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What Is Procedural Justice

Procedural Justice

Procedural justice speaks to the idea of fair processes, and how people’s perception of fairness is strongly impacted by the quality of their experiences and not only the end result of these experiences. Procedural justice theory has been applied to various settings, including supervisor-employee relations within organizations, educational settings, and the criminal justice system. In the criminal justice context, most procedural justice research has focused on citizen-police interactions.

Think about this setting for a moment: a driver is stopped by a police officer. What determines the driver’s perception of this experience? Extensive research has shown that the driver’s perception of the quality of this encounter depends less on its outcome, that is, on whether they have received or not a ticket, and more on whether they felt treated in a “procedurally just” way.

Individuals’ perceptions of procedurally just encounters are based on four central features of their interactions with legal authorities:

  1. Whether they were treated with dignity and respect;
  2. Whether they were given voice;
  3. Whether the decision-maker was neutral and transparent; and
  4. Whether the decision-maker conveyed trustworthy motives.

For decades, our research has demonstrated that procedural justice is critical for building trust and increasing the legitimacy of law enforcement authorities within communities. As such, it has paramount implications for both public safety and officer efficacy. While highly publicized abuses of authority by police officers fuel distrust and erode legitimacy, less publicized, day-to-day interactions between community members and law enforcement are also influential in shaping people’s long-term attitudes toward the police.

In recent years, as the body of research on procedural justice grew, it became evident that with training, the concept can take hold at both the individual and organizational level. Procedural justice furthers agencies’ efforts to restore strained community relationships by laying the groundwork for legitimacy. Certainly, police officers are granted legal legitimacy in the sense that they are legally authorized to perform their duties. However, in the context of procedural justice, legitimacy refers to the extent to which an organization and its agents are perceived as morally just, honest, and worthy of trust and confidence. Perceptions of legitimacy, therefore, improve compliance and cooperation through improved attitudes toward police. As a result, procedural justice is a powerful tool in improving public safety.

Four Pillars of Procedural Justice


Voice: Individuals are given a chance to express their concerns and participate in decision-making processes by telling their side of the story

Respect: All individuals are treated with dignity and respect

Neutrality: Decisions are unbiased and guided by consistent and transparent reasoning

Trustworthiness: Decision-makers convey trustworthy motives and concern about the well-being of those impacted by their decisions.

Procedural justice focuses on the way police and other legal authorities interact with the public, and how the characteristics of those interactions shape the public’s views of the police, their willingness to obey the law, and actual crime rates. Mounting evidence shows that community perceptions of procedural justice can have a significant impact on public safety.

Procedural justice is based on four central principles: “treating people with dignity and respect, giving citizens ‘voice’ during encounters, being neutral in decision making, and conveying trustworthy motives.”  Research demonstrates that these principles contribute to relationships between authorities and the community in which 1) the community has trust and confidence in the police as honest, unbiased, benevolent, and lawful; 2) the community feels obligated to follow the law and the dictates of legal authorities, and 3) the community feels that it shares a common set of interests and values with the police.

Procedurally just policing is essential to the development of good will between police and communities and is closely linked to improving community perceptions of police legitimacy, the belief that authorities have the right to dictate proper behavior. Research shows that when communities view police authority as legitimate, they are more likely to cooperate with police and obey the law.  Establishing and maintaining police legitimacy promotes the acceptance of police decisions, correlates with high levels of law abidingness, and makes it more likely that police and communities will collaborate to combat crime. 

A key component of the research is that the public is especially concerned that the conduct of authorities be fair, and this factor matters more to them than whether outcomes of particular interactions favor them. This means that procedurally just policing is not consonant with traditional enforcement-focused policing, which typically assumes compliance is a function primarily of emphasizing to the public the consequences—usually formal punishment—of failing to follow the law. Policing based on formal deterrence encourages the public’s association of policing primarily with enforcement and punitive outcomes.  Procedurally just policing, on the other hand, emphasizes values that police and communities share—shared values based upon a common conception of what social order is and how it should be maintained—and encourages the collaborative, voluntary maintenance of a law-abiding community. Research indicates that this latter approach is far more effective at producing law-abiding citizens than the former. This makes intuitive sense— people welcome being treated as equals with a stake in keeping their communities safe, as opposed to being treated as subjects of a capricious justice system enforced by police who punish them for ambiguous, if not arbitrary, reasons.

