When researchers talk about police legitimacy, they’re usually talking about what the public thinks about the police. What makes people treat officers as authority figures? What makes people think the police will help them solve their problems? The subject of our latest interview, Justin Nix, turns the topic around to focus on what the police think.
Nix describes legitimacy as a dialogue between police and the public: the police make a claim to legitimacy, the public responds to that claim, officers adjust their behavior or views of themselves accordingly, and so on. In his dissertation and several recent articles, Nix picks apart that dialogue, looking for what police feel makes them legitimate in the eyes of the public and what influences how officers feel about themselves.
Nix says police officers know that procedural fairness is important to people, but they may not be as clear on its practical effects or whether it’s equally important to all groups. While they know procedural fairness bolsters their claim to legitimacy, for example, they don’t always see it as the best way to gain cooperation.
The next piece of the dialogue—how officers feel about their own legitimacy and react to public perceptions—is especially interesting in light of the scrutiny surrounding policing over the last two years. Negative portrayals of police do affect officers’ confidence in their authority, Nix says. That can make them not only more reluctant to do their jobs but also more likely to handle situations by using force. Nix says the negative publicity has made some officers less willing to partner with the community to solve problems. But he found that wasn’t the case for officers who viewed themselves and their agencies as legitimate and procedurally fair, demonstrating the importance of self-legitimacy for keeping up the dialogue between police and the public.
Listen to our interview with Nix below, or access the articles he discusses here. As usual, our interviewer is Justine Greve (M.A., American Studies), a staff member with the Kansas Court of Appeals.
For more than a year, our website has been posting a Quarterly Research Report featuring the most notable scholarship we’ve found in procedural fairness and procedural justice. The report is edited by Justine Greve, M.A., a staff member at the Kansas Court of Appeals, and Shelley Spacek Miller, J.D., a staff member at the National Center for State Courts.
The Summer 2015 report has just been posted, and one interesting study compares views about police legitimacy among residents of St. Louis County, Missouri, in interviews taken before and after the August 2014 shooting of Michael Brown. Researchers from Southern Illinois University Carbondale had done extensive interviews of nearly 400 people living in high-crime and disadvantaged parts of St. Louis County for a study on policing in 2012 and 2013. Most of the respondents in that survey lived within six miles of where Brown was killed. So the researchers followed up with new interviews of the same people in September and October 2014 to compare public perceptions before and after Brown’s shooting.
The 2014 questioning came immediately after protests, looting, and violence that followed the Brown shooting. The interviews asked questions related to police legitimacy (defined by the researchers as “a view that police authority is valid and to be respected and adhered to”) and to trust in police and procedural justice (defined by the researchers as “a belief that police act fairly, impartially, and respectfully”).
Overall, perceptions of both police legitimacy and trust/procedural justice declined (by 5% and 17% respectively). But the perception rose slightly for nonblack residents (up 2% for each) while falling significantly (by 8% and 26%) for African-American respondents. Views also diverged in feelings about the public and police responses. A majority of nonblack respondents disagreed with the public’s response to the shooting, while a majority of blacks agreed with it. A majority of nonblack respondents agreed with the police response to protests, looting, and riots in the area, while a majority of black respondents did not.
This study, of course, captures views from only a small geographical area, but the respondents certainly intensely experienced the events of that time. It’s one of many new research articles and reports that you can find in the latest Quarterly Research Report.
An evaluation report published last week concluded that the Red Hook Community Justice Center located in Brooklyn, New York, reduces recidivism and crime in the geographic area it serves. The evaluators conclude that a key factor is the public’s view of the court—and its judges—as legitimate:
“[B]ased on the available evidence, it appears that the Justice Center’s impact on crime and recidivism results primarily from the Justice Center’s ability to project its legitimacy to offenders and the local residential community rather than from strategies of deterrence or intervention.” (Lee et al, 2013, p. 164.)
This finding is consistent with a growing body of research showing that problem-solving courts are perceived by offenders as more procedurally fair than regular courts, and it is this difference that explains why offenders in adult drug courts fare better in terms of compliance with court orders and in recidivism.
This comprehensive evaluation of a community court offers a new dimension to our understanding of the role of the courts in securing voluntary compliance with the law. Ethnographic and other components of the evaluation demonstrate the extent to which the Justice Center is regarded as a truly local institution that shares the values of local residents. Recent procedural fairness research on policing in England and Wales emphasizes the importance of a “moral alignment” existing between the criminal-justice system and the public as a pathway to legitimacy and compliance. The study found evidence that the public’s perception that they have shared moral values with the police promotes voluntary compliance with the law, and that this perception complements the separate shared norm that there is a perceived obligation to obey police-officer commands, which is itself fostered through procedural-fairness principles. Thus, the public perception of shared moral values with those in authority complements the effect of authorities making decisions in what is perceived as a procedural fair manner.
