Author Archive

The paradox of American policing: Performance without legitimacy   Leave a comment

by Tom Tyler

                Recent events in New York City make it clear that there is widespread and continuing anger over the street stop policies of the NYPD.  This ongoing discontent reflects a broader paradox in American policing: the police have become more effective in reducing the rate of violent crime to historically low levels but their success has not led to higher levels of public trust in the police.  There are lessons from this police experience not only for police commanders but also for judges, court administrators, and others working in the criminal justice system.

Based upon my own research and that of other social scientists we know why this performance without legitimacy paradox is occurring.   Public anger continues because the police have not addressed what actually matters to the public.  My research shows that police legitimacy is based upon how fairly the public thinks the police exercise their authority.  Until the police change their policies and practices to address public concerns over procedural justice, controversies over police practices such as racial profiling, police street stops and the surveillance of Muslim Americans will not end.

Many cities, including New York City are experiencing dramatically lower levels of violent crime.  Despite these gains public trust and confidence in the police is not increasing, nor is the large racial gap in trust and confidence between White and minority Americans closing.  Better performance has not lead to greater public legitimacy.  Why?  Police leaders are failing to take account of public concerns.  Evaluations of policies and practices by police leaders ask if they are effective in preventing crimes.  The question of whether these policies and practices are viewed as legitimate by people in the community is not addressed.  My research findings however tell us that effectiveness is not the key factor that the public considers when reacting to police policies and practices.

What does the public care about?  Research shows that the key issue to members of the public is their evaluation of the fairness of the way the police exercise their authority: i.e. to issues of procedural justice.  More than anything else people are concerned about whether they feel that the police officers to whom they give the authority to maintain order in their communities act using fair procedures.

What does the public mean by fair procedures?  They mean first that when creating policies the police work with the community to identify problems and the strategies that should be used to address them.  When dealing with particular citizens they allow those people to tell their side of the story, to explain their situation, before making decisions.  When implementing the law the police explain their policies and how they are being applied in particular cases in ways that the public can see are neutral and unbiased.

The public also means that the police should treat people fairly.  Fair treatment is respectful and courteous.  It acknowledges people’s rights not to be demeaned, ridiculed or insulted by the police.  And, the police are trustworthy.  They act with integrity, accounting for their actions in ways that show good faith responsiveness to people and their problems.

Why should the police care about this public perspective on policing?  Insensitivity to public concerns has led police departments like the NYPD to turn victory into defeat.  Instead of being congratulated for lowering the rate of violence in New York City, or reducing the rate of unlawful shootings, the police are reviled by an angry population for mistreating people in the community.

And the police lose the benefits of public cooperation.  Studies show that when people view the police as more legitimate they are more willing to defer to police authority; less likely to resist and defy the police; and that complaints against the police go down.  Legitimacy further encourages willing compliance with the law and cooperation with police efforts in their efforts to stop crimes and identify criminals.  When fairly treated people are more willing to work with the police in efforts that join the police and the people in the community in efforts to maintain order by attending community meetings or joining a neighborhood watch.

If officers dealt with people seeking to communicate respect and deliver fairness they would be working not only to prevent crime but to build public support for the police.  And, more broadly legal authorities need to recognize the value of considering their policies and practices from the perspective of public concerns.  That perspective emphasizes that people are “seekers of justice” and evaluate their experiences with the police and courts by evaluating how fairly they experience the actions of the authorities they deal with.

Tom Tyler, Professor of Law and Psychology, Yale University

Posted July 12, 2012 by drottman1 in Policing

Tagged with , , , , ,

Where to start?   Leave a comment

There is ample material about procedural fairness on for judges and court administrators to start the process of making themselves and their courts more effective. The question is where to begin that process. There are two levels on which procedural fairness principles can be implemented in order to begin improving court outcomes and public satisfaction.

Most immediately, the individual judge can become more adept at demonstrating the criteria of procedural fairness during their interactions with litigants, lawyers, witnesses and others. Relevant tools on include descriptions of programs that videotape judges while on the bench to provide them feedback to use for self-improvement, as well as video and print resources that can be used to create judicial education courses on procedural fairness. The “Resources” tab includes “tips for judges” that can serve as a check-list to guide their behavior. Similarly, individual court administrators can become more effective by embracing procedural fairness principles in their interactions with subordinates.

