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8 Police Fairness: Legitimacy as the Consent of the Public R esearch has examined the legitimacy of policing as well as its law- fulness. By legitimacy we mean the judgments that ordinary citizens make about the rightfulness of police conduct and the organiza- tions that employ and supervise them. Unlike police lawfulness, which is defined in large measure by legal and administrative standards and can be observed in part in the field, legitimacy lies in the hearts and minds of the public. Perceptions of legitimacy are, by definition, subjective. They can be affected by many factors, and may not mirror the activities of the police as they are measured in other ways. However, legitimacy in the eyes of the public is one of the important outputs of policing, and attention to it is warranted on a number of grounds. First, the more legitimacy the police have among their different audi- ences, the more effective they can be in achieving their goals. If citizens trust the police, they will be willing to invest more authority in the police and spend more taxpayer dollars on them. If citizens trust the police, they will call them when they need help and help them identify offenders; crimes that are investigated as a result are more likely to be solved than if citizens are reluctant to call. If those stopped by the police think they have been stopped legitimately, they are more likely to cooperate than if they think they have been unfairly rousted. Perhaps most important, if the police are seen as legitimate, at least one of the threats that might concern citizens--that they could be mistreated by the police as well as by criminals--can be set aside. Second, police fairness is an end in itself. In a democracy where citizens are policed by consent, the exercise of state power must be seen as an ex- pression of the community and not an action against it. This does not mean that police are engaged in a popularity contest. Our review of research 291

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292 FAIRNESS AND EFFECTIVENESS IN POLICING concludes that legitimacy grows out of how police treat victims, witnesses, bystanders, people reporting crime, and those who commit crime. When they adhere to the rules, maintain their neutrality, and treat people with dignity and respect, police legitimacy increases. Perceptions regarding po- lice fairness are created and sustained by the process of policing itself. This chapter examines the process by which police organizations at- tempt to garner legitimacy through efforts to make their operations more responsive to the felt needs of citizens. This path involves organizational change. Legitimacy can be gained through the adoption of programs, poli- cies, and procedures that are viewed by the community and civic leaders as effective and desirable. It can also be gained by hiring personnel and allo- cating departmental resources in ways that are viewed as equitable. In each case, departments acquire legitimacy by organizing themselves in ways that are acceptable and seem responsive to professional and public standards. Research on fairness and legitimacy draws on the findings of surveys and experimental research. Surveys are used to gather information on what people think about the police and to collect self-reports of the experiences of individuals. Because these surveys are often national in scope and some have been carried out for a number of years, they can also point to trends in legitimacy over time and for major subgroups in the population. Studies utilizing experimental designs look at the effects of a variety of factors on people's assessments of police legitimacy, and consider whether the factors that influence legitimacy have similar effects among different groups in the population. Research on legitimacy has focused on several audiences. One is simply the general public, who can be understood as comparing what they know about police performance with some conception of how they would like the police to behave. If citizens were generally knowledgeable about and com- mitted to the many rules that regulate police conduct, this standard would be identical to the standards discussed in Chapter 7. While the public may not be knowledgeable of these rules in great detail, surveys have long con- firmed that people want the police to behave in accord with simple prin- ciples of justice. A second audience whose views are important consists of those who call the police for assistance. This group most closely approximates the customer base of the police (but see Moore, 2002, for a discussion of the limitations of this assumption). They are the ones who ask for and benefit from service by the police. An important goal of policing, and one of the important ways in which they gain legitimacy, is by meeting the expecta- tions of those who call them for assistance: those who have been victims of crimes, those who are afraid, and those who need emergency assistance of one kind or another. A third audience consists of those who are stopped, cited, or arrested by the police. These people, unlike those who call the police, did not choose

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POLICE FAIRNESS 293 to have their particular encounter and do not necessarily expect to benefit from it. In general, people who call, flag down, or approach the police are more satisfied with what happened--and with policing generally--than are those who are pulled off the road or stopped by patrol officers while walk- ing on foot. For example, in a review of the literature Decker (1981) dubbed them voluntary and involuntary contacts. He concluded that voluntary con- tacts, those initiated by citizens, are more positive in substance than invol- untary, police-initiated contacts. He reasoned that police play a supportive role in citizen-initiated contacts, while police-initiated contacts are likely to be of a more suspicious, inquisitorial and adversarial nature. These differ- ences have been observed in many studies. For example, Southgate and Ekblom (1984) found that, in Britain, being involved in field interrogations and vehicular stops generated three times as much public "annoyance" (as they measured it) as other kinds of encounters with police. However, studies have shown that even those involuntarily stopped by the police notice the difference between being fairly and respectfully treated on one hand, and abused on the other. They hope to be treated in a way that respects their rights and their dignity as well as their safety, and it is valuable as an end in itself that even those who are ticketed or even arrested feel that they are treated fairly and with dignity (Coupe and Griffiths, 1999; Reisig and Chandek, 2001). Moreover, it serves an instrumental purpose: research indicates those who feel fairly treated are more likely to comply with the demands of the police (Tyler, 1997; Tyler and Huo, 2002). These three groups overlap considerably. In a given year, the largest will be those who have paid only intermittent attention to the police and have formed a generalized view of how they conduct themselves. Among them will be a smaller group of citizens who called for help or experienced a police "service encounter," as well as a still smaller group who have been stopped, cited, or arrested and therefore experienced what Moore (1992) dubbed an "obligation encounter." As a result, there are a variety of per- spectives from which people form their opinions of the police. It is impor- tant to evaluate the police from these three vantage points, since citizens will use all three kinds of experiences in deciding whether the police are legitimate or not. Race is one important dimension along which people in all three of these groups divide in their opinion of the police. Surveys routinely reveal that when the subject is the police, Americans divide sharply along racial lines when they describe their feelings and experiences. The importance and consistency of this result warrants special attention. LEGITIMACY AND POLICING A core function of the police is to bring the behavior of citizens into line with the law. This is true both in personal encounters between members of