Those combined forces—shared moral values and procedural fairness—seem to be at work in the Red Hook Community Justice Center. Before discussing that, though, some background is in order.
The Red Hook Community Justice Center opened in 2000 to serve the physically and socially isolated neighborhood of Red Hook. Planning for the Justice Center began at a time when the area was regarded as one of the crime-infested and run-down areas in New York City. The neighborhood is dominated by one of the largest public housing developments in the country. As part of the recent evaluation project, a team of urban ethnographers from John Jay College carried out extensive observations in the area served by the Justice Center. They also surveyed local residents and offenders. Other members of the research team interviewed key individuals from local organizations, such as the tenants’ association. The findings about procedural fairness stem mainly from evidence collected in that manner.
The following aspects of the Justice Center contributed to building legitimacy in the eyes of the local community.
Jurisdiction: The Justice Center is a multijurisdictional court, with the assigned judge hearing criminal misdemeanors, housing cases, and juvenile-delinquency cases. Inclusion of the landlord-tenant cases allows the Justice Center to make a difference in one of the core concerns of local residents: the quality of their housing and their relationship to the New York Housing Association. Through the housing court, the Justice Center made an immediate contribution to residents’ quality of life and provided them with a counterweight to the policies and actions of the New York City Housing Authority.
Community Engagement:The Justice Center and its staff became key participants in local initiatives—for example, leading efforts to reclaim a nearby park from drug dealers; sponsoring a baseball league and establishing other programs aimed at local youth; and making the resources in the Justice Center available to all residents.
The Judge:One judgehas presided over the Justice Center since it opened. His courtroom interaction with offenders and their families exemplifies procedural-fairness principles. In the Center’s early days, the judge made a lasting impression by his willingness to personally look at the conditions in public housing units at dispute in a case. He is highly visible in the neighborhood not just by regularly attending the meetings of local groups but also walking through the neighborhood.
The Courthouse Culture: Staff located at the Justice Center are expected to follow norms for interacting with visitors to the courthouse, whether they come as defendants or otherwise, that reinforce a sense of procedural fairness.
The evaluation included a formal test of the degree to which the observed reduction in recidivism rates could be attributed to either deterrence through more certain and meaningful punishment or intervention by providing treatment programs. Neither explanation received support. The evidence, although indirect, points solidly to the legitimacy the Justice Center has accumulated by demonstrating that it shares community values and practices procedural fairness in its decision making.
The findings of the evaluation are available in A Community Court Grows in Brooklyn: A Comprehensive Evaluation of the Red Hook Community Justice Center. Both the full report and an executive summary are posted.
Trust is an essential component of procedural fairness, which, in turn, has been shown to be a key source of legitimacy for decision-makers. All public institutions now face serious skepticism from the public about their trustworthiness. However, a trust deficit – and the resulting lack of legitimacy – are of particular threat to the judiciary. Legitimacy is essential if courts are to be respected and, indeed, if court orders are to be obeyed. Simply put, failure to maintain and enhance the legitimacy of court decisions imperils the judiciary as an institution and the vital role assigned to the judiciary in our Constitutional tradition.
The threat is real. Today, 75% of the American public thinks judges’ decisions are, to a moderate to significant extent, influenced by their political or personal philosophy. Of course, judges have a range of philosophical views and exercise discretion, so some differences of opinion among judges are to be expected. But 75% of the American public also believes judges’ decisions are, to a moderate to significant extent, influenced by their desire to be appointed to a higher court.
Two recent articles explain the potentially grave implications.
First, Politico recently published a contribution by law professors Charles Geyh and Stephen Gillers advocating for a bill to make the Supreme Court adopt a code of ethics. They argue:
[I]t would be a mistake for the Court to view the [ethics] bill as a challenge to its power. It is rather an invitation. No rule is thrust on the justices. Under the … bill, the justices are asked to start with the code governing other federal judges, but are then free to make ‘any amendments or modifications’ they deem ‘appropriate.’ A response that says, in effect, ‘We won’t do it because you can’t make us’ will hurt the court and the rule of law.
Second, Linda Greenhouse, a regular commentator on the New York Times Blog “Opinionator,” recently wrote this post about the Foreign Intelligence Surveillance Court entitled Too Much Work?. Greenhouse writes:
As Charlie Savage reported in The Times last month, Chief Justice John G. Roberts Jr. has used that authority to name Republican-appointed judges to 10 of the court’s 11 seats. (While Republicans in Congress accuse President Obama of trying to “pack” the federal appeals court in Washington simply by filling its vacant seats, they have expressed no such concern over the fact that the chief justice has over-weighted the surveillance court with Republican judges to a considerably greater degree than either of the two other Republican-appointed chief justices who have served since the court’s creation in 1978.)
