April 30, 2002
Group Four Draft Report.Wpd
The Legitimacy of Policing

	So far, we have presented the important results of social science investigations into what the police do, and what important factors shape their conduct. We have also looked closely at one important impact the police can have on the quality of our individual and collective lives: namely, their ability to reduce crime, enhance security, and reduce disorder.

	Importantly, the question of whether the police have been successful in reducing crime and fear can be, should be, and has been carefully investigated through standard social science methods. But the importance of these findings go beyond mere academic or scientific interest. The reason is that society as a whole has a practical as well as an intellectual interest in knowing whether the police have been able to produce these results. After all, reducing crime and enhancing security is one of the major goals that citizens have for police departments. So, learning whether the police have been successful in reducing crime and fear is important to our normative evaluation of the police, as well as our scientific interests in understanding their behavior. That normative evaluation, in turn, could and should have real consequences as citizens consider whether it is worth entrusting their money and their liberty to the police in hopes that they can keep them safe and secure.

	While it is quite natural and appropriate to use scientific methods to investigate whether the police have been successful in achieving their core mission, once we have entered into the realm of developing normative standards to be used in assessing the impact of the police on the quality of individual and social lives, we have to consider whether reducing crime and fear are the only important effects of policing that should be explored. Perhaps there are other effects that police have on society that are also important, and can be measured through the use of social science methods.

	The most common other normative concern that arises about the conduct of the police is a concern about their fairness and restraint. This concern arises primarily because the police are authorized to use force and authority in carrying out their mission. When the authority of the state is used, those who are subjected to it have a right to understand its use, and to query whether it has been brought against them fairly and justly. All the rest of us citizens who are witnesses to the use of state authority, and also vulnerable to its use, may also want to be sure that the police are operating fairly and with restraint. We could characterize this concern as one that focuses on the legitimacy of the police as well as their crime control effectiveness. In essence, we could imagine that police in general, or any specific tactic or program they adopted, could be evaluated not only in terms of its cost-effectiveness, but also in terms of its fairness, and the way in which it contributes to or detracts from the legitimacy of the police.

	To many, it may seem that the important question of whether the police are fair and legitimate is beyond the reach of social science. In this view, it is impossible to define fairness and legitimacy in any objective way, and therefore impossible to investigate the extent to which the police are, in fact, fair and legitimate in the way in which they operate. But that is not true. Indeed, as we learned in Chapter ____, some of the earliest and most important pieces of police research were animated by concerns about fairness, and developed empirical methods to discover the extent to which the police had discretion in how they behaved, and how they tended to use the discretion they had available to them. Those early, path-breaking studies in police behavior can be seen as similar to those later studies that sought to ascertain the impact of the police on crime in that they identified an important concern the public had about the police (e.g. whether the police behaved legally and fairly) and then used social science methods to make observations about this question in highly reliable and objective ways.  Their achievement was to show us that the world of policing was shot through with discretion, and that the choices the police made about how to use their discretion were only imperfectly guided by the legal standards that they ought to have been following. Concerns about whether the police behave fairly, whether they are racially biased, whether they are corrupt, whether they are brutal, or aggressive or trigger-happy, have continued to exist, and to be investigated through both social science methods, and those of criminal investigation.

	More recently still, social science researchers have begun exploring a related but somewhat different aspect of policing – something that might be called the “subjective legitimacy” of the police as opposed to either the “objective fairness” or the “procedural rectitude” of the police. By the subjective legitimacy of the police, we mean the judgments that ordinary citizens (who are simultaneously the financiers of the police, the “customers” of the police, and the objects of police attention) make about whether the police as a whole are fair, or whether they as individual callers or particular suspects been treated fairly by the police. This differs from the objective fairness or procedural rectitude of the police in that, with this second standard, we look at what the attitudes of citizens are towards the police, rather than compare the behavior of the police against an externally constructed standard of lawfulness and fairness.

	Again, both citizens and researchers might doubt that concerns about the subjective legitimacy of the police could be handled through relatively scientific, objective methods. In this view, perceptions of the police are, by definition, subjective. As such, they are hard to record in objective and reliable ways. Moreover, they may be highly volatile, and influenced by many things other than the behavior of the police. Finally, one could reasonably ask why anyone should be concerned about the subjective legitimacy of the police. 

