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  • Captain LaPonda J. Fitchpatrick (Ret.), SHRM-SCP

Procedural Justice is a Must for Today's Law Enforcement Agencies


Police officers are the most visible elements of government in a civil society. They are the only form of government that can temporarily revoke a person’s freedom of movement or take such action that results in grave bodily injury or death without due process based solely on the officer’s perception and understanding at the time of an incident. When conveying so much power, the public must have faith and trust that a police officer making these critical decisions has the legitimate authority and the necessary training to make such a decision, and that the decision was based solely on the situation at hand and not due to other factors such as conscious or unconscious bias, prejudice, or lack of training.

“Building trust and nurturing legitimacy on both sides of the police/citizen divide is a core principle underlying the nature of relations between law enforcement agencies and the communities they serve.”[1] Law enforcement agencies must take overt actions to build community and political trust by facilitating initial, and conducting recurrent training for their police officers in procedural justice, legitimacy, and cultural competency, which are the foundational components of an effective community centered policing model that police agencies must return to.

Winning Our Community's Faith Back

Police officers are overwhelmingly heroes that care deeply about the communities they serve. They risk their lives every day to ensure that people are safe. This cannot be denied and must be constantly applauded. Unfortunately, not every police officer lives up to this title in every encounter, and bias, implicit or otherwise, is a very real part of how a police officer does his/her job. As described below, by developing a law enforcement officer’s cultural competency and addressing our innate human biases, police officers and those that support them are able to reduce conflict and exhibit benevolence and professionalism in every encounter.

The ability of police officers to effectively and competently operate within the community they serve that may not be similar to them in many ways, will foster another level of understanding and empathy for the plight a person may find himself or herself in when encountering a police officer and create a space for mutual respect. Cultural competency further provides the community with a certain measurement of faith that the agency and its officers have an understanding of the community’s population and needs, and can provide professional services based on this knowledge. This level of understanding and professionalism fosters legitimacy and provides a foundation for the community to willingly convey authority to a law enforcement officer during an encounter and voluntarily submit to that authority.

Procedural Justice and Legitimacy

Law enforcement can be viewed as an insular occupation. By its very nature, it cultivates a level of explicit and implicit bias where the development of the “us” against “them” mentality is fostered as a mechanism to promote officer safety and develop the comradery necessary in a para-military occupation. Police work is inherently dangerous; that, in today's society is unfortunately a given. Conversely, not every person a police officer encounters is dangerous and not every situation poses a threat.

In the latest statistics from the US Department of Justice, in the year 2011, over 62.9 million U.S. residents age 16 or older, or 26% of the population, had one or more contacts with police during the prior 12 months with over 76% of the people contacted believing that the police officer(s) behaved properly and treated them with respect and dignity. (As expected, the number for traffic stops was lower at 66%) Further, as it relates to traffic stops, "...about 1% of drivers pulled over in traffic stops had physical force used against them by police. Of these drivers, 55% believed the police behaved properly during the stop." [2] Is that 1% too many? Yes, of course. We want 0% uses of force and based on the fact 55% of the drivers involved where force was used admitted that the force was proper, the community also plays a large role in when force is used. However, 99% of encounters during traffic stops resulted in no force used and the mission of the officer was accomplished. Still, police officers are taking the "I'd rather be tried by 12 of my peers than carried by six of my friends" mentality into every police encounter which, in itself, can frame the outcome of the encounter itself before it has even begun. This mindset appears to go beyond simple officer safety leading the police officer to go on the offense where his or her actions precipitate a physical confrontation.

Communities see law enforcement’s role as becoming less about justice, reducing criminal activity, and addressing crime-related social issues, and more about acquiring bigger, more militarized weapons and tactics that increase the cavernous divide between the law enforcement agency and its constituents. Law enforcement has come to be viewed as an illegitimate occupying force rather than a part of the community at large. Communities believe collectively, law enforcement has lost sight of the fact that on a daily basis there are no enemies to vanquish, only communities and constituencies to serve. This is particularly notable in communities that are heavily populated with minorities and others that are historically seen as marginalized.

Further, the community has come to think that law enforcement has dropped the “para” in para-military, which the community has deemed an inappropriate response in civil society. In a number of civil protests and community events that have resulted in clashes between law enforcement and the community, the use of military style vehicles and weapons have supported the premise that law enforcement has forgotten its’ role as protectors and caretakers of the public peace.[3] This is not to say that tactical equipment is not necessary in the proper hands, in the proper situation, and with the proper training. We saw this in the 2015 terrorist attack in San Bernardino, California, where highly trained, specialized law enforcement officers appropriately engaged the two highly armored suspects and brought the deadly situation to a successful conclusion. However, that type of event is still extremely rare. In a civil society, tactical equipment such as this should be used as a last resort and not the first against non-combatant civilians.