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294 FAIRNESS AND EFFECTIVENESS IN POLICING the public and the police, during which officers make decisions about what is appropriate conduct that people need to accept and follow, and in the case of people's everyday compliance with the law in the absence of legal supervision. The need for legal authorities to secure ready compliance with both specific instructions and voluntary obedience in everyday life has been widely noted by legal scholars and social scientists: "The lawgiver must be able to anticipate that the citizenry as a whole will...generally observe the body of rules he has promulgated" (Fuller, 1971:201). This is the case be- cause the effective exercise of legal authority requires compliance from "the bulk of [citizens] most of the time," (Easton, 1975:185). Decisions by po- lice officers mean very little if people generally ignore them, and laws lack importance if they do not affect public behavior in a routine way (Tyler, 1990). It is widely assumed that the ability of democratic legal systems to func- tion depends on gaining voluntary compliance with the law (Parsons, 1967; Engstrom and Giles, 1972; Scheingold, 1974; Easton, 1975; Sarat, 1977). Whether such voluntary compliance is, in fact, necessary for social regula- tion, it is unquestionably true that legal authorities benefit when the public is generally motivated to follow the law. If many or most of the people in a society voluntarily follow the rules, police are able to direct their coercive efforts against a smaller subset of community members who do not hold supportive internal values. Three major factors help explain why people voluntarily obey the law: when it is instrumental, when they believe in the moral rightfulness of the substantive law, and when they believe in the legitimacy of the process of making and evoking the law. The police play an important role in the first and third of these compliance processes. Instrumental Motives One perspective on social regulation builds on human motivations that are instrumental or "rational" in character. In this view, individuals mini- mize their personal costs and maximize their rewards. This conception un- derlies deterrence, sanctioning, or social control models of social regulation (Nagin, 1998). These all emphasize the ability of legal authorities and insti- tutions to shape people's behavior by threatening to deliver or by actually delivering negative sanctions for rule-breaking. To implement deterrence strategies, police officers in the United States carry guns and clubs and can threaten citizens with physical injury, incapacitation, or financial penalties. Their goal is to establish their authority and "the uniform, badge, trun- cheon, and arms all may play a role in asserting authority" in the effort to "gain control of the situation" (Reiss, 1971:46). The police seek to control the individual's behavior "by manipulating an individual's calculus regard- ing whether `crime pays' in the particular instance" (Meares, 1998). Judges

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POLICE FAIRNESS 295 similarly shape people's acceptance of their decisions by threatening fines or even jail time for failure to comply. Research suggests that the ability to threaten or deliver sanctions is generally effective in shaping people's law-related behavior. In particular, a number of studies on deterrence suggest that people are less likely to engage in illegal behaviors when they think that they might be caught and punished for wrongdoing. This core premise of deterrence models is supported by many, but not all, studies examining the factors that shape people's law related behavior (Paternoster et al., 1983; Paternoster and Iovanni, 1986; Paternoster, 1987, 1989; Tyler, 1990; Nagin and Paternoster, 1991; Nagin, 1998). Studies of deterrence also point to several factors that limit the likely effectiveness of deterrence models of social regulation. Perhaps the key fac- tor limiting the value of deterrence strategies is the consistent finding that deterrence effects, when they are found, are small in magnitude. For ex- ample, in a review of studies of deterrence in the area of drug use, MacCoun (1993) finds that around 5 percent of the measured variance in drug use behavior can be explained by variations in indicators of the expected likeli- hood or severity of punishment. This suggests that much of the variance in law-related behavior flows from other factors besides risk estimates. A further possible limitation of deterrence strategies is that, while de- terrence effects can potentially be influenced by either estimates of the like- lihood of being caught and punished for wrongdoing (certainty of punish- ment), or by estimates of the likely cost of being caught (severity of punishment), studies suggest that both factors are not equally effective. A difficulty for policy is that the factor that most strongly influences people's behavior is the certainty of punishment (Paternoster and Iovanni, 1986; Paternoster, 1987, 1989; Nagin and Paternoster, 1991), which is also the part of the deterrence equation that is most difficult to effectively change. To influence behavior, risk estimates need to be high enough to exceed some threshold of being psychologically meaningful (Teevan, 1975; Ross, 1982). For most crimes in the United States, the objective risk of being caught and punished is quite low. There are a number of methods for esti- mating these probabilities, and results vary. For burglary, the apprehension rate has been found to be as low as 4 percent; for homicide, apprehension rates have approached 80 percent in many cities, before they recently began to fall (see Skogan and Antunes, in Bayley, 1998). In addition, the effectiveness of "instrumental means of producing com- pliance always depend[s] on resource limits" (Meares and Harcourt, 2000: 401). The question is how much society is willing to invest in crime control, and how much power legal authorities will be allowed to have to intrude into people's lives. Resources need to be deployed in strategic and effective ways. Sherman (1998), for example, notes that in the United States police resources are typically expended more in response to political pressures

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296 FAIRNESS AND EFFECTIVENESS IN POLICING than to actual crime threats, with the consequence that the ability of the police to deter crime is less than optimal. Based on his analysis, Ross (1992) argues that it is difficult to implement deterrence approaches in the context of the political realities of democratic societies. Thus the problem faced by those responsible for the everyday enforce- ment of law in democratic societies is that deterrent effects are apparently modest, certainty of punishment is low under many circumstances, and there are political constraints on resource allocation. As a consequence, deter- rence strategies alone are unlikely to be a sufficient basis for an effective system of social regulation. Deterrence can form the foundation of efforts to maintain the legal order, but it cannot be a complete strategy for gaining compliance (Ayres and Braithwaite, 1992). An effective strategy for ensur- ing public compliance with legal authorities requires additional reasons for obeying the law (Tyler, 1990, 2003; Sherman, 1993, 1998, 2001). Substantive Morality The second motivation to comply with legal authorities involves the moral or ethical values that shape people's feelings about how it is appro- priate to behave. If their personal values are consistent with the law their cooperation will be to a large extent voluntarily, and people will be "self- regulatory." Morality or ethics are both concerned with feelings about what is right or wrong. The degree to which people view law as consistent with their own values is clearly one factor shaping their law-related behavior, independent of issues of legitimacy (see Robinson and Darley, 1995; Tyler, 1990; Tyler and Darley, 2000; Sunshine and Tyler, 2003). To the extent that people are following laws because of their ethical values, society need not devote resources to agents of social control like the police. Tyler (2001a) refers to a society in which people are internally motivated to obey the law as "a law-abiding society." However, morality or ethics are social and cultural phenomena. While personal values can facilitate compliance with the law, they can also under- mine it. On one hand, a person may refrain from stealing because they think it is wrong to do so, irrespective of whether the law forbids it. On the other hand, a person may defy and undermine laws allowing abortion or promoting integration, because those laws contradict personal values. Un- like legitimacy, personal values can either promote or undermine the rule of law (see Tyler and Darley, 2000). Belief in Legitimacy This chapter focuses on legitimacy, rather than the morality of the law. It does so because legitimacy is a characteristic of legal authorities and can