	But there are answers to each of these questions. The subjective legitimacy of the police is no more (nor any less) difficult to measure than subjective levels of fear. If we think it is important to assess the impact of the police on the subjective state of security, then we can also assess the impact on subjective states of legitimacy. The fact that these impressions might be volatile and influenced by many things other than what the police do may well be true. But this is also true of fear. And, because these perceptions are part of what the police are charged with producing, it is important that we begin to measure these things precisely so that we can learn more about the extent to which the police can, in fact, shape these important perceptions. Finally, there is one crucially important reason to be concerned about the subjective legitimacy the police enjoy with the general population, those they serve, and those they stop, cite, and arrest. It is this: the more legitimacy the police enjoy with these different clients, the more effective the police can be in achieving their goals. Insofar as ensuring their legitimacy is one of their important goals, this is true by definition. But it is also true that if the police enjoy legitimacy with the population, they will be more effective in achieving their goals of reducing crime and fear. If citizens trust the police, they will be willing to invest more of their money and authority in the police, and resist the temptation to rely on various forms of private security. If citizens trust the police, they will call them when they need help, and help them identify offenders and the expensive apparatus we have developed to ensure that the police will respond to calls from citizens, and investigate crimes after they occurred will be more effective than if citizens were reluctant to call. If those stopped by the police think they have been stopped legitimately, they are more likely to come along quietly than if they think they have been unfairly rousted. Perhaps most importantly, if the police are seen as legitimate, at least one of the threats that might concern citizens – that they might be “mugged” by the police as well as by criminals – can be set aside. For all these reasons, it is important to be concerned about the subjective legitimacy of the police as well as their objective fairness and procedural rectitude.  

	In this chapter, we review the social science evidence on police fairness and legitimacy. The first subsection considers research on police compliance with law and the Constitution, and with the policies of their departments. Concern about police use of force and the intrusive exercise of their authority leads political institutions to develop rules whose goal is to bring police into compliance with such standards. The rules were adopted over time to promote police legitimacy, as a rule-bound institution engaged in the even-handed pursuit of justice and protector of individual liberty. As outlined in this report, early police research “discovered” police discretion and the variable use of force and authority by police officers on the street. Since, this has been one of the principal threads of police research. Courts, legislatures, mayors, and city councils impose standards for conduct on police; the empirical question has been the extent to which they are followed. To the extent they are serves as one measure of the legitimacy of police in a free society.

	A second subsection examines the views of the public when they assess the legitimacy of policing. Because legitimacy is at root a belief, this section focuses on the extent to which the public believes police are acting appropriately. It identifies the dimensions on which people assess the police, and the factors that enhance or detract from those views. Legitimacy is important to the police for everyday, practical reasons. Their work is easier when people think “the police have the right to make me do this.” Belief in the legitimacy of policing also sustains citizen cooperation with the police and involvement in mutual efforts to ensure neighborhood safety. But legitimacy is not the same thing as “popularity,” and it is only partly linked to police success in dealing with crime. The research review below concludes that in the end, legitimacy grows out of how police treat victims, witnesses, bystanders, taxpayers, people reporting crime, and those who commit crime. When they adhere to the rules, maintain their neutrality, and treat people with dignity and respect, their legitimacy increases. Citizens in a democratic society must be police by consent, and that consent is created and sustained by the process of policing itself.

	Another subsection examines the process by which police organizations attempt to garner legitimacy through  efforts made 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, policies and procedures that are viewed by the community and civic leaders as desirable. It can also be gained by hiring personnel and allocating departmental resources in whys 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.

LEGITIMACY AS PROCEDURAL RECTITUDE:
Police Compliance with Law and the Constitution

	The authority of police to enforce the law and promote community safety is circumscribed by the state acting on behalf of citizens. Citizens, in turn, are understood as having an interests not only in reducing crime, but also in ensuring the just enforcement of laws, and the protection of  individual liberty. This section reviews research on police compliance with these limitations

Legal and Constitutional Standards for Police Behavior

	In one conception of police legitimacy, the legitimacy of police activity is tied to police compliance with legal standards. Main aims of ensuring lawfulness in the conduct of the police include such ideas as ensuring that individual rights to liberty and property are protected, that individuals not be subject to unreasonable intrusions, and that individuals be treated fairly and without bias.  The Fourteenth Amendment to the United States Constitution forbids deprivations of life, liberty and property without due process of law.  The “rule of law [means] . . . that the citizen should be free from arbitrary power.”  Through their power to enforce laws – or not – police are invested with a great deal of power over the liberty interests of individuals. Concern about these issues has led to sustained scholarly interest in both the question of how the police use their discretionary power, and how best to control it.

	In recent decades concern about the exertion of arbitrary police power has driven important developments in constitutional law.  In 1935, The Supreme Court invalidated the defendant’s conviction by a Mississippi court because the conviction rested almost entirely on a confession extracted through torture.  The deputy sheriff who received Brown’s confession admitted at trial to beating the defendant.  The sheriff defended his actions on the ground that the beatings were “[n]ot too much for a Negro.”  In overturning Brown’s conviction, the Supreme Court articulated a constitutional standard of fundamental fairness for the evaluation of police practices – at those practices pertaining to interrogation –  to be applied to states via Fourteenth Amendment.