Taking measures to enhance procedural justice within law enforcement agencies is becoming increasingly possible. Professor Tracey Meares and Professor Tom Tyler of Yale Law School have worked with the Chicago Police Department and others to create a one-day training for line officers and command staff that teaches them how to apply powerful procedural justice principles to their routine contacts with the public. The officers reportedly like it and evaluate it positively, as it improves not only public safety but their own. Indeed, there are many good reasons to cultivate a respectful relationship between police and communities, but the most important is that communities in which police are considered legitimate are safer and more law-abiding.

RESEARCH

La Vigne, N., Fontaine, J., & Dwivedi, A. 2017. How Do People in High-Crime, Low-Income Communities View the Police?. Urban Institute. https://nnscommunities.org/uploads/how_do_people_in_high-crime_view_the_police.pdf

Tyler, T., & Fagan, J. (2008). Legitimacy and Cooperation: Why Do People Help the Police Fight Crime in Their Communities?. 6 Ohio State J. Crim. L. 231.

Bradford, B., Sergeant, E., Murphy, K., & Jackson, J. (2015).  A Leap of Faith? Trust in the Police Among Immigrants in England and Wales. Br J Criminol 2017; 57 (2): 381-401. doi: 10.1093/bjc/azv126.

Meares, T. (2009). The Legitimacy of Police Among Young African-American Men. Marquette Law Review, 92(4) 651-666

Bradford, Ben. (2014). Policing and Social Identity: Procedural Justice, Inclusion and Cooperation Between Police and Public. Policing and Society, 24:1, 22-43, DOI: 10.1080/10439463.2012.724068 

Meares, T.L., Tyler, T.R. & Gardener, J. (in press).The two different worlds we live in: Lawfulness and perceived police misconduct.

Kohler-Hausmann, I. (2014). Managerial justice and mass misdemeanors. Stanford Law Review, 66(3), 611-692.

The Sentencing Project. Disproportionate minority contact.

Tyler, T.R. & Jackson, J. (2014). Popular Legitimacy and the Exercise of Legal Authority: Motivating Compliance, Cooperation and Engagement. Psychology, Public Policy and Law, 20, 78-95. 

David Von Drehle, Alex Altman (2014, September 1).  Inside the Tragedy of Ferguson. Time Magazine.

Lee, C.G., Cheesman, F., Rottman, D., Swaner, R., Lambson, S., Rempel, M. & Curtis, R. (2014). A Community Court Grows in Brooklyn: A Comprehensive Evaluation of the Red Hook Community Justice Center Final Report. Williamsburg, VA: National Center for State Courts.

Kates, Graham (2014, September 6). The crisis of confidence in police-community relations.  The Crime Report.

Jackson, Jonathan, Bradford, Ben, Kuha, Jouni and Hough, Mike (2014) Empirical legitimacy as two connected psychological states in Mesko, G. and Tankebe, J., (eds.) Improving Legitimacy of Criminal Justice in Emerging Democracies.  London: Springer.

Durrant, M.B. (January 27, 2014).  2014 State of the judiciary address: Utah State Courts.

Elijah Anderson (2014, August 13).  What caused the Ferguson riot exists in so many other cities, too.  The Washington Post.

Kates, Graham (2014, September 5).  Melekian: Give beat cops a voice in community policing.  The Crime Report

Meares, T.L. (2014, August 22). Ferguson’s schools are just as troubling as its police force. New Republic.

Rosenfeld, R., Fornango, R. (2014). The Impact of Police Stops on Precinct Robbery and Burglary Rates in New York City, 2003-2010. Justice Quarterly, 31, 132–158. 

Tyler, T.R.  (March, 2014).  Legitimacy and procedural justice: A new element of police leadership.  Police Executive Research Forum.

Anderson, Elijah (2014, August 13).  What caused the Ferguson riot exists in so many other cities, too.  Washington Post.

La Vigne, N. G., Lachman, P., Rao, S., Matthews, A. (2014). Stop and Frisk: Balancing Crime Control with Community Relations. U.S. Department of Justice, Office of Community Oriented Policing Services. 

Tyler, T.R., Fagan, J. & Geller, A. (2014).  Street stops and police legitimacy: Teachable moments in young urban men’s legal socialization. New Haven: Yale Law School.

United States Department of Justice (June 12, 2013).  Statement of interest of the United States in Floyd v. City of New York.  In United States District Court, Southern District of New York.