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POLICE FAIRNESS 297 therefore be created or undermined by their behavior. Legitimacy is the property that a rule or an authority has when others feel obligated to volun- tarily defer to that rule or authority. In other words, a legitimate authority is one that is regarded by people as entitled to have its decisions and rules accepted and followed by others (French and Raven, 1959; Merelman, 1966). The roots of the modern discussion of legitimacy are usually traced to Max Weber's discussion of authority and the social dynamics of authority (Weber, 1968). Weber argued that the ability to issue commands that will be obeyed does not rest solely on the possession and ability to use power. He described an additional aspect to authority--legitimacy, or the quality possessed by an authority, a law, or an institution that leads others to feel obligated to obey its decisions and directives. Legitimacy, in this sense, is a characteristic of public institutions, yet it is conferred on institutions by the people. A similar view of responsibility and obligation to others is articulated by other social observers. As Hoffman notes: "The legacy of both Sigmund Freud and Emile Durkheim is the agreement among social scientists that most people do not go through life viewing society's moral norms as exter- nal, coercively imposed pressures to which they must submit. Though the norms are initially external to the individual and often in conflict with [a person's] desires, the norms eventually become part of [a person's] internal motive system and guide [a person's] behavior even in the absence of exter- nal authority. Control by others is thus replaced by self control [through a process labeled internalization]" (Hoffman, 1977:85). As with Weber, the key issue addressed by Durkheim and Freud is the personal taking on of obligations and responsibilities that become self-regu- lating, so that people feel individually responsible for deferring to society, social rules, and authorities. In this report we follow Weber in focusing on the internalization of the obligation to obey authorities, as opposed to the internalization of the responsibility to follow principles of personal values. This particular feeling of responsibility includes a willingness to suspend personal considerations of self-interest and to ignore personal values be- cause an individual thinks that an authority or a rule is entitled to deter- mine appropriate behavior in a given situation or situations.1 1Kelman and Hamilton (1989) refer to legitimacy as "authorization," to reflect the idea that a person authorizes an authority to determine appropriate behavior in some situation and then feels obligated to follow the directives or rules that the authority establishes. As they indicate, the authorization of actions by authorities "seem[s] to carry automatic justification for them. Behaviorally, authorization obviates the necessity of making judgments or choices. Not only do normal moral principles become inoperative, but--particularly when the actions are explic- itly ordered--a different type of morality, linked to the duty to obey superior orders, tends to take over" (Kelman and Hamilton, 1989:16).

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298 FAIRNESS AND EFFECTIVENESS IN POLICING CREATING LEGITIMACY While legitimacy can be a general feeling of obligation or responsibility to obey that encourages deference in any situation, it is also something that is created by individual police officers in an encounter with members of the public (Reiss, 1971). Recognizing this, police officers focus not only on displays of force, but also establishing their legitimate right to intervene in a particular situation (Reiss, 1971:46). Police interventions into people's lives are viewed by the people affected as more legitimate when there is some additional reason for the intervention beyond the officer's personal judg- ment, such as a complaint from another citizen. When the subject or ob- server of the intervention perceives legitimacy as low, the police are more likely to resort to physical force, thereby introducing the risk of injury to both the arrested person and the officer (Reiss, 1971:60). Interestingly, Reiss found that 73 percent of injuries to officers occur when the officers are interfered with, and interference most typically comes from people other than the parties involved in the immediate situation--for example, bystand- ers and family members. Reiss observed: "when such persons question the legitimacy of police intervention and a police officer reacts to control their behavior, more serious conflict may ensue as each party attempts to gain control of the situation. This results more often in injury to the officer" (Reiss, 1971:60). In addition to being created in a particular type of situation, legitimacy is also created by individual police officers. When a police officer responds to a call or stops someone on the street, what happens affects general feel- ings that people have regarding the extent to which authorities are legiti- mate and are entitled to be obeyed. In turn, to the degree that community residents see police officers as legitimate, the task of particular police offic- ers is made easier. Tyler and Huo (2001) found that people who view legal authorities as legitimate are generally more willing to defer to the directives of specific police officers. The behavior of the officer in a particular situa- tion can, in turn, influence this more generalized legitimacy of the police. The cyclical nature of this pattern brings out one of the potential vir- tues of community policing, in which community residents develop a long- term relationship with particular police officers. It gives those officers an opportunity to build support for their role, thereby carving out an indi- vidual and potentially positive relationship with community members. Tyler and Darley (2000) found that the effects of the particular actions of police officers are greater than the effects of general legitimacy. That is, whatever generalized view of legitimacy people have, it is overwhelmed by their reac- tions to the actions of the particular police officers with whom they are dealing. Particular police officers can therefore either build on whatever legitimacy they bring into the situation, or they can rapidly undermine it.

