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by Peter Moskos

March 9, 2015

President's Task Force on 21st Century Policing (2): The Problem with Procedural Justice

Three years ago I wrote about the problem of "procedural justice." If you've misplaced your copy of William Stuntz's The Collapse of American Criminal Justice, just read Leon Neyfakh's review in the Boston Globe.

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.
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.
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:
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.
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.
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.


Matt said...

Good stuff. When people of different perspectives can find agreement, that agreement should probably be taken seriously and explored.

The older I get the more weary I grow of procedural justice. I remember being a new cop being surprised and uncomfortable by the reaction of old-time petty crooks when I would cite them for chippy offenses knowing they would never show for court which would in turn generate a warrant 6 weeks later. These old-timers would plead with me to just drive them out of town, give them a decent beating, and let them find their own way back home during which they would reconsider the error of their ways.

Having to figure this out, and having never been a crook, I had to rely on my army days and boot camp. The days of drill sergeants beating privates had long since passed, but I remember thinking that I would have gladly taken the half a dozen punches to the gut I would have earned if the drill sergeants had been able to appropriately deal with the two or three truly problematic recruits.

Of course, this level of discretion (informal control) inherently leads to abuse, so the push for procedural justice is understandable, but then procedural justice leads to a procedural arms race where justice is relatively far from the primary goal... Ugh.

As a cop who every shift wears a badge and drives a car with lights on top, I have come to accept as a success every shift where a modicum of order is maintained (people aren't physically warring or at least not pissing in the street) and the wheels of society haven't fallen off completely.

Moskos said...

Ah, the old-time "beat and release." I'm sure it did once exist. But it always seems to be "just before I got on."

Or maybe it really did end in the 1990s.

There was a related case -- after I quit, mind you -- where two officers got in trouble for leaving two kids a few miles from home. I honestly don't remember the details. But I do remember thinking, "Well, that's a shame. Because there goes the end of that time-honored tradition."

The kids did wrong, weren't arrested, and would be fine.

Of course such extra-legal justice should never happen... since our current social services, jails, and criminal-justice system handle such deviants so well.

Adam said...

Got in trouble? Hell, the Baltimore SAO prosecuted three detectives for kidnapping when they did that a few years ago. (They were convicted of misconduct in office but acquitted of kidnapping).

Matt said...

I think it was winding down in 80s and mostly gone by the 90s. Based on the ages of the crooks talking about this, they would have been most active criminally in the mid-70s to mid-80s.

How is it that people always wax nostalgic about the days of the "cop on the beat" when more often than not, that cop on the beat practiced a form of law enforcement that would not even remotely pass muster today. Willful ignorance? manipulation? or just plain old nostalgia in all of its selective memory blindness? Regardless, it annoys the hell out of me.

Moskos said...

Partly because I think those cops had the knowledge to beat the "right people." The law doesn't allow for the fact that sometimes somebody deserves a bit of a beatdown.

From my experience, both the people I policed and the people I policed with generally shared the old-school belief that if you do something bad, you deserve a bit of a beating, or at least the threat of one.

I can't tell you how many old black men urged me to beat the crap out of those young black drug dealers on the corner. (I didn't) Pops knew damn well another arrest wasn't going to solve anything.

It's the new-school, mostly outsiders and liberal, who say physical punishment/discipline is never OK. And they write the laws.
Perhaps back then the extralegal justice was administered in proportion to the crime (when done right). This wasn't arbitrary justice so much as discretionary -- albeit illegal -- justice.

I'm not convinced this was right, but I'm also not convinced the current system of procedural justice is better.

I think what people miss is cops who actually had a better inkling of the people in neighborhood. Not just the worst offenders (cops do know them, by and large) and not just the constantly fighting couple. I think cops had real sense of neighborhood dynamics. Now everybody is just a "gang member."

And no doubt some of it is just willful nostalgia and selective memory blindness. There was a lot more crime *and* police brutality back then.

Jay Livingston said...

Beating up bad people satisfy the sense of substantive justice of everyone involved -- the cop, the old dudes on the corner, maybe even the bad guy. But is there any evidence of it as a tool of reducing crime? And these days it also runs the risk of being recorded and shown to people who do not share the cops' perspective. Also, I would guess that when cops think that beating bad people is OK, they broaden the defintion of who is bad (e.g., peaceful but obnoxious demonstrators) and how serious a beating is legitimate. Combine that broadening with a citizenry who are all carrying documentary film equipment in their pocket, and you got trouble my friends.

Moskos said...

I'm not seriously proposing we return to the "beat and release." But I did write a book called "In Defense of Flogging."

Of course there's no evidence that corporal punishment reduces crime. But there sure is evidence that incarceration *increases* criminal behavior.

So no, I don't think moving from informal discretionary physical punishment to the status quo emphasis on procedural justice or arrest, a criminal record, and jail has benefited society, victims, or criminals.

Anonymous said...

One quibble: the US seems to have done better with the BoR than the French have done with the Declaration of the Rights of Man. We've had a pretty steady upward curve of better treatment of people (abolishing slavery, extending the franchise, etc), while the French have had at best a sine-wave (low points including the Directorate/Terror, First and Second Empires, Vichy, etc).
- John Mosby