Levin Wheller, Paul Quinton, Alistair Fildes & PC Andy Mills.  (2013).  The greater Manchester Police procedural justice training experiment.  UK: College of Policing.

Wemmers, J.M. (2013).  Victims’ experiences in the criminal justice system and their recovery from crime.  International Review of Victimology, 19, 221–233.

Reisig, M.D., Tankebe, J. & Mesko, G. (2013).  Compliance with the law in Slovenia: The role of procedural justice and police legitimacy.  European Journal of Criminal Policy Research, 20(2), 259-276.

Goldstein, J. (August 12, 2013). Judge Rejects New York’s Stop-and-Frisk PolicyThe New York Times. 

Murphy, K. (2013).  Does procedural justice matter to youth?  Policing and Society, 25(1), 53-73.

Mazerolle, L., Bennett, S., Davis, J., Sargeant, E. & Manning, M. (2013a). Procedural justice and police legitimacy: A systematic review of the research evidence.  Journal of Experimental Criminology, 9(3), 245-274.

Mazerolle, L., Bennett, S., Davis, J. Sargeant, E. & Manning, M. (2013b).  Legitimacy in policing: A systematic review.  Oslo, Norway: The Campbell Collaboration

Listwan, S.J., Sullivan, C.J., Agnew, R., Cullen, F.T. & Colvin, M.  (2013). The pains of imprisonment revisited: The impact of strain on inmate recidivism.  Justice Quarterly, 30(1), 144-168.

Kopenovich, S., Yanos, P., Pratt, C. & Koerner, J. (2013).  Procedural justice in mental health courts: Judicial practices, participant perceptions, and outcomes related to mental health recovery.  International Journal of Law and Psychiatry, 36, 113-120.

Jackson, J., Bradford, B., Stanko, B. & Hold, K. (2013).  Just authority?: Trust in the police in England and Wales. London: Routledge.

Jackson, J., Huq, A.Z., Bradford, B. & Tyler, T.R. (2013). Monopolizing force? Police legitimacy and public attitudes toward the acceptability of violence.  Psychology, Public Policy and Law, 19(4), 479-497.

Floyd et al v. The City of New York, Opinion and Order, 08 Civ. 1034 (SAS)  U.S. District Court for the Southern District of New  York. August 12, 2013.

Kohler-Hausmann, I. (2013).  Misdemeanor justice: Control without conviction.  American Journal of Sociology, 119, 351-393.

Statement of Interest of the United States. Floyd  v. The City of New York,  U.S. District Court for the Southern District of New York. Filed June 12, 2013.

Vickrey, W.C., Denton, D.G. & Jefferson, W.B. (2013). Opinions as the voice of the court: How state Supreme Courts can communicate effectively and promote procedural fairness.  Harvard: Kennedy School.

Watson, A.C. & Angell, B. (2012).  The role of stigma and uncertainty in moderating the effect of procedural justice on cooperation and resistance in police encounters with persons with mental illnesses.  Psychology, Public Policy and Law, 19(1), 30-39.

Tatar, J.R., Kaasa, S.O. & Cauffman, E. (2012).  Perceptions of procedural justice among female offenders: Time does not heal all wounds.  Psychology, Public Policy and Law, 18, 268-296.

Stott, C., Hoggett, J. & Pearson, G. (2012).  Keeping the peace: Social identity, procedural justice and the policing of football crowds.  British Journal of Criminology, 52, 381-399.

Rosenbaum, D.P., & Lawrence, D.S. (2012).  Teaching respectful police-citizen encounters and good decision making: Results of a randomized control trial with police recruits.  Chicago:   National Police Research Platform.

Papachristos, A.V., Meares, T.L., Fagan, J. (2012).  Why do criminals obey the law?  Journal of Criminal Law and Criminology, 102 (2), 397-440.

Myhill, A. & Bradford, B. (2012).  Can police enhance confidence in improving quality of service?  Policing and Society, 22(4), 397-425.

Murphy, K. & Cherney, A. (2012).  Understanding cooperation with police in a diverse society.  British Journal of Criminology, 52, 181-201.

Levi, M., Tyler, T.R. & Sacks, A. (2012).  The reasons for compliance with law.  In R. Goodman, D. Jinks & A. Wood (Eds.), Understanding Social Action, Promoting Human Rights. Oxford, UK: Oxford University Press.

Kochel, T.R. (2012).  Can police legitimacy promote collective efficacy?  Justice Quarterly, 29(3), 384-419.