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POLICE FAIRNESS 299 While legal scholars are concerned about police focus on statutory and court-determined rules of conduct and professional standards, many social scientists focus on the effects of police actions on the beliefs and actions of the public. This perspective assumes that police behavior should in substan- tial part be evaluated against the public's ethical and moral standards. An example of such an approach is provided by Slobogin (1991; Slobogin and Schumacher, 1993), who evaluates the intrusiveness of law enforcement searches and seizures using ratings derived from public opinion. He argues that standards of acceptable police behavior should be crafted with refer- ence to the role of police activity itself and the subsequent ways in which that activity shapes views of legitimacy of the police, the courts, and the law. Perhaps most important, studies find that people evaluate the actions of authorities against prevailing standards of ethical behavior (Leventhal, 1980; Tyler, Boeckmann, Smith, and Huo, 1997; Tyler and Smith, 1997). The central goal for empirical research on legitimacy has been to test when and how the process of people conferring legitimacy on the police actually occurs, and how this in turn explains their response to the law and directives of legal authorities. Researchers have measured legitimacy in a variety of ways. In the case of laws and legal authorities, studies have often used an index of the perceived obligation to obey them. Typical items from such a scale, in this case drawn from Tyler (1990), include: "People should obey the law even if it goes against what they think is right" (82 percent yes); "I always try to follow the law, even if I think it is wrong" (82 percent yes); and "If a person is doing something, and a police officer tells them to stop, they should stop even if they feel that what they are doing is legal" (84 percent yes). The perceived obligation to obey is the most direct extension of the concept of legitimacy. Building on studies by political scientists and the conceptual framework of Easton (Easton and Dennis, 1969), legitimacy has also been measured in terms of support, allegiance, institutional trust, and confidence. Drawing on this literature, Tyler (1990) measured legiti- macy by asking people's agreement to items like: "I have a great deal of respect for the Chicago police" and "I feel that I should support the Chi- cago police." More recently, legitimacy has been conceptualized as cynicism about the law (Silbey and Ewick, 1998). This analysis considers the degree to which people feel that the law and legal authorities represent their interests, as opposed to the interests of a select group. On the basis of this conceptual model, Tyler and colleagues (2000, 2002) operationalized cynicism using several items, including: "The law represents the values of the people in power, rather than the values of people like me," "People in power use the law to try to control people like me," and "The law does not protect my interests."

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300 FAIRNESS AND EFFECTIVENESS IN POLICING Race and Legitimacy Research on race and police legitimacy has yielded consistent and im- portant results. When asked about the police, surveys reveal large differ- ences among people of different races in the United States. Black Americans almost universally report the most negative views of the police (for a rare exception, see Frank et al., 1996). Whites are less inclined than are blacks to believe that police discriminate against minorities. Blacks are more likely to think that police racism is common and that police treat them more harshly than they do whites (Weitzer, 2000). Whites, blacks, and Hispanics often are in close agreement about the effectiveness of police in preventing crime, but they stand far apart on questions about how police respect and help people and treat them fairly (Roberts and Stalans, 1997). When asked hypothetical questions about police use of force under various circum- stances, blacks are more likely than whites to disapprove of police use of violence (Tuch and Weitzer, 1997; Roberts and Stalans, 1997). They are also less likely to report having confidence that police can protect them from violent crime (Tuch and Weitzer, 1997). Whites have substantially more confidence in police than they do in the Supreme Court (in a 1994 national survey the difference was 13 percentage points), while blacks have about equal confidence in police and the Supreme Court (Roberts and Stalans, 1997). In a 1994 study, 52 percent of whites, but only 39 percent of blacks, would go beyond the Supreme Court (in Tennessee v. Garner) by endorsing police use of lethal force to stop a person suspected of burglary (Cullen et al., 1996). People of different races also vary in reports of their own experiences with the police. Summarizing this research, Tuch and Weitzer (1997:646) note that "blacks are more likely than whites to report having involuntary, uncivil, or adversarial contacts with police; to be stopped, questioned and/ or searched without due cause; and to personally experience verbal or physi- cal abuse." In other surveys, blacks are also more likely to report in surveys that police have been discourteous to them (Roberts and Stalans, 1997) and that they have observed police wrongdoing (Flanagan and Vaughn, 1996). These differences were documented most recently in a large national survey conducted by the Census Bureau for the Bureau of Justice Statistics (BJS) (Langan et al., 2001). After screening respondents to determine who among them had direct experiences with the police during the previous year, interviewers asked follow-up questions about those experiences. In the BJS survey, blacks were more likely to report being stopped by the police, and they were more likely to be stopped repeatedly. They were less likely than whites to think they were stopped for a legitimate reason, and they were more likely to be ticketed, arrested, and handcuffed. They were much more likely than were whites to report that the police used physical force during those encounters, and they were even more likely to report that

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POLICE FAIRNESS 301 the force was excessive. Blacks were twice as likely as whites to report that police did not behave properly, and when they were searched they were less likely to believe that the search was legitimate. Hispanic respondents gener- ally fell in between whites and blacks on these measures. These consistent results speak to need for police to work to gain legitimacy among minority groups. Procedural Justice and Legitimacy Another striking finding has resulted from research on police fairness: empirical studies suggest that the key to developing and maintaining the legitimacy of law and of legal authorities and to obtaining public coopera- tion lies in citizens' evaluations of the procedures through which legal rules are created and implemented. Studies of personal encounters with police officers and judges consistently suggest that people's attitudes, feelings, and behaviors are influenced by their sense of what is right and wrong, just or unjust (Tyler et al., 1997; Tyler and Smith, 1997). Despite claims that people are interested only in outcomes that favor themselves, the dominate finding of studies exploring people's post-experi- ence feelings and behaviors is that they are most strongly influenced by the degree to which they experience procedural justice--an evaluation of the fairness of the manner in which their problem or dispute was handled. This is especially true when people are dealing with third-party authorities, whether they are police officers, judges, managers, political leaders, or any other type of authority (Lind and Tyler, 1988; Tyler et al., 1997; Tyler and Smith, 1997; Tyler, 2001). The argument underlying the procedural justice literature is that people will defer to decisions because those decisions are made through fair processes. This procedural justice effect is believed to be distinct from the influence of concerns about either outcome favorability or outcome fairness. As such, it provides a way for acceptable decisions to be made in situations in which people cannot be given what they want or feel they deserve. Thibaut and Walker conducted what is considered the original research on procedural justice (Thibaut and Walker, 1975). Their hypothesis was that people would be willing to accept outcomes because they were fairly decided on--that is, because of the justice of the decision-making proce- dures used. They performed the first systematic experiments that demon- strated that people's assessments of the fairness of third-party decision-mak- ing procedures shape their satisfaction with their outcomes. Their finding has been confirmed in subsequent laboratory studies of procedural justice (Lind and Tyler, 1988; Tyler et al., 1997). Subsequent studies found that, when third-party decisions are fairly made, people are more willing to voluntarily accept them (MacCoun et al.,