“In 2012, we began asking the question, ‘Why are we training police officers like soldiers?’ Although police officers wear uniforms and carry weapons, the similarity ends there. The missions and rules of engagement are completely different. The soldier’s mission is that of a warrior: to conquer. The rules of engagement are decided before the battle. The police officer’s mission is that of a guardian: to protect. The rules of engagement evolve as the incident unfolds. Soldiers must follow orders. Police officers must make independent decisions. Soldiers come into communities as an outside, occupying force. Guardians are members of the community, protecting from within." ---Susan Rahr, Task Force Member[4]

Law enforcement agencies may have erroneously believed that their legitimacy for doing their job has rested solely in their oath of office and their uniform. “It is only in the last few years that police chiefs have begun to use the words ‘legitimacy’ and ‘procedural justice’ in national conferences of police executives, where new concepts and approaches are often given their first major airing. General concepts of legitimacy and procedural justice in government have been the subject of research and academic study for a longer period of time, but these ideas are fairly new in the field of policing.”[5]

When the constituencies that law enforcement agencies serve believe that a law enforcement agency is no longer supportive, helpful, and a part of the community, the community has the power, and believes they have the responsibility to withdraw the authority that it has granted in the form of no longer cooperating with the police.

Similar to the concept of jury nullification, where a jury knows that the accused committed the offense but believes that the nature of the crime and/or how the accused was treated is unjust, they purposefully fail to issue a verdict of guilty. [6] We have seen evidence of this withdrawal in a number of protests that have occurred throughout our nation where the public refuses to willfully and voluntarily comply with the instructions of police officers. Thus, every motive of law enforcement is now being painted with this very broad brush of illegitimacy and injustice, subject to the community’s nullification of the police action, because in a number of communities, they do not believe the law enforcement officer is operating from a procedurally just and legitimate position. Based on recent surveys, this belief and lack of trust in law enforcement is beginning to increase in non-minority, non-marginalized communities as well.[7]

In President Barack Obama’s task force report on 21st Century Policing, communities must believe that during law enforcement encounters, the police officer is:

  1. Treating people with dignity and respect;

  2. Giving individuals “voice” during encounters;

  3. Being neutral and transparent in decision making; and

  4. Conveying trustworthy motives.[8]

When a police officer is viewed as operating from these four principles, it can provide the community with some measure of comfort and reasoning that the requisite authority given to the law enforcement officer to do their job is appropriate and necessary. Resistance in police encounters is, in effect, withdrawing the officer’s authority and viewing their actions as illegitimate and unjust. “To achieve legitimacy, mitigating implicit bias should be a part of training at all levels of a law enforcement organization to increase awareness and ensure respectful encounters both inside the organization and with communities.”[9] This training should be a shared endeavor between the police and the community where each can address their implicit biases.

Cultural Competency

Cultural competency is the ability to be actively aware of issues of racial, social, economic, and language diversity and related challenges that are faced by marginalized populations that have historically been under-served. When law enforcement officers are culturally competent, they can better serve the community by bringing a level of empathy and understanding of the situation a community member may find themselves and have a better opportunity to build positive relationships with those they serve. Similarly, this provides a platform by which the community can appreciate and gain a better understanding of a police officer's actions when they view those actions through a lens of mutual respect and understanding. This can increase community engagement to reduce crime, conflicts, suspicions, and provide a pathway for the provision of more effective police services.

Consequently, when controversies occur, the community will again use the lens of familiarity and trust to make an assessment of the situation, giving the agency the benefit of the doubt prior to making a snap judgment. Providing police officers with the training and tools to work with a community that does not necessarily look like them will increase positive community and police relations. “You don’t have to look like the people you police, you just have to care.” [10] This is the foundational principle of Cultural Competency in policing.

According to Dr. James E. Hendricks Cultural competency is a process that involves three steps for law enforcement officers to understand and embrace:

  • Step 1: Cultural Tolerance:

Understanding that all individuals come from different backgrounds, and as individuals, citizens, and law enforcement officers, we have to work with each other in order to better serve and protect our communities.

  • Step 2: Cultural Acceptance:

Accepting that cultural differences exist and that they have an effect on the way we interact with other individuals from different backgrounds and cultures in serving and protecting our communities.