Hohl, K., Stanko, B. & Newburn, T. (2012).  The effect of the 2011 London disorder on public opinion of the police and attitudes towards crime, disorder, and sentencing Policing, 7(1), 12-20.

Jackson, J., Bradford, B., Hough, M., Myhill, A., Quinton, P. & Tyler, T.R. (2012).  Why do people comply with the law?  Legitimacy and the influence of legal institutions.  British Journal of Criminology, 52, 1051-1071.

Mazerolle, L., Bennett, S., Antrobus, E. & Tyler, T.R. (2012).  Shaping citizen perceptions of police legitimacy: A randomized field trial of procedural justice. Criminology, 51, 1-31.

Tatar, J.R., Kaasa, S.O. & Cauffman, E. (2012).  Perceptions of procedural justice among female offenders.  Psychology, Public Policy and Law, 18(2), 268-296.

Taylor, R.B. & Lawton, B.A. (2012).  An integrated contextual model of confidence in local police.  Police Quarterly, 15(4), 414-445.

Tomkins, A.J., Bornstein, B., Herian, M.N., Rosenbaum, D.I. & Neeley, E.M. (2012).  Improving appearance rates.  Court Review, 48, 96-106.

Mentel, Z. (2012). Racial Reconciliation, Truth Telling and Police Legitimacy. Office of Community Oriented Policing Services, US Department of Justice.

Tyler, T.R. (2011).  Why people cooperate. Princeton: Princeton University Press.

Myhill, A. & Quinton, P. (2011).  It’s a fair cop?  Police legitimacy, public cooperation and crime reduction.  London, UK: National Policing Improvement Agency.

Leben, S. (2011).  Considering procedural fairness concepts in the courts of Utah.  Paper Presented at the educational conference for the Utah State Courts, Midway, Utah.

Komarovskaya, I., Maguen, S., McCaslin, S.E., Metzler, T.J., Madan, A., Brown, A.D., Galatzer-Levy, I.R., Henn-Haase, C. and Marmar, C.R. (2011). The impact of killing and injuring others on mental health symptoms among police officers. Journal of Psychiatric Research, 45(10), 1332-1336.

Judicial Council of California (2011).  Procedural fairness in California: Initiatives, challenges, and recommendations.  San Francisco, CA: Center for Court Innovation.

Kennedy, D. M. (2011). Don’t shoot: One man, a street fellowship, and the end of violence in inner-city America. New York, NY: Bloomsbury USA.

Jonathan-Zamir, T. & Weisburd, D. (2011).  The effects of security threats on antecedents of police legitimacy: Findings from a Quasi-experiment in IsraelJournal of Research in Crime and Delinquency, 50 (1), 3-32.

Ward, J.T. (2011).  Caught in their own speed trap: The intersection of speed enforcement policy, police legitimacy, and decision acceptance.  Police Quarterly, 14, 251-276.

Hasisi, B. & Weisburd, D. (2011). Going beyond ascribed identities: The importance of procedural justice in airport security screening in IsraelLaw and Society Review, 45(4), 867-892.

Wylie, L., Gibson, C., Brank, E.M., Fondacaro, M.R., Smith, S., Brown, V.E., & Miller, S.A. (2010). Assessing school and student predictors of weapons reporting. Youth Violence and Juvenile Justice, 8, 351-372.

Peffley, M. & Hurwitz, J. (2010).  Justice in America: The separate realities of Blacks and Whites.  New York: Cambridge University Press.

Missed Opportunities, Shared Responsibilities: Final Report of the Cambridge Review Committee (2010, June 15).

Kubrin, Charis E., Steven F. Messner, Glenn Deane, Kelly McGeever, Thomas D. Stucky (2010), Proactive Policing and Robbery Rates Across U.S. Cities. Criminology, 48(1): 57-97.

Wales, H.W., Hiday, V.A. & Ray, B. (2010).  Procedural justice and the mental health court judge’s role in reducing recidivism.  International Journal of Law and Psychiatry, 33, 265-271.

Hough, M., Jackson, J., Bradford, B., Myhill, A., & Quinton, P. (2010). Procedural justice, trust, and institutional legitimacyPolicing, 4(3), 203-210.

Alexander, M. (2011). The New Jim Crow. New York: The New Press.

Bayley, D. & Nixon, C. (2010).  The changing environment for policing, 1985-2008. New Perspectives in Policing. Harvard Kennedy School Program in Criminal Justice Policy and Management.