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316 FAIRNESS AND EFFECTIVENESS IN POLICING Most of this research is quite dated, as is the literature on urban ser- vices delivery generally. This may be significant, since the demographics and politics of U.S. cities and their suburban rings during the latter half of the 20th century have changed. One of the few longitudinal studies of a municipal service (parks, in Chicago) found that over 22 years there was ". . . a fundamental redistribution of resources between black and white wards. In fact, the worst-category in the city is [now] white rather than black" (Mladenka, 1989:581). Especially in a time of plummeting crime rates, it may be time to readdress these questions, with a special focus on how resource allocation decisions are actually made. The authors in the field also readily acknowledge the limitations of their measures. For example, Mladenka and Hill (1978:114) noted: "we have little idea of the relationship between police activity levels and the benefits conferred, it cannot be assumed that the distribution of activities is the same as the distribution of benefits." It is instructive that, 25 years later, there are still few solid findings to report. In another study, Bloch (1974) observed that having a well-motivated and well-trained police force may be more important than their sheer numbers, but he had only numbers to ana- lyze. Another limitation is that the findings appear to be very city-specific, which is understandable if local political calculations play a significant role in shaping the allocation of the benefits bestowed by government. For ex- ample, Bolotin and Cingranelli (1983) report that, because blacks in Boston strongly supported the incumbent mayor Kevin White, they received even more police in response; there, political factors worked in their favor. Some studies have pointed to more subtle variations in service quality than is typically assessed in the research. For example, Nardulli and Stonecash (1981) report that while officers responding at the moment to reports of violent victimization were fairly evenhanded in their work, there was evidence that later follow-up investigations were more quickly dismiss- ive of crime in the black community. They also found racial bias in ticket- ing, once the decision to stop someone had been made. Rossi, Berk, and Eidson (1974) found that white policemen in 15 cities were generally biased in their view of blacks, but presented no evidence that this affected how they actually did their work. Although the existing body of research on the equality of service distri- butions is quite dated, this may change. Research of this type will be facili- tated by the widespread use of geographic information system (GIS) tech- nology, which prioritizes attaching geographical locators to virtually every piece of municipal data. The committee recommends expanding the scope of outcome measures used in this research to encompass significant aspects of service delivery. To date, most research has been on what has been termed "outputs" (or activity levels), rather than on "outcomes" (their conse- quences) for individuals and neighborhoods. Mladenka (1989) and others

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POLICE FAIRNESS 317 have called for more research on service "quality," and they anticipate un- covering more variation and possible bias in measures of it. A final limitation of this research is that the data and their analysis are inevitably tied to municipal boundaries. Because policing in the United States is so highly localized, the relevant bureaucratic decisions that are under investigation are local as well. Research has been confined to cities in part because legal guarantees of equal protection in the allocation of gov- ernment benefits apply only within jurisdictions and generally not among them (Lineberry, 1974). Discovering evidence of the illegitimate distribu- tion of benefits has been one motivation for these studies (Ostrom, 1983; Rich, 1979). None of this research has broached the larger issue of the balance of the central-city versus suburban distribution of public safety re- sources, nor equity in the outcomes of policing in those widely varying places. But as Rich (1978) points out, in important ways the metropolitan area has superseded the central city as the relevant unit for most aspects of life--except for policing and a few other municipal services. The committee recommends that research on police service delivery be expanded to include the metropolitan area as the relevant domain of concern. Responding to the Challenge of Racial Profiling The final issue raised here is the role of research in one of the para- mount legitimacy issues of the day: racial profiling. Because police must make many discretionary decisions in the course of their day, it is not sur- prising that some of these judgments could be influenced by racial, ethnic, or gender stereotypes. While police have long exercised this kind of discre- tion, two developments during the 1980s granted officers even more lati- tude in making judgments on whom to stop, whom to search, and whom to arrest. First, the public responded to escalating violence associated with drug trafficking by endorsing aggressive law enforcement policies. The U.S. Drug Enforcement Agency (DEA), the federal office charged with enforcing the nation's drug laws, developed a new strategy to intercept the distribution of illegal drugs: drug courier profiling (Webb, 1999). The DEA and, to some extent, the U.S. Department of Transportation, trained local and state law enforcement officers to identify the characteristics of an illegal drug courier in a program called Operation Pipeline (American Civil Liberties Union, 1999). The list of identifying characteristics of a drug courier is long, occa- sionally puzzling, and contradictory. Many lawyers and activists have quoted extensively from the list in legal briefs or in speeches as a way of demonstrating that almost anyone who the police wanted to stop, they could stop. Whatever the actual content of the training conducted by these federal agencies--and 48 states participated in this training--the result was that

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318 FAIRNESS AND EFFECTIVENESS IN POLICING race or ethnicity became, in the minds of many officers, a possible indicator of illegal activity. As a consequence of this official effort to stymie the dis- semination of illegal drugs, police proactively stopped or searched citizens, even when no criminal activity was evident. This expansion of police power echoed the aggressive policing of the 1950s that liberally and proactively applied police power to urban communities in hopes of deterring criminal activity (Goldstein, 2000:27). The second development legitimized, in a legal sense, the first. Key de- cisions from the U.S. Supreme Court sanctioned this increased police discre- tion. In Ohio v. Robinette (1996), the court rejected the argument that police were required to inform citizens of their right to refuse a request to search either their person or their vehicle. Once consent to a search is given, police have broad powers to proceed; if consent is not granted, police must demonstrate probable cause for a search. Thus many citizens have con- sented to searches and been surprised how long law enforcement could legally detain them and intrusively probe their person or their car. In the same session, the Supreme Court also handed down the Whren v. United States decision, which held that police could conduct traffic stops to investigate their suspicions even if those suspicions had nothing to do with the traffic offense for which a citizen was being stopped. This has become known as "pretextual traffic stops," or using traffic violations as a nominal reason to stop a car for investigation when in fact the real motivation for the stop lay elsewhere. In some instances, the traffic violations used as a pretext have been so minor that police would not, under normal circum- stances, stop any other car for the same violation. Along with these developments, complaints of racial profiling surfaced, and many were articulated by law-abiding, prominent black Americans who had nevertheless been stopped by police and were subjected to, at times, humiliating treatment. Henry Louis Gates, Jr., chronicled some of these complaints in 1995, adding that "there's a moving violation that many blacks know as D.W.B.: Driving While Black" (Gates, 1995). Soon after, law professor David A. Harris used this term as the title for his book exam- ining racial profiling. Gradually and by process of accretion, stories de- scribing incidents of racial profiling prompted a general discussion of the issue. Initially some in the law enforcement community responded to charges of racial profiling by admitting that they considered race as one among many probabilistic factors of criminal activity by police (see Kennedy, 2001, for some examples). Some defended this practice by citing statistics that demonstrated that black males made up a disproportionate number of sus- pects arrested, convicted, and sentenced nationwide. However, many who challenged racial profiling countered that these statistics proved only that