  • Step 3: Cultural Competency:

The process of learning various cultural value systems that others have and using that knowledge and competency to better interact with them in order to better serve and protect the community”. [11]

Here, I have added a fourth step in this process:

  • Step 4: Bias:

By teaching police officers to recognize that they, as well as the people they encounter, have explicit and implicit biases and that these biases are a part of the innate human condition, it will better prepare them to recognize when their behavior is based on these biases and not necessarily in response to the incident at hand. These biases can be based on prejudices, prior encounters, instilled by false information and assumptions, and/or what we have been taught, among other ways. The important factor is that we recognize that we have bias and act accordingly to reduce its effect on our conscious and unconscious decision-making processes.

"A mental shortcut becomes almost irresistible and maybe even rational by some lights. The two young black men on one side of the street look like so many others the officer has locked up. Two white men on the other side of the street—even in the same clothes—do not. The officer does not make the same association about the two white guys, whether that officer is white or black. And that drives different behavior. The officer turns toward one side of the street and not the other. We need to come to grips with the fact that this behavior complicates the relationship between police and the communities they serve.” FBI Director James Comey [12]

Internal Agency Dynamics

Fostering cultural competency internally within the law enforcement agency and reducing implicit bias will provide an added bonus because, “It follows that officers who feel respected by their organizations are more likely to bring this respect into their interactions with the people they serve.”[13] Because law enforcement departments are becoming more culturally diverse, fostering cultural competency internally within the law enforcement agency too will provide a platform for more effective workplace communications and collaboration. By creating a safe space in which honest and open dialogue between officers, their peers, and their supervisors and management can take place to actively explore the concepts of bias as an academic pursuit of understanding and acknowledgement, this can only add value to law enforcement encounters with the public and between themselves.

Training

Finally, inviting constituents and political officials to participate in courses with the officers will build credibility and support for the work that is being done. It also allows the officers to see that everyone has bias; even the community they serve and the officials they elect and may be held to answer. It then creates a conduit to allow for officials and the community to speak to their cohorts about the work that is being done.

Conclusion

To be effective, law enforcement agencies must answer to their communities, respect them as individuals, and voluntarily become a part of the solutions and not an added problem. Training in procedural justice and legitimacy, cultural competency, and explicit and implicit bias are critical to achieving the goal of bringing the police and the community together to address the issues that are plaguing our society and return a police officer to the status of hero.

References:

[1] President’s Task Force on 21st Century Law Enforcement. http://www.cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf

[2] Police Behavior During Traffic and Street Stops, 2011, Bureau of Justice Statistics. http://www.bjs.gov/content/pub/pdf/pbtss11.pdf

[3] President’s Task Force on 21st Century Law Enforcement. “Law enforcement culture should embrace a guardian—rather than a warrior—mindset to build trust and legitimacy both within agencies and with the public.” Page 1

[4] Ibid. Page. 12

[5] U.S. Department of Justice, Bureau of Justice Assistance. “Legitimacy and Procedural Justice: A New Element of Police Leadership, A Report by the Police Executive Research Forum (PERF). Edited by Craig Fisher. March 2014

[6] Reynolds, Glenn Harlan. “Reynolds: Nullifying juries more interested in justice than some”. USA TODAY, August 6, 2015 prosecutorshttp://www.usatoday.com/story/opinion/2015/08/06/jury-nullification-prosecutorial-discretion-

column/31124011/.,

[7] Nam, Michael. “New Polls: White American Views on Race and Police Starting to Change”. DiversityInc., May 5, 2015. http://www.diversityinc.com/news/new-polls-white-american-views-on-race-and-police-starting-to-change/

[8] President’s Task Force on 21st Century Law Enforcement. Page 10

[9] Ibid. Page 11

[10] Tracie Keesee and Michael J. Nila, "Fairness and Neutrality: Addressing the Issue of Race in Policing," The Police Chief 78 (March 2011): 34–39. http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=2334&issue_id=32011

[11] Hendricks, James E. Personal Communication. March 30, 2011

[12] FBI Director James. February, 2015. http://journalistsresource.org/studies/government/criminal-justice/police-reasonable-force-brutality-race-research-review-statistics#sthash.74nB04lE.dpufhttp://journalistsresource.org/studies/government/criminal-justice/police-reasonable-force-brutality-race-research-review-statistics

[13] President’s Task Force on 21st Century Law Enforcement. Page 10.

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