Tyler, T.R. (2009).  Legitimacy and criminal justice: The benefits of self-regulation Ohio State Journal of Criminal Law, 7, 307-359.

Tankebe, J. (2009).  Self-help, policing, and procedural justice: Ghanaian vigilantism and the rule of law.  Law and Society Review, 43(2), 245-270.

Reisig, M.D. & Mesko, G. (2009).  Procedural justice, legitimacy and prisoner misconduct.  Psychology, Crime and Law, 15(1), 41-59.

Murphy, K., Tyler, T.R., & Curtis, A. (2009).  Nurturing regulatory compliance: Is procedural justice effective when people question the legitimacy of the law?  Regulation and Governance, 3(1), 1-26.

Hinds, L. (2009).  Youth, police legitimacy and informal contact.  Journal of Police and Criminal Psychology, 24(1), 10-21.

Hinds, L. & Murphy, K. (2007).  Public satisfaction with police: Using procedural justice to improve police legitimacy.  The Australian and New Zealand Journal of Criminology, 40(1), 27-42.

Norman, J. (2009).  Seen and Not Heard.  Young People’s Perceptions of the police.  Policing, 3(4), 364-372.

Reisig, M.D. & Lloyd, C. (2009).  Procedural justice, police legitimacy, and helping the police fight crime.  Police Quarterly, 12(1), 42-62.

Mazerolle, L., Bennett, S., Davis, J., & Manning, M. (2009). Legitimacy in policing. Research Preview. Brisbane, Queensland: ARC Centre of Excellence in Policing and Security.

Stuart, J., Fondarcaro, M., Miller, S.A., Brown, V. & Brank, E.M. (2008).  Procedural justice in family conflict resolution and deviant peer group involvement among adolescents.  Journal of Youth and Adolescence, 37(6), 674-684.

Murphy, K., Hinds, L. & Fleming, J. (2008).  Encouraging public cooperation and support for police.  Policing and Society, 18(2), 136-155.

Murphy, K. & Tyler, T.R. (2008).  Procedural justice and compliance behaviour: The mediating role of emotions. European Journal of Social Psychology, 38(4), 652-668.

Tyler, T.R. & Fagan, J. (2008).  Legitimacy And Cooperation: Why do people help the police fight crime in their communities?  Ohio State Journal of Criminal Law, 6, 231-275.

Murphy, K., Hinds, L., & Fleming, J. (2008). Encouraging public cooperation and support for policePolicing & Society, 18(2), 136-155.

Tyler, T. R., & Fagan, J. (2008). Legitimacy and cooperation: Why do people help the police fight crime in their communities. Ohio St. J. Crim. L., 6, 231-275.

Abuwala, R. & Farole, D.J. (2008).  The effects of the Harlem housing court on tenant perceptions of justice.  New York: NY Center for Court Innovation.

Tyler, T. R. (Ed.). (2007). Legitimacy and Criminal Justice: An International Perspective. New York: Russell Sage Foundation.
 

Tyler, T.R., Sherman, L.W., Strang, H., Barnes, G.C. & Woods, D.J.  (2007). Reintegrative shaming, procedural justice, and recidivism: The engagement of offenders’ psychological mechanisms in the Canberra RISE drinking-and-driving experiment. Law and Society Review, 41(3), 553-586.

Lentz, S.A. & Chaires, R.H. (2007).  The invention of Peel’s principles: A study of policing “textbook” history Journal of Criminal Justice, 35(1), 69-79.

Hinds, L. (2007).  Building police-youth relationships: The importance of procedural justiceYouth Justice, 7(3), 195-209.

Farole, D.J. (2007).  The New York State Residents Survey:Public perceptions of New York’s courts.   New York: Center for Court Innovation.

Horowitz, J. (2007). Making every encounter count: Building Trust and Confidence in the Police, National Institute of Justice Journal256, 8-11.
 

Papachristos, A. V., Meares, T. L., & Fagan, J. (2007). Attention Felons: Evaluation Project Safe Neighborhoods in Chicago. Journal of Empirical Legal Studies, 4(2), 223-272.

Justice in focus: The strategic plan for California Judicial Branch, 2006-2012 (2006).  San Francisco, CA: Judicial Council of California.

Tyler, T.R. (2006b).  Psychological perspectives on legitimacy and legitimation.  Annual Review of Psychology, 57, 375-400.