Second, an entire trial court or court division can revise its policies and procedures in ways that seem likely to promote behaviors that are perceived as procedurally fair. These changes can be subtle but still highly effective.
Whether the target for change is the individual judge or an entire court, a possible starting point is to reflect on how knowledge of procedural fairness can help you make sense of successes in the past. Here are two examples of hindsight, brought on by learning about procedural fairness. Both examples come from a series of conversations with presiding trial court judges initiated to learn their reaction to a comprehensive judicial branch-wide program promoting procedural fairness principles.

In the first example, the presiding judge of a medium-size court (circa 30 judges) was already a believer in the program. When she became presiding judge, she was alarmed by the pile on her desk of phone message slips and letters, all containing complaints from small claims litigants that they had not had their day in court. When she asked her assistant about the pile, she learned that that such communications were constantly flowing in. Along with several other judges and her court administrator, the presiding judge went through the complaints. They began to notice a pattern – many of the litigants felt that their case had not been adequately considered. The judges identified as the problem their court’s practice of not giving small claims case decisions from the bench as contributing to this sentiment. Instead of giving the decisions from the bench, the court sent litigants form letters, some weeks after their trial, with the equivalent of “won” or “lost” checked off. A change to the letter remedied the problem. The judges identified five or so main reasons that a small claims litigant might end up on the losing side. With the relevant sentences inserted in each letter, the flow of complaints dwindled and then virtually ceased. The new, reasoned approach communicated that the decisions had been reached through a fair process. For the judges, learning about procedural fairness theory made sense of the success of their revised approach to small claims court.

Another “home grown” example of procedural fairness is a practice that surfaced in conversation with the presiding judge of another medium-sized trial court in the same state. Her court has adopted the practice of formally swearing in all new staff as court employees. The presiding judge personally administers the oath, with other judges and court staff as an audience. For this judge, hearing about procedural fairness made sense of the apparent benefits the court has gained from the inclusive, respectful manner in which it treats its employees.

In sum, a look to past experience may be a useful starting point for those considering the potential value of taking a procedural fairness approach to personal improvement or court reform. Ask yourself what has worked and what has not worked, and think if the lens of procedural fairness offers insights into how to do a better job.
David Rottman

Problem-Solving Courts and Perceptions of Procedural Fairness   1 comment

In my blog post last week I looked at the way in which serving on a trial jury is associated with a strong perception that trial courts decide cases in a procedurally fair manner.  Former jurors report coming away from jury service holding a higher level of trust and confidence in the courts than they had beforehand.

Can we identify other court experiences that are associated with strong perceptions of experiencing procedural fairness? Available research points to problem solving courts as the most promising candidate. Defendants in drug treatment courts (DTC) report experiencing higher levels of procedural fairness than do comparable groups of defendants processed on the same kinds of charges through traditional criminal courts. The available research identifies that the relative advantage in defendant perceptions of procedural fairness is a key, and perhaps the primary, reason why drug court defendants have lower recidivism rates than their counterparts in traditional courts. One relevant study is a DTC evaluation conducted by prominent criminologist Denise Gottfredson in the criminal courts of Baltimore, Maryland. Drug treatment court-eligible defendants were randomly assigned either to the DTC or to the traditional court. DTC defendants were less likely to re-offend: “More specifically, [the study] suggests that the DTC program, especially the judicial hearings, contributes to an offender’s perception of fairness and due process, thereby increasing his or her willingness to fulfill his or her part of the negotiated DTC agreement.” (Source: D. Gottfredson et al., How drug treatment courts work: an analysis of mediators, Journal of Research in Crime and Delinquency, 2007, p. 28).

The recently concluded Multi-Site Adult Drug Court Evaluation supports the explanation for the lower recidivism rate associated with DTCs put forward by Gottfredson and her colleagues. Although labeled”attitude to the judge,” and associated by the report writers with the field of “Therapeutic Jurisprudence,” the scale is based on DTCs’ perceptions of the “judges competence, impartiality and concern for their [defendants] general well-being.”  The report concludes that “the most striking finding in this research is the power of the judge, and judicial interactions with the offenders, to promote desistance.” (Source: Chapter 6, by John Roman et al., “How do Drug Courts Work?”, pp. 94-120). That sounds like a procedural fairness effect.