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POLICE FAIRNESS 319 the criminal justice system in this country targeted black males. More re- cently the terms of the debate have shifted. Many police agencies now de- fine racial profiling as the decision to stop or search a person exclusively because of race, usually denying that they engage in such practices. Yet there is a general public belief that racial profiling is in fact common prac- tice. The Gallup News Service reported the results of a nationwide poll in 1999: a substantial majority of blacks believed racial profiling to be "wide- spread" (77 percent), and so did a majority (56 percent) of whites (Gallup Poll News Service, 1999). Legal developments have spurred data collection in this area. As noted earlier, the Violent Crime Control and Law Enforcement Act of 1994 au- thorizes the attorney general to investigate any "pattern or practice of con- duct by law enforcement officers...that deprives persons of rights, privi- leges, or immunities secured or protected by the Constitution or laws of the United States." The consent decrees that have resulted from the threat of litigation have required the collection of data on departmental practices, and these data are unusually extensive. While police use of force has been the most common area of research, the consent decree governing operations of the New Jersey State Police re- quire the collection of data on stops made by police, and a court ruled that these data revealed a significant disparity between white and black motor- ists.2 Documents discovered as the result of Department of Justice litigation also demonstrated that the New Jersey State Police believed themselves to be engaged in racial profiling on the New Jersey Turnpike. This, coupled with the data gathered to support the consent decree, bolstered the public's perception that racial profiling did indeed occur. Combined with the efforts of advocacy groups, this has led to an explosion of data collection efforts and racial profiling policies across the country. In general, the policy response has included affirmations that prohibit racial profiling; diversity of training for officers; a mandate to collect data in some fashion; and new mechanisms for filing complaints by people who believe they have been unjustly stopped by police. It is noteworthy that some police agencies began voluntarily to collect data or implement other features of this response to racial profiling. At this writing, 24 states and the District of Columbia have taken some action on racial profiling, either through an executive order of the governor or, more frequently, by passing legislation. Currently there are 16 bills pending in various states, and 11 of these have been introduced in states that do not have any previous policy response to racial profiling. 2United States v. New Jersey, No. 99-5970 (MLC), (D.N.J. Dec. 30, 1999).

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320 FAIRNESS AND EFFECTIVENESS IN POLICING Data Collection and Research Efforts The fact that various strategies have been adopted to monitor racial profiling invites closer attention to the viability and effectiveness of these approaches. In particular, the committee has special interest in efforts un- derway to collect data on the prevalence of racial profiling, and the research designed to promote best practices in that data collection effort. On a basic level, the same problems that dog other kinds of data collec- tion also plague efforts to gather information on racial profiling. These problems include unintentional and intentional errors committed by the police or by the civilian in the recording of racial or ethnic information (see, for example, Bland et al., 2000). Simplified reporting systems have been promoted by some police agencies as a way to reduce unintentional mis- reporting. In particular, efforts have been made to trim the amount of pa- perwork required of officers who must collect data. For example, the San Jose Police Department in California, which has voluntarily been collecting data since June 1999, has developed a mobile data terminal to record infor- mation, but the letter codes developed for the system can also be relayed verbally via the police radio. Whether the information is input directly into the terminal or transmitted on the radio, a San Jose police officer does not have to file a written report as part of this data collection. Montgomery County, Maryland, police utilize special Palm Pilots" that record informa- tion input by the officer for their data collection efforts. Once returned to the police station at the end of an officer's shift, the chip is removed from the device, and the relevant information is automatically printed on forms. This practice simplifies racial profiling data collection, reducing error, and the labor-saving device also reduces time spent on other kinds of paper- work-related traffic stops. Despite these innovations, which clearly have beneficial application beyond racial profiling data collection, concerns persist both inside and outside the law enforcement community. Many argue that police will not be able to and should not be expected to record accurately the race of persons they stop and search, for often it is not obvious. In addition, the United Kingdom's efforts to collect data on race or ethnicity of those stopped have revealed that self-reporting by those who are stopped is deeply flawed (Bland et al., 2000). Misreporting and false reporting are concerns in any kind of police field data collection. In addition, the range of encounters for which data collection is re- quired varies significantly; state and local statutes differ in what they re- quire police to record or collect. Some jurisdictions record all traffic stops, some record only stops that result in a citation of some kind, and still others record traffic stops that result in a police search. Thus, efforts to make general assessments regarding the prevalence of racial profiling based on these varied data are immediately hampered. In addition, since inconsistent