What do these two pieces mean for judges? Both articles highlight how the judiciary itself, if not careful, can contribute to the erosion of public trust in our decisions. To be sure, the erosion of the legitimacy of judicial decisions is not entirely the fault of the Supreme Court, nor of judges in general. The media, for example, often refers to which President appointed a judge as a shorthand way to explain a decision. But that is, in part, why Ms. Greenhouse’s piece is important. The Chief Justice is recognized as a brilliant man. He and every other judge in the United States know the inevitable shorthand the media will use to describe judges and to explain their decisions. And so the Chief Justice, the members of the United States Supreme Court, indeed every judge in this country needs to be particularly sensitive to what we are doing that might either advance trust in courts or contribute to the erosion of the legitimacy of our courts. The bottom line is: Appearances make a difference. There will be decisions by judges at every level of court that test the public’s trust in our wisdom. It is therefore imperative that judges act in a manner that builds a reservoir of goodwill so that people will stand by courts when a decision is made with which they disagree. There may have been an era when trust in the wisdom and impartiality of judicial decisions could be taken as a given. But if there was such an era, we no longer live in it. Trust and legitimacy today must be earned.
Her comments: “Oral argument is a unique opportunity to get an ‘executive summary’ of the important issues in the case from the perspective of the advocates. Both as an outgrowth of my experience as a trial judge, and as an appellate judge, I have the following suggestions for judges. First, prepare. Read the briefs, distill the issues down to what you think is most important and identify the aspects that trouble you. This would seem to be axiomatic, but I fear that it is not. There are most definitely judges who take the bench without having spent the necessary time to focus in on the issues in dispute. Second, be respectful: of counsel (let them make their argument) and of your colleagues. Hypothetical questions are seldom a good use of counsel’s or the Court’s time; and leveraging questions against another member of the Court is transparent and ineffective. If there is a built-in division on the Court, it is not likely to go away as a result of some targeted question to counsel. Third, remember that oral argument may be the ONLY chance the litigants have to see the appellate process at work. The impressions that the Court leaves will be lasting. Hence, judges must conduct themselves in a dignified manner that reflects well on the system. I remember all too well, as an advocate before an appellate court in Colorado (a long time ago), being upbraided for having seated my client at counsel table, rather than in the audience. The client was completely befuddled, and asked me how the Court could possibly justify excluding from counsel’s table the person who had the most to gain or lose from the proceeding. All of my explanations about passion or prejudice fell on deaf ears. And, in the vein of public perception, judges should make sure that arguments are available to the public – either by audio or video recording. Although argument may not be the most important part of the case from the judges’ perspective, it is the only public part of the case. Court proceedings are by, for and of the public – unless some extraordinary circumstance dictates otherwise.”
Lewis Remle is the Top Point Getter in Minnesota in this year’s Super Lawyers list. This is the ninth time he has received this prestigious honor:
His comments: “I think one of the biggest concerns trial lawyers have is whether the trial judge they will be arguing to has read the briefs which are the subject of the motion before the court. In defense of trial judges, their schedules are such that often times they might not have had the opportunity to review the motion papers as thoroughly as they might hope. One of the most effective methods I have seen trial judges use is to start the proceedings with specific questions he or she would like the lawyers to respond to relating to the dispute. This method has the immediate effect of sending the message that the judge has read the materials and puts the lawyers on notice that they need to tailor their arguments to not only answer the questions or questions but also that simply regurgitating the arguments in their brief will not be a n effective or persuasive presentation. I realize that this method is not always possible and may not apply to some motions but to the extent a judge can pre-empt the structure of a lawyers argument I think it is more likely that there will be some benefit to oral argument because I think lot of lawyers assume the judge has not had the opportunity to read the materials and so they simply parrot what is already in their briefs.”
One of the reasons to focus on procedural fairness is that the public’s perception of it drives overall public approval of the courts. This is especially important in times like these, in which public confidence in government and other institutions is below historical norms. The United States Supreme Court is historically the leader in public support among courts, so it’s always of interest when Gallup reports the approval level for that court as it begins each term.
This year’s report card raises concern that the perception of the Supreme Court may be dropping on a long-term basis as people view them as increasingly political in their work. Gallup’s September 2012 survey showed less than half of the respondenrs, 49%, approving the way the court was handling its job with 40% disapproving. While that was up slightly from the 46%-45% approval found in a July 2012 survey—taken right after the healthcare ruling—it’s well below the 62% approval the court had in 2000 or the 61% approval it had in 2010.
