextensive.
To put this point another way, people rely on fairness to evaluate police conduct because they do not know the law. On this account procedural justice is a kind of “everyday lawyering.”62 As best we can tell, the second condition is a better descriptor of our data.63 People do not know the law and apparently judge police behavior with reference to their procedural justice judgments.
Second, that people “know” fairness and not the law means, we think, that it is extremely important to separate lawfulness from unlawfulness on the one hand, and fairness and unfairness on the other while specifying a relationship among them as we do in the model presented above. Perhaps the most important reason to do this is that police are creatures of law and are trained in it. Police are not everyday lawyers. They strive to conform their behavior to set of norms and scripts heavily influenced by formal law.
The bifurcation we see on the spectrum of evaluations that ordinary people make regarding police behavior represents a social psychological disjuncture in police-citizen engagement that is damaging to citizens, counterproductive for policing agencies and ultimately inconsistent with the police accountability project that is critical to so many cities today. Of course, one way to respond
to the fact that citizens are unaware of the law is to educate them about constitutional law in the hope that they may comport their internal assessment processes in ways that are much more consistent with articulated law. To be blunt, this is likely a fool’s errand. The resources involved would be enormous, and the project bumps up against the natural inclination that people have to choose evaluative methods that are consistent with and affirm their social identity.
Constitutional law, as it is currently composed, does not emphasize the importance of quality of police treatment, but rather places a premium on the police officer’s intention when she decides to exercise her discretion to engage someone. The values that the law protects are not those that ordinary folks, at least in this area, regularly look to when constructing individual or group identity as decades of social psychology make clear. Nothing about constitutional law prohibits a police officer from being rude, and very little of constitutional criminal procedure promotes the kinds of dignity concerns that people tend to care about.
Indeed, as our review of the constitutional imperative of suspicion which highlights much of the law is even at odds with concerns about human dignity.64 When the police deal with people in the community their legal framing encourages them to look at people as potentially engaged in “suspicious” activity. It is identifying signs of such activity that justifies police officer intervention into people’s life. Hence, when people deal with the police their experiences are tinged with mistrust and a demeaning tone. The police already suspect those they deal with are “up to no good” and they adopt the tone on inquisitors to gather data in support of these suspicions.
One possible reform strategy is to advocate change in the legal rules that shape police conduct – perhaps along the lines that Bill Stuntz has suggested.65 We worry that this approach is an exercise in futility. Thus, we may be better served by educating police officers about procedural justice. Police officers need to comport their behavior with constitutional rules, yes, but they also need to be encouraged to treat people with dignity and respect regardless of whether the rules require it.
Third, that the approach we have outlined likely leads to safer streets is only one of its benefits. As British legal scholar, Neil Walker, notes “the police are both minders and reminders of community – a producer of significant messages about the kind of place that community is or aspires to be.” Taking Walker seriously promotes an understanding of the policing enterprise that is different from is different from the usual conception that emphasizes solution of collective action problems, which in turn emphasizes police primarily as crime control agents. We do not doubt the positive benefits of policing agencies casting themselves as necessary utilities for the production of safe, functioning communities akin to well-lit streets, clean water, and cheap, widely available electricity. One must be careful in making the public utility analogy,
however. A consequential conception of a public good, which the utility analogy clearly is, conceives of production of the good as one that can be enjoyed by individuals and aggregated up, so to speak. Thus its benefits – and costs – can always be assessed in terms of efficiencies at the individual level, and it is possible to imagine the good’s production by some entity other than the state.
We think our account of the way in which people assess the rightfulness of policing behavior is more consistent with Waldron’s account of a public good which acknowledges that "no account of [its] worth to anyone can be given except by concentrating on what [it is] worth to everyone together." Truly good policing then, is enjoyed by all people in common whether or not they experience positive outcomes as individuals. Generation of it is “wholly, directly and reciprocally dependent upon its simultaneous generation for and enjoyment by certain others.”66
We can go further and say that our argument not only implies a demand for policing that is assertedly social as Waldron suggests, but constitutive, too, in the way that Ian Loader and Neil Walker claim. It is not enough for policing to simply solve collective action problems associated with the project of crime reduction. Policing also can and should play a role in the production of positive feelings of self-identity that helps to “construct and sustain our ‘wefeeling’—our very felt sense of common publicness.”67 Legitimacy, then, can be a key driver of a healthy and properly functioning democratic government. We need to do more work to fully justify this last potentially normative claim. No doubt many are made uncomfortable by the notion that police should be involved in this work. What we know, however, is that they are involved in it. The empirical distinctions we demonstrate between lawfulness assessments of police conduct on the one hand and fairness assessments on the other, powerfully suggest that people understand police treatment of citizens in the constitutive manner that Loader and Walker describe.
The focus that people place upon the procedural justice of police actions points first to the potentially negative consequences of an exclusive focus on lawfulness. If the police are not cognizant of and responsive to public concerns they are blind to the source of public feelings that police actions are inappropriate and should be sanctioned. Further, the police miss the opportunity to be involved in the broader effort to build people’s ties to their communities that build healthy and vibrant communities that are both more open to cooperation with the police and better able to generate the types of social and other forms of capital that can help communities to “build their way out of crime”.68
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