These findings from research on drug courts appear to be generalizable to at least some of the other types of problem-solving courts. Research conducted by the Center for Court Innovation in community courts  and in housing courts  also finds that specialized problem-solving courts are viewed as more procedurally fair by litigants than are traditional court dockets that process similar cases.  Thus far, however, only drug treatment courts provide solid evidence that there is a direct link between enhanced perceptions of procedural fairness and a reduction in recidivism and greater compliance with court orders.

Generally, however, the impact of direct experience with the courts is more hit or miss for civil litigants and criminal defendants. In fact, the bulk of research suggests that court experience is as likely to diminish as it is to increase trust and confidence in the courts. The available research shows that procedural fairness is least likely to be perceived in high volume courts, with defendants in traffic court, on average, reporting the lowest levels of procedural fairness and of trust and confidence in the courts. (See, for example: D. Rottman, Trust and Confidence in the California Courts: Findings and Recommendations, Judicial Council of California, 2005)

My next blog post will consider what lessons we can draw from the evidence available on what is conducive to high and what to low levels of perceived procedural fairness.

David Rottman

Posted April 30, 2012 by drottman1 in Courts

Tagged with ,

From the Supreme Court to Your Local Courthouse   1 comment

This posting begins a transition from the recent series of blogs and comments pertaining to the rarified world of the US Supreme Court toward consideration of the more mundane and immediate setting of state trial courts. This post raises the question of how what we know about the sources of support for the Court is relevant when we consider support for trial courts. The answer depends, in part, on what we believe drives public support for the Court—and perhaps on the reason that brings a person into the courthouse.

Some political scientists argue that it is the very inaccessibility of the US Supreme Court that underpins its support.  For example, Political scientists John Hibbings and Elizabeth Theiss-Morse argue: “The Court is more insular than any other political institution, and people like it for that very reason. People do not have to participate in or even see the deliberations of the Court” (pp. 200-201 in Stealth Democracy: Americans’ Beliefs about How Government Should Work). This suggests the Court is wise to prohibit televising of oral argument and, perhaps, that trial courts are doomed to low levels of support.

Other political scientists, however, highlight the role that knowledge of the Court plays in understanding why support varies among members of the public. Studies by Jim Gibson and his colleagues, for example, lead to a conclusion that there is a “to know them is to love them” effect in which the more knowledgeable someone is about the US Supreme Court, the higher their level of support will be (see James Gibson, “Public Images and Understandings of Courts” in Oxford Handbook of Empirical Legal Research, 2010). Gibson asserts that the this effect “is largely a function of the knowledgeable being exposed to highly legitimizing symbols of judicial power: the black robe, the privileged form of address, the deference, even the temple-like building housing most courts.” This suggests that the Court should open up oral argument to the public, and that being involved directly in a case may well enhance a person’s support for trial courts by increasing their level of knowledge.

A majority of American adults have had direct experience in a courtroom as a litigant, defendant, juror, witness, or spectator. Many of them have had multiple experiences with the trial courts, in multiple roles. They see the symbols in the temple-like building but also see the crowded dockets, delays, contentiousness, and compromises of the courts in action.

For at least some of these court participants, a link of the kind described by Gibson between greater knowledge and greater support seems plausible. Jurors are the best example. Former jurors consistently rate procedural fairness in trial courts highly. In a 2000 national survey of members of the public who had had direct court experience within the preceding 12 months, former jurors averaged procedural fairness ratings of 3.6 out of a possible 4.0; this contrasts with former litigants, who averaged 2.7 out of 4.0 (David Rottman et al., Perceptions of the Courts in Your Community: The Influence of Experience, Race and Ethnicity, NCSC, 2003).

A recent book,  The Jury and Democracy (Oxford University Press, 2010), by John Gastil and colleagues, reports research that supports a knowledge to support link and also explores the potential impact of the experience of jury deliberation on jurors’ future civic and political engagement. The book is a product and discussion of three related studies conducted by the authors: a national sample of jury service and voting records, a three-stage survey of jurors in King County, Washington, and a smaller series of in-depth interviews with jurors. The book begins with a basic, but perhaps surprising, finding – that the experience of deliberating on a criminal jury causes jurors to become more likely to vote in future elections – the book then explores why the experience of serving on a jury has this effect. Ultimately, Gastil and his colleagues  find that jurors leave the courtroom with increased respect for attorneys and judges, become more likely to pay attention to the news media and discuss community issues with neighbors, and more likely to be supportive of the jury system, local judges, and even the Supreme Court.

