What a Biden administration could mean for policing

'Procedural justice' and 'police legitimacy' are poised for a comeback

LOOK FOR THE terms “procedural justice” and “police legitimacy” to re-enter the vocabulary of the West Wing. As the incoming Biden administration forms its policy on policing in the US, also look for the name Tracey Meares to start appearing in transition papers on criminal justice matters. Professor Meares was a leading member of President Obama’s Task Force on 21st Century Policing. In their report in May 2015, the Task Force argued, “Building trust and nurturing legitimacy on both sides of the police/citizen divide is the foundational principle underlying the nature of relations between law enforcement agencies and the communities they serve.”

This Job No. 1 will require dialogue and collaboration — honest, sincere sharing of work and perspectives between police and the communities they serve.

Joe Biden almost helped start us on this path 11 years ago at the famous “Beer Summit.” In July 2009, Biden and President Obama brought together the parties from an incident in Cambridge that had become a national controversy. As Cambridge Police Sergeant James Crowley enjoyed a Blue Moon and Harvard professor Henry Louis Gates Jr. a Sam Adams Light, the two men almost got a dialogue off the ground. Both were sincere. But when they could not quite reconcile their perceptions of the incident that brought them together, the chat could not quite get to the examination of the larger forces operating in and on both of them.

In the end, that was too much to expect from two people thrust into the global spotlight without their consent. But the exchange they did have was significant. Perhaps the most illuminating aspect of the get-together was that it happened. In what other field of endeavor can a seeming routine business operation end up as subject matter for a beer on a White House patio, with the president of the United States buying? The summit once again showed us the critical nature of policing in our republic and the critical importance of getting it right.

The conversation about procedural justice and police legitimacy that percolated around the Crowley-Gates moment has more depth and energy in late 2020. The killing by Minneapolis police of George Floyd and the naked appeals to racial fear and hatred by President Trump have put racism on the national agenda. One outcome of this election is that racial prejudice and racial privilege are now part of the national conversation in a way they have not been before. Americans cast about 150 million votes in an election which was in at least some measure a referenda on systemic racism and government legitimacy. In his victory speech on November 7, President-elect Biden declaimed loudly that systemic racism was on the agenda.

A commitment to earning legitimacy is one useful therapy for the injuries that racism has inflicted on black Americans and on US society generally. It is a powerful strategic instrument for the police service. Lawful and legitimate once meant the same thing. They diverged over the course of human history and the rise of complex, modern nation states. The best, or worst, examples of the separation arose in Nazi Germany and the American South.

Under Nazism genocide was legal and saving human lives was a capital crime. Under slavery, human bondage was legal and escaping and facilitating escape were capital crimes. (Genocide of, and land theft from, Native Americans were both unlawful and illegitimate.) We can re-unite these two elements in a successful republic if we try.

In the context of our times, police legitimacy may sound to some like a left-wing concoction arising from an anti-cop bias. In fact, the principle that government must earn legitimacy is the bright, gold thread running the length of the Federalist Papers. It is enshrined in the Bill of Rights. Each of the first 10 amendments to the Constitution requires government to have a legitimate basis for intervening in the lives of Americans.

In the Founders’ eyes, lawful and legitimate meant the same thing, even as they stared at slavery. The 10th Amendment makes it especially clear that the government must not take legitimacy for granted. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

It’s time to rescue the policing conversation. We should be surprised if Tracey Meares is not in a key post or advisor role in a Biden administration. Professor Meares’s voice on the Obama Task Force was powerful because she is a pioneer of the policing philosophy of procedural justice, as a thinker at Yale Law School and as a teacher and advisor to many police departments.

Meares and fellow Yale scholar-practitioner Tom Tyler have collaborated on research that demonstrates the link between how people are treated and how they view the police. The views have less to do with whether a person believed he or she deserved the sanction (citation, arrest, interrogation) and more to do with how the member of the public felt he or she was treated during the encounter. I believe that what they tried to tell us earlier in this century is now obvious to many millions of Americans.

“Research demonstrates that people are more likely to obey the law when they believe authorities have the right to tell them what to do,” Meares has said. “Police—as well as other authorities—establish this ‘right’ by treating people fairly and with respect. People place more weight on how authorities exercise power as opposed to the ends of that power. They care how they are treated—with dignity, politeness, and concern for their rights.”

Consider the supposedly routine practice of motor vehicle law enforcement. A department’s leadership might initiate a dialogue with officers and community residents about the why and how of traffic enforcement. Gather, analyze, and share data.

We might ask, what are the goals of our traffic enforcement strategy? Are we achieving our stated goals with our enforcement practices? Do we administer justice evenly across people of all ethnicities? Do people feel we do that? If they don’t perceive the process as fair, do we take that as a serious measure of deficiency or dismiss perception as irrelevant to enforcing the law? How do our personnel perform under conditions of fatigue, emotional duress, and the biological stress of constant wariness? How well do we educate our personnel to manage emotional and biological adversity and treat each person with respect and dignity? We might even get to the point of asking, what responsibilities do residents have for driving practices that cause death, harm and property damage?

Only a sincere dialogue that involves line police personnel and community residents can adequately address these strategic questions.

Tyler has written, “Legal authorities gain when they receive deference and cooperation from the public. Considerable evidence suggests that the key factor shaping public behavior is the fairness of the processes legal authorities use when dealing with members of the public. This reaction occurs both during personal experiences with legal authorities and when community residents are making general evaluations of the law and of legal authorities. The strength and breadth of this influence suggests the value of an approach to regulation based upon sensitivity to public concerns about fairness in the exercise of legal authority.”

In the spirit of the Bill of Rights, the right to police in a community is earned on every shift and in every encounter. Building and maintaining legitimacy in the community-police relationship will be critical to our realizing all the possibilities before us.

Meet the Author
Jim Jordan is the former director of strategic planning for the Boston Police Department and co-principal of Public Safety Leadership. He has taught policing courses at Northeastern University and the University of Massachusetts Lowell.