Tyler, T.R. (2006).  Why people obey the law. Princeton: Princeton University Press.

Tyler, T. R. (2006). Psychological perspectives on legitimacy and legitimation. Annu. Rev. Psychol., 57, 375-400.

Shute, S., Hood, R. & Seemungan, F. (2005).  A fair hearing?: Ethnic minorities in the criminal courts.  UK: Willan.

MacCoun, R.J. (2005). Voice, Control, and Belonging: The Double-Edged Sword of Procedural Fairness, Annual Review of Law and Social Science, 1, 171-201.

The Many Realms of Procedural Justice

Fair procedures tend to inspire feelings of loyalty to one’s group, legitimize the authority of leaders, and help to ensure voluntary compliance with the rules.[5] This is true in a variety of settings, from the work place, to political organizations, to legal contexts.

Issues of procedural justice thus arise in the making of many different types of decisions. In the context of legal proceedings, procedural justice has to do with ensuring that a fair trial takes place. The application of law is supposed to ensure impartiality, consistency, and transparency. In order to ensure that retributive justice is served and that offenders receive fair punishments, judges, and juries must be unbiased and evenhanded in their sentencings.[6]

Drug sentencing laws in the U.S. have, for instance, been challenged as being procedurally unjust. In particular, federal sentencing structures hand out tougher sentences for crack cocaine than for powder cocaine, a substance more popular with white, wealthier users. The outcome of the wide disparity has been a racial imbalance in federal prisons, which are overcrowded with poor African American, offenders. Powder cocaine offenders, meanwhile, are thought to “get off easy,” despite scientific evidence that neither substance is more addictive than the other. The Fair Sentencing Act (FSA), a law passed by Congress in 2010, aimed to correct unfair sentencing procedures by reducing the sentencing disparity between crack and powder cocaine from a 100:1 to an 18:1 weight ratio. Nonetheless, many activists are calling for further reforms, including applying the FSA retroactively, which would correct past injustices, and eliminating the disparity entirely.[7]

In the realm of distributive justice, implementing fair procedures is a matter of setting down rules that everyone should follow in acquiring and transferring goods. Many believe that following certain rules of allocation will lead to the fairest distribution of wealth.

There is also an important relationship between justice-based principles and negotiation. Fair processes yield reliable information that can be used in the decision-making process. Participants must agree beforehand to the processes of dialogue or exchange that are being used, and be given an equal voice in any decisions that are made.

Fair rules of collaboration are central to successful mediation or negotiation processes, insofar as they are the best tools for reaching a decision acceptable to all parties.

Fair procedures of negotiation or legal proceedings are also central to the legitimacy of decisions reached. In those cases where parties feel forced to accept the results of a decision-making process they think was unfair, there may be a backlash effect.

Another example of a procedural injustice is the practice of racial profiling, a violation of constitutional rights in the United States. A class-action suit brought by Hispanic drivers in Maricopa County, Arizona, alleged that police deputies under the leadership of Sheriff Joe Arpaio were illegally using race as grounds to stop, detain, and hold the occupants of vehicles. In May 2013, a federal judge ruled that the patrols had indeed “incorporated race as a consideration into their operations” and banned Sheriff Arpaio’s unfair operating procedures.[8]


S.Y. Bowland talks about African American’s lack of trust in the American justice system and its processes.

The Importance of Fair Processes in an International Context

In any instance where nations come together to negotiate or make decisions about international policy, fair processes of collaboration are crucial. Fair procedures, ones that allow all parties to voice their interests, should be adopted in developing treaties, and other international agreements. Even the military must take care to follow standard procedures.

In those cases where standard military or arms-control procedures are not followed, a crisis situation may result. For example, nations who conduct military exercises without following agreed-upon notification procedures may escalate a conflict.

Even in war, there are standard procedures to be followed. Terror tactics, for example, do not qualify as a fair process of warfare. Innocent civilians cannot be military targets. The rules of jus in bello can thus be thought of as a special instance of procedural justice.

When fair procedures of warfare are not followed, and human-rights violations result, international tribunals often intervene to address these transgressions. Any war crimes adjudication that takes place should, like legal proceedings at the local or national level, follow established procedural rules.
 