A future blog posting will look at the implications of how jurors respond to court experience—and the contrast to those who are in the courthouse for other purposes–for programs to increase support for the state courts.

David Rottman

Posted April 23, 2012 by drottman1 in Courts, Trial Courts, U.S. Supreme Court

Tagged with ,

History Lesson: The Procedural Fairness Legacy of the Affordable Health Care Act   1 comment

There is intense speculation about the potential impact of the Affordable Health Care Act on the US Supreme Court’s standing with the American public. Decades of public opinion polling demonstrates the resiliency of the Court in withstanding case decisions that seriously displease large segments of the public.  The Court appears to command the loyalty of the American people because of the manner in which it reaches decisions, not the specific decisions it reaches.

Will history repeat itself in the case of the Health Care Act?  There are strong reasons for anticipating that the public’s loyalty to the Supreme Court as an institution will prevail, regardless of the case outcome. The partisan tumult associated with Bush v. Gore seemed at first to challenge such an expectation, yet after that case, overall support for the Court quickly reverted to its traditionally high (relative to other federal government institutions) level. In the short term, disenchanted Democratic-leaning Court supporters were instantly replaced with newly enchanted Republican-leaning Court supporters, leaving overall levels of support unchanged; however, even that effect was short-lived.  One month after the decision, over 61 percent of Democrats professed a favorable opinion of the Court and only 29 percent an unfavorable opinion [Pew Research Center]. Support for the Court once again became equally prevalent among Democrats and Republicans alike.

Today’s Supreme Court justices may have reason for concern that history will not repeat itself and that their decision in the Health Care Act case could reduce  diffuse support their institution receives from Democrats (and less certainly from Republicans, who already view the Court as too liberal, if the decision goes in the other direction). “Diffuse support” is a reservoir of good will on which the Court can draw, as opposed to the temporary “specific support” that it might receive based on agreement with a particular decisions.  In procedural fairness terms, diffuse support comes from public perceptions that decisions are being made according to principles of respect, neutrality, participation, and trustworthiness. Things may have changed since 2000. The Court is increasingly being seen in partisan terms. A Washington Post-ABC News survey last Sunday asked a random sample of adults, “Do you think the Supreme Court justices will rule on this case mainly on the basis of the law or mainly on the basis of their partisan political views. Forty percent answered “on the basis of the law” and 50 percent based on “partisan political views,” with another 10 percent undecided. Those responses come at a time in which support for the US Supreme Court has been declining, most likely a manifestation of a general decline of trust in government across the board. The past may therefore be a less certain guide to the consequences of a decision viewed unfavorably by a substantial segment of the public, especially if Democrats see the decision as part of a series of specific disappointments with the Court. Support for the Court cannot in the long-run rest on new supporters from one party replacing former supporters from the other.   

We have no way of predicting whether successive disappointments with specific Court decisions will lead to a decline in its diffuse support among a segment of the population. The historic relationship between the Court and African-Americans suggests, however, that groups who are dependable supporters can become persistent critics. Over time, the high level of support the Court enjoyed from the African-American community during the period of the Warren Court was replaced by atypically low levels of diffuse support. While African-Americans who grew up during the Warren Court era retained their loyalty, subsequent cohorts never developed a similar level of diffuse support. Bush v Gore   also teaches us that one effect of the Health Care Act will be to at least modestly increase public knowledge about how the Supreme Court operates.  People will talk about and think about the manner in which the Court is making its decision. This is both an opportunity and a risk to the justices. If what people learn and come to believe from news reinforces the belief that the Court follows a procedurally fair process, diffuse support for the institution will be enhanced. As Judges Burke and Leben noted in previous posts to this blog, the Court is taking some steps to expose its process to unprecedented scrutiny. That should be a plus. But the risk is real. In his analysis of the response to Bush v. Gore, political scientist Bert Kritzer noted that the Courts refusal to allow television cameras into oral argument may have served “to limit the vehemence of the public reaction to what the Court decides.”

On balance, the smart bet is on the Supreme Court’s continued ability to maintain diffuse support across the political spectrum.  However, demonstrating procedural fairness in the decision and how it is presented will increase the odds of history repeating itself in June 2012 when the decision is announced

David Rottman

Posted April 13, 2012 by drottman1 in Courts, U.S. Supreme Court

Tagged with , ,