Behind the number, though, is a partisan divide that has been evident since Bush v. Gore in 2000. Approval by Democrats slipped to 42% in 2001 and stayed in the 40’s until President Barack Obama’s election. But once he began appointing justices, support among Democrats increased to 75% in 2009. Republican approval reached 75% in 2006, but it fell to 49% in 2009. And a further drop in Republican support occurred after the healthcare decision: in September 2012, Republicans disapprove the job Supreme Court is doing (56%-36%) while Democrats approve it (57%-34%). Fortunately, Independents were positive (50%-35%), giving the court an overall approval in positive territory (49%-40%), even though slightly below the 50% mark.
On the plus side, Americans have greater trust in the judicial branch of government than in either the legislative or executive. Gallup’s September 2012 survey also asked how much trust respondents had in each branch, and 67% had a great deal or a fair amount of trust in the judicial branch, while the numbers for the other branches were 56% (executive) and 34% (legislative). And on this question there was less partisan divide: Republicans (62%), Democrats (69%), and Independents (68%) all had relatively good levels of overall trust in the judicial branch of government.
What’s the take-away message here? We’re in a time when public trust in government cannot be taken for granted, and there’s a growing suspicion that judges are political actors. Against this background, it’s vital that judges do our best to provide procedural fairness, which is a key component for maintaining public confidence in our work.
The principles of procedural justice and fairness — giving voice to litigants and other “clients” of courts, basing decisions on established rules rather than personal opinion, providing respectful treatment, and establishing trust — do not just apply to fair and just treatment of members of the public who appear in court, but also to the way judges engage with each other.
This commonality came to mind as I watched a video of an Open Society Foundation-sponsored talk by Albie Sachs, the former judge on the Constitutional Court of South Africa, an activist and a leading campaigner in the fight against apartheid. In the video, Sachs discusses his 2011 book, The Strange Alchemy of Life and Law, written as his term on the Constitutional Court was ending.
Sachs was appointed to the Constitutional Court of South Africa by President Nelson Mandela. He conveys with intimate candor what it was like to be a judge in the unique circumstances of post-apartheid South Africa, how his extraordinary life influenced his approach to the cases before him, and how, in this “alchemy of life and law,” the intangible qualities of passion and concern for protecting human dignity are required for law to work in the service of justice in a democracy.
Sachs speaks in the video about what makes an effective judge in terms of the “three Cs”- civility, courage, and collegiality. Civility, he says, is not just good manners. It is respecting people with whom you differ, perhaps very sharply. It provides a framework in which one can discuss and debate without rancor. Civility is critical on the bench among the judges themselves and between a judge and counsel and witnesses. Judges, he emphasizes, owe a clear duty to citizens to maintain a framework of civility in the court.
Sachs goes on to speak passionately about the quality of courage, which means following one’s conscience and having the integrity and conviction to speak the truth as one sees it, even when it’s inconvenient, even when it is embarrassing and unpopular, and especially with people one likes and respects. Going along simply to get along, he might say, suggests a lack of courage.
His third “C” is collegiality, the capacity and willingness to engage with one’s colleagues in a rational way toward common ground, without divisiveness and without ill will.
As I listened to the video, I thought Sachs was defining procedural justice and fairness within the internal sphere of the court. Though Sachs’ focus is on civility, courage, and collegiality among judges, it seems that the same qualities are required of judges to achieve procedural justice for litigants and other “clients” of the court.
The traditional concern of judges and a core goal of courts emphasized in legal education is to provide people with a forum in which they can get justice as it is defined by the framework of the law. Judges pursue this goal through the correct application of law to the facts of a particular legal dispute. A second goal, one that Tom Tyler associates with the tenets of procedural justice, is “to handle people’s problems in ways that lead them to accept and be willing to abide by the decisions made by the courts.” The goal requires courts to maintain public trust and confidence, which Tyler says is “the key to maintaining the legitimacy of the legal system.” He acknowledges that procedural justice applies not only to litigants but to other people who work in the court system.
In the Open Society Foundation’s video, Sachs discusses an admirable modus operandi of the justices who sat with him on the South African Constitutional Court. When a majority had solidified around an opinion, all the members of the Court rallied around the prevailing opinion and actually helped strengthen it, even if they disagreed with its conclusions. Rather than framing their disagreements in terms of winning or losing, their shared goal of maintaining the Court’s legitimacy and enhancing public trust and confidence in the Court remained tantamount.
This to me is civility, courage and collegiality at its best. And it is at the essence of procedural justice. The manner in which disputes are handled, no matter in which part of the judicial process it is applied and with whom, affects procedural justice.
Ingo Keilitz is a principal court researcher at the National Center for State Courts.