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POLICE FAIRNESS 321 data collection results from disagreement over exactly what ought to be measured, resolution of this issue will not be simple. Given these concerns, data collection efforts currently under way by police may not reliably answer the question of whether or not a department is engaging in racial profiling. Another problem besetting racial profiling data collection is methodological, and it is sometimes called the "denomi- nator" or "benchmarking" problem. Imagine that police stop only blacks driving on one particular street during one night. That might seem to be racial profiling. But imagine again that the street is in the middle of an overwhelmingly black neighborhood; the fact that police stopped only blacks might not, when it is placed in context, be the effect of bias. There- fore, in addition to the number of stops made, a sense of context or a benchmark is needed. This sets up a numerator--the number of stops made by police as classified by race or ethnicity--and a denominator--the typical pool of traffic (pedestrian or motor) in the area sorted by race or ethnicity. Thus far police have been collecting and supplying information on the nu- merator.3 Even if all of the problems with establishing this numerator were eliminated (problems such as misreporting or inconsistencies in the universe of concern), interpreting that numerator reliably would require a denomi- nator to measure it against. There is still more complexity to proper measurement of racial profil- ing. The most accurate denominator, or benchmark, is not the typical traf- fic on the street, but the pool of traffic offenders. The best analysis would measure offending rates for the groups and areas under examination and use those as denominators in assessments of profiling patterns. In the case of traffic, this might involve observational studies of samples of the driving population. Calculating correct denominators for profiling studies is expen- sive, requiring elaborate data collection and skilled modeling; it is not a process that can realistically occur in every community. Moreover, the de- nominator is a moving target; a community cannot, for example, establish a denominator once and apply it at all times and in all places. Traffic pat- terns, to say nothing of crime patterns, shift. Given these problems, con- structing a denominator has become just as controversial as deciding on the proper numerator. Several criminal justice researchers have conducted important efforts to grapple with this denominator problem. The first such attempt by John Lamberth, was used in court to establish that the New Jersey State Police engaged in racial profiling (New Jersey v. Soto, 734 A.2d 350, Superior Court of New Jersey, 1996). Lamberth testified that blacks constituted 13.5 3Some police, such as the San Jose Police Department, do establish a benchmark to measure their data collection against. San Jose measures stops against local residential populations (U.S. Department of Justice, 2000).

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322 FAIRNESS AND EFFECTIVENESS IN POLICING percent of drivers on one southern stretch of the New Jersey Turnpike, and 15 percent of drivers speeding. Yet black drivers represented 35 percent of those drivers stopped and 73.2 percent of those arrested. Lamberth used a stopwatch and timed cars across a known distance to determine the speed of passing traffic. His work pioneered empirical data collection for assess- ing the prevalence of racial profiling, and his methodology refined the de- nominator category to more accurately determine offense rates across racial and ethnic categories. However, one major problem with this study is that the stops were not necessarily for speeding (General Accounting Office, 2000). To further explore the issue of appropriate benchmarking, in 2000 the National Institute of Justice funded a data collection effort led by Matt Zingraff of North Carolina State University. This comprehensive study ex- amined whether the North Carolina Highway Patrol officers stop minori- ties on the road at higher rates than whites, which factors motivate highway stops, and how ethnic minorities respond to police stops. The research team endeavored to answer these questions by integrating data collected from three separate sources: a survey of drivers, official police records, and their own data collection on 14 separate stretches of North Carolina highway. While the survey and the police records included information on local po- lice, the independent data collection, used in the construction of the de- nominator, was aimed exclusively at the North Carolina State Highway Patrol, and therefore it was to that police agency that the researchers con- fined their results. In order to create an appropriate denominator, the re- search team drove five miles over the speed limit on defined stretches at defined intervals during the day. They carried a stopwatch in the car and used it to determine the miles-per-hour of every car that passed them. They also recorded the characteristics of the driver in that car. Before using this "modified carousel method," the researchers tested the accuracy of using the stopwatch to determine miles-per-hour at a racetrack, and they con- firmed that the method worked well. The advantage of this methodology is considerable: researchers were not only able to establish an offender denominator--the rate at which dif- ferent race and ethnic groups sped on the highway--they were able to dis- tinguish among different classes of offender denominators. When it comes to highway speeding, rating the severity of the offense is critical. Highway patrol officers may not stop drivers who speed at 62 mph on a regular basis, but they may consistently stop drivers who speed at 82 mph. Zingraff et al. determined that young white males accounted for the majority of drivers in the most severe speeding offense category, and they also constituted most of the drivers pulled over by the North Carolina State Highway Patrol. The researchers found that black drivers were pulled over at a rate slightly higher than the offense denominators would indicate, but that the increase was not

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POLICE FAIRNESS 323 statistically significant. One caveat to their results: the time intervals that the researchers measured speeding on the highway all occurred during the day, for the simple reason that researchers could not reliably discern race/ ethnic/gender characteristics at night. Zingraff et al. (2000) mentioned several items in their study that, while not related to their results, raise new questions about data collection itself. First, in their telephone surveys, they found that blacks self-reported a much higher rate of stops by local (and not state highway) police. Second, their review of local police records indicated that there was indeed a high num- ber of stops of blacks made by local police. Since the researchers were con- cerned only with the state highway patrol, and in particular with the crime of speeding, they did not use this information to formulate their results. Nevertheless, these items remain important. The crime of speeding is most often detected by use of radar; usually a decision to act is made by police even before they have had visual contact with a driver. Reliance on radar limits police discretion on this issue. It would follow, then, that intentional or even cognitive bias would remain low. How does one establish a denominator for other traffic and moving violations? Local police may stop cars for speeding, but it is clear that they also stop drivers for a host of other reasons as well: tag violations, running a red light, missing license plates, aggressive driving, not wearing a seatbelt, and so on. Researchers standing on a corner could not reliably detect all of these infractions on every car that passed, thus undermining the establish- ment of a denominator. A similar problem confronts research on pedestrian stop and search procedures. Benchmarking discretion--and considerable discretion is used by local police in traffic and pedestrian situations--is the challenge. Without the right denominator, there will be no way to judge the numerator results that are being produced by police right now. The energy and resources currently devoted to analysis of racial profil- ing demand that requisite attention be paid to the development of interpre- tative frameworks that allow for sound judgment. The committee concludes that current efforts to collect data on public encounters with police that are intended to inform judgments on whether police agencies engage in racial profiling are not very effective. The committee finds that current efforts to collect data on public encounters with police that are intended to inform judgments on whether police agencies engage in racial profiling are not very effective. The committee recommends further research on the collection and analysis of systematic data on the lawfulness of police activities. Other Approaches to Accountability Apart from mandates to collect some form of data, other noteworthy features of state racial profiling bills include measures designed to increase

