Procedural justice still matters because the Presidential Report places emphasis on it: "Police and sheriffs' departments should adopt procedural justice as the guiding principle for internal and external policies and practices to guide their interactions with the citizens they serve." I disagree.
Now procedural justice seems like something that is hard to be against. But one opposite of procedural justice isn't arbitrary justice but moral justice. If one emphases moral justice over procedural justice, you're saying police and the criminal justice system shouldn't just be judged on following the rules.
Sometimes you need discretion and the ability to bend the rules -- to break procedure -- to do the right thing. I write about this in Cop in the Hood at the start of Chapter 6. [Long story short: Grandmother hits 17-year-old grandson she is the legal guardian of because, well, she had good reason. He calls police to report this assault. I do not arrest grandma. Instead I threaten to arrest this "kid".] As a police officer, whenever I could, I used my discretion to value moral justice over procedural justice. (Not that I would have phrased it that way at the time. I was just "doing the right thing.")
Adam Gopnik of the New Yorker, a big fan of my writing, also described the issue:
“The Collapse of American Criminal Justice,” was published, last fall, is the most forceful advocate for the view that the scandal of our prisons derives from the Enlightenment-era, “procedural” nature of American justice.... In a society where Constitution worship is still a requisite on right and left alike, Stuntz startlingly suggests that the Bill of Rights is a terrible document with which to start a justice system--much inferior to the exactly contemporary French Declaration of the Rights of Man.There's also Alex Vitale's critique of the Presidential Task Force in The Nation. Now Alex and I disagree about many police issues (such as Broken Windows), but I like people I disagree with. And he makes this point well:
The trouble with the Bill of Rights, [Stuntz] argues, is that it emphasizes process and procedure rather than principles. The Declaration of the Rights of Man says, Be just! The Bill of Rights says, Be fair! Instead of announcing general principles--no one should be accused of something that wasn’t a crime when he did it; cruel punishments are always wrong; the goal of justice is, above all, that justice be done--[the Bill of Rights] talks procedurally. You can’t search someone without a reason; you can’t accuse him without allowing him to see the evidence; and so on. This emphasis, Stuntz thinks, has led to the current mess, where accused criminals get laboriously articulated protection against procedural errors and no protection at all against outrageous and obvious violations of simple justice. You can get off if the cops looked in the wrong car with the wrong warrant when they found your joint, but you have no recourse if owning the joint gets you locked up for life. You may be spared the death penalty if you can show a problem with your appointed defender, but it is much harder if there is merely enormous accumulated evidence that you weren’t guilty in the first place and the jury got it wrong.
Today’s Task Force falls into this same trap.... Such procedural reforms focus on training officers to be more judicious and race-neutral in their use of force and how they interact with the public.Thinking about it another way, punishing Ferguson cops who write racist emails on the job is certainly the right thing to do, but blaming cops will do next to nothing to change an unjust system in which police officers are mere pawns.
Similar goals were set in the late 1960s.... Similarly, Johnson’s initial draft of the 1968 Safe Streets bill called for resources to be devoted to recruitment and training of police, modernization of equipment, better coordination between criminal-justice agencies, and innovative prevention and rehabilitation efforts, and had the support of the ACLU and other liberal reform groups.... Over the next decade, the result was a massive expansion in police hardware, SWAT teams and drug enforcement units, and almost no money towards prevention and rehabilitation.
...Community policing also tends to turn all neighborhood problems into police problems.... The tools that police have for solving these problems, however, are generally limited to punitive enforcement actions such as arrests and ticketing.
By conceptualizing the problem of policing as one of inadequate training and professionalization, reformers fail to directly address the ways in which the very nature of policing and the legal system served to maintain and exacerbate racial inequality. By calling for color-blind “law and order,” they in essence strengthen a system that puts people of color at a structural disadvantage.
What is not discussed in the report is dialing back in any meaningful way the war on drugs, police militarization or the widespread use of "broken windows" policing that has led to the unnecessary criminalization of millions of mostly black and brown people. Well-trained police, following proper procedure, are still going to be engaged in the process of arresting people for mostly low-level offenses, and the burden of that will continue to fall primarily on communities of color, because that is how the system is designed to operate--not because of the bias or misunderstandings of officers. A more respectful and legally justified arrest for marijuana possession is still an arrest that could result in unemployment, loss of federal benefits and the stigma of a drug arrest.
We cannot produce true justice by reforming police procedures. Instead, we need to call into question why we have come to rely so heavily on the police to manage social problems.