Current Implications

I am writing this section in the summer of 2020, about two months after George Floyd was killed by police in Minneapolis, Minnesota. Protests, not just about that incident, but about police brutality and systemic racism more broadly broke out across the United States and soon afterwards, across the world. The demands were not just for the arrest, charging, and conviction of the police officer(s) who directly or indirectly killed Floyd (one did so directly by kneeling on his neck, others did so indirectly by standing by and doing nothing.) The demands also were to “defund the police,” as it was assumed that the police were so corrupted by racism that they couldn’t be reformed.  Rather, they had to be eliminated and replaced by other organizations which, it is hoped, would do a better job of keeping cities safe.

To my knowledge, that hasn’t really been tried anywhere for an extended period of time, so it isn’t really possible to tell whether or not it might work. But some examples are coming to the surface of situations where police have backed off doing their jobs as completely as they usually do, and the results were mixed: it proved a disaster in Baltimore (see Bret Stephens’s column and Alec MacGillis’s  longer feature article), but apparently less so in New York where the police have fairly routinely staged “slowdowns” during periods of anti-police rhetoric.[9] According to Haven Orecchio-Egresitz’s article in the Insider, complaints of crimes actually went down in New York when police staged slowdowns, not up, reinforcing the notion that cities would be better off without police. [10]

I would argue that rather than demanding that police be defunded, which only addresses one small part of the criminal justice system (if that), people would be better off looking at the systemic injustice built into the entire criminal justice system—which is, in essence, systemic procedural injustice.  As Maiese explains in this article, justice isn’t just about punishing people for wrong doing (that’s retributive justice). It is also about following fair and equal procedures in so doing.  George Floyd’s death reminded us that police arrest procedures used with Blacks is often different than procedures used to deal with whites. That is clearly a case of procedural injustice.  But so, too, is every other aspect of the criminal justice system.

What is not being said, yet should be, is that we need procedural justice reform in all aspects of the criminal justice and social services systems.  Look at what “procedural justice” entails. 

People feel affirmed if the procedures that are adopted treat them with respect and dignity, making it easier to accept even outcomes they do not like.[1]

 

But what makes procedures fair? First, there is an emphasis on consistency. Fair procedures should guarantee that like cases are treated alike. Any distinctions “should reflect genuine aspects of personal identity rather than extraneous features of the differentiating mechanism itself.”[2]

 

Second, those carrying out the procedures must be impartial and neutral. Unbiased decision-makers must carry out the procedures to reach a fair and accurate conclusion. Those involved should believe that the intention of third-party authorities is impartiality—they want to treat people fairly and take the viewpoint and needs of interested parties into account.[3] If people trust the third party, they are more likely to view the decision-making process as fair.

 

Third, those directly affected by the decisions should have a voice and representation in the process. Having representation affirms the status of group members and inspires trust in the decision-making system. This is especially important for weaker parties whose voices often go unheard.

 

Finally, the processes that are implemented should be transparent. Decisions should be reached through open procedures, without secrecy or deception.

Clearly, none of those provisions are true when one looks at the criminal justice system’s differential treatment of Whites and Blacks. In an extensive report in the Washington Post, Radley Balko reviews hundreds of studies looking at the differential way Whites and Blacks are treated in the U.S. criminal justice system.[11] It is abundantly clear that Blacks are less often treated with respect and dignity, like cases are not treated at all alike, with Blacks being dealt with more harshly throughout the arrest-jail-trial-sentencing-prison process. The intentions of third parties—police, wardens, judges, lawyers, and juries are not seen as impartial, nor are they trusted to make fair decisions. Blacks seldom have a voice or representation in the criminal justice process (except for the overworked court-appointed lawyers they are assigned if they can’t afford a lawyer of their own), and the processes used by the system to make decisions is not at all transparent. 

But if police are “defunded” and other organizations are put into authority to deal with any problems that arise, will they do any better at providing procedural justice?  One of the suggestions being made is that the police shouldn’t be dealing with overdoses and other health and mental health problems.  Social workers, public health workers, and others trained in drug use, health care and mental health should handle such cases instead.  There are also important questions about what it would take to enable these workers to respond on an emergency basis to situations where the exact nature of the problem is unknown and the risk of violence is significant. Even if these problems could be overcome, there is a danger that these professionals, too, could carry racial biases.  (See, for example, Khaira M. Bridges’ article on Implicit Bias and Racial Disparities in Health Care.)  [12]

So, the key issue, it seems to me, is not funding or defunding police, but rather, reforming, and adequately funding, the entire process through which society handles justice related issues.

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