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324 FAIRNESS AND EFFECTIVENESS IN POLICING police accountability to the public. In Colorado, for instance, police officers who stop motorists but do not issue tickets must hand out business cards to the driver that state the officer's name and a number to call if the driver feels that he or she was pulled over only because of race. A slightly different procedure operates in Minnesota, where police officers must verbally relate their name, badge number, and agency that they work for to any motorist that they stop. Some states, such as Kentucky, have started a telephone hotline for motorists to call to report allegations of racial profiling. All of these procedures add a new dimension of accountability of the police to the community, advancing an already prominent trend in urban policing. In order to gauge the effectiveness of these and other accountability measures, the committee recommends research on the collection of data on police lawfulness generally. A number of programs have emerged for collecting data on officer performance for the purpose of identifying problem behav- ior and providing a basis for corrective action. Some early intervention or early warning programs collect data on a broad range of officer perfor- mance measures. They have been adopted voluntarily by many law enforce- ment agencies and have been imposed by consent decrees in other agencies. Rigorous evaluations are required to determine if these programs effectively produce police accountability. Federal Response to Racial Profiling The federal government has addressed the problem of racial profiling in several ways. First, an executive memorandum issued by President Clinton prohibits federal law enforcement agencies from engaging in racial profiling and mandates that those agencies collect data. President George W. Bush has endorsed data collection on this issue and called for the elimination of racial profiling and Attorney General John Ashcroft has publicly endorsed this mission. Second, Congress has initiated, through the U.S. General Accounting Office, research inquiries into this issue (General Accounting Office, 2000a). One influential recent study, released in March 2000 (General Accounting Office, 2000b), examined U.S. Customs Service's targeting of airline pas- sengers and found that black women were stopped and searched in dispro- portion to their offense rates.4 During this period of racial targeting, suc- cessful apprehension of drug couriers occurred at such a low rate that a randomized search of passengers yielded better results. The Customs Ser- 4U.S. General Accounting Office, "U.S. Customs Service: Better Targeting of Airline Passen- gers for Personal Searches Could Produce Better Results," GGD-00-38 March 17, 2000.

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POLICE FAIRNESS 325 vice agreed to new training and procedures, including more rigorous review of complaints filed against the agency. Finally, the 107th Congress introduced several bills on racial profiling. In the House, H.R. 965 and H.R. 1907 would have required states to ban racial profiling or risk losing up to 10 percent of federal highway funds. H.R. 2074 and its companion bill, S. 989, would have required states to adopt racial profiling policies in order to receive federal grants. H.R. 1907 defined racial profiling as the consideration of race "to any degree or in any fashion" by an officer when deciding whom to stop or search, except when race is part of a specific description of an offender who committed a crime. Data collection was not a feature of this bill (H.R. 965 is the same bill without any language that defines racial profiling). S. 989, sponsored by Senator Russell Feingold in the Senate, and the identical H.R. 2074, spon- sored by Representative John Conyers in the House, went into considerably more detail. These bills defined racial profiling in the same way as H.R. 1907, but also required "collection of data on routine investigative activi- ties sufficient to determine if law enforcement agents are engaged in racial profiling and submission of that data to the Attorney General" (S. 989). The attorney general would have been required to develop an appropriate benchmark for police agencies to use in collecting data; in addition, the attorney general would be required to report annually on the results of this data collection effort to Congress. Police agencies that do not comply with the provisions of this bill would lose funding from any or all of the follow- ing grant programs: the Edward Byrne Memorial State and Local Law En- forcement Assistance Programs; the Cops on the Beat program under Part Q of Title I of the Omnibus Crime Control and Safe Streets; and the Local Law Enforcement Block Grant program of the Department of Justice. It remains to be seen whether either of these bills, which did not pass the 107th Congress, will be reintroduced and, if so, whether either garner more support. Resolving the Issue of Racial Profiling There is a divergence between the law enforcement community and the general public on whether or not racial profiling is a widespread phenom- enon. In part this difference reflects just how one defines racial profiling, since the public definition is more expansive than what has thus far been proffered by law enforcement. While general agreement exists that race should not be used as the basis for stopping or searching a citizen, debate still surrounds the use of race as one among other factors that can be legiti- mately used by police in making a decision to stop or search. The difficulty in establishing benchmarks for collecting data on racial profiling should neither undermine current efforts under way in gathering

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326 FAIRNESS AND EFFECTIVENESS IN POLICING such data nor serve to discredit the utility of data themselves for public policy purposes. Instead, it should encourage redoubled attention to the limitations of data collection and to the important roles of police training and accountability measures in effecting change in law enforcement. Perhaps most important is the need for guided discretion among police officers. The terrorist attacks of September 11, 2001, represent one important and still largely unknown factor in this debate and in policing in general. A Gallup poll from November 29, 2001, found that 60 percent of respon- dents favored steps the government had taken to carry out a war on terror, including detainment of immigrants and others singled out for attention because of their country of origin. Anecdotes and editorials provide some qualitative evidence that many people also support the use of race and ethnicity at airports as a factor in considering who should be subjected to increased scrutiny. How much this trend will influence everyday urban po- licing and how long it will last remain important but unanswered questions. CONCLUSION Research on public opinion documents the profound gulf between the races in American's views of the legitimacy of the police. The committee calls for more research on the experiences of crime victims, persons stopped by the police, and the public, focusing on practices in policing that support or undermine public confidence in the institution. To support this, the com- mittee recommends conducting a regular national survey to gauge the ex- tent and nature of police-citizen contacts, including items that speak to public assessments of the quality of police service in their community. Current efforts to collect data on public encounters with police that are intended to inform judgments on whether police agencies engage in racial profiling are not very effective. We call for more research on the collection of reliable and valid encounter data under field conditions that then can be analyzed in ways that point unambiguously to policy recommendations and personnel decisions. The committee also recommends research on mechanisms for ensuring lawfulness. A number of programs have emerged for collecting data on officer performance for the purpose of identifying problem behavior and providing a basis for corrective action. Some early intervention or early warning programs collect data on a broad range of officer performance measures. They have been adopted voluntarily by many law enforcement agencies and have been imposed by consent decrees in other agencies. Rig- orous evaluations are required to determine if these programs effectively produce police accountability.