	Brown is important for several reasons. First, because it marks the first time the Supreme Court was willing to regulate police practices at the state level.  Second, because it marks out an important limitation on how the police can use their force and authority to generate evidence to be used at trial. Third, because it  demonstrates how closely the articulation of constitutional criminal procedural rights in the United States has been tied to this country’s history of racial discrimination.  The constitutional rules that prescribe the manner in which police are allowed to legitimately carry out their tasks have their genesis not only in the Court’s concerns about how much state authority is appropriate to use in the pursuit of law enforcement objectives, but also in the Court’s continuing concern with the fairness of policing – in particular, with its efforts to guard against  racial discrimination.

	Like Brown, later criminal procedure decisions -- a muscular body of interconnected doctrines that govern the everyday machinery of law enforcement  -- also were influenced by the court’s interest in both restraining the state, and in rooting out institutional racism and other forms of bias.  In the law, rules of criminal procedure provide the state-level linkage between constitutional principles and the daily actions of participants in the criminal justice system. Historically, law enforcement was a key instrument of racial repression, in both the north and the south, before the 1960’s civil rights revolution. Modern criminal procedure reflects the Supreme Court’s contribution to eradicating this incidence of American apartheid.  Supplanting the deferential standards of review that had until then characterized its criminal procedure jurisprudence, the Court, beginning in the 1960’s and continuing well into the 1970’s, erected a dense network of rules to delimit the permissible bounds of discretionary law-enforcement authority.  Although rarely couched as such, the unmistakable premise of these doctrines was the assumption that communities could not be trusted to police their own police because of the distorting influence of racism. 

	Examples of decisions reflecting the influence of racial discrimination include the following cases:  In Davis v. Mississippi, a seminal Fourth Amendment case, the police arrested twenty-four African-Americans in a dragnet roundup after a rape victim identified her assailant as simply a “Negro.”  In Cox v. Louisiana and Bouie v. South Carolina, officials had used vaguely worded statutes to arrest civil rights demonstrators.  Duncan v. Louisiana, the landmark decision applying to state trials the Sixth Amendment right to a jury, involved an African-American who had been convicted for an assault that arose from a dispute involving school desegregation.  Papachristou, which delivered a staggering blow to anti-loitering laws, involved two interracial couples arrested in a parked automobile.

	These decisions, while reflecting a concern for the effects of racism, make up a more general regime of criminal procedure that tells individual police officers when and how they can interact with criminal suspects on the street;  minutely regulates the nature of police interrogations of suspects in custody; and spells out in detail the procedures that police must follow before they conduct searches or engage in related forms of surveillance.  These rules constrain, both in substance and in form, the authority of police authority to maintain public order.   

	The articulation of rules, in and of itself, does not automatically lead to legitimate policing. The rules of criminal procedure are not self-enforcing. Even assuming that rules consistent with legitimate policing have been adopted by the court, it is necessary for individual officers to actually follow the rules.  The next subsections review existing research on the extent to which police follow the constitutional rules the Court has laid out to govern police behavior in three key areas:  interrogations, use of deadly force, and searches and seizures.

[MHM Comment: I’m not sure I would put quite as much emphasis on the role of the court in rooting out racial discrimination here. There were reasons to be concerned about excessive use of force, intrusiveness, and unfairness in the application of the law even without the influence of concerns about racial bias. At the same time, I have no doubt that concerns about racial bias animated much of the Constitutional Decision-making of the 60’s. I would suggest re-writing this to make the abstract points about the role of Constitutional law in simultaneously limiting the use of state authority and making sure that it is used fairly first, and then add the material about the power of concerns about racial discrimination later. Are there any good empirical studies of the Court’s Decision-Making and what influenced it in these periods?]

	Police Interrogations

	As noted above, the Supreme Court began its regulation of local police practices in a case involving a clearly unlawful interrogation. [MHM Comment: Two different things made it unlawful. It was excessive force. And it was biased]  In a series of cases between 1936 and 1964, the Supreme Court reviewed the particular facts of cases in order to determine whether a confession was voluntary and in accord with the Due Process Clause of the Fourteenth Amendment.  The difficulties inherent to administering a fact-based voluntariness test led the court to develop the more easily administered, and perhaps more effective, method of controlling interrogation techniques in Miranda v. Arizona.

	Miranda, holds that any confession obtained during custodial interrogation is compelled in violation of the right against self-incrimination unless a police officer has first given specific warnings to the person being questioned and unless rights are specifically waived by that person.  Miranda requires police to advise the person questioned:  (1) that he has the right to remain silent; (2) that police are entitled to use any statement he makes against him; (3) that he has a right to counsel; and (4) that counsel will be provided if the person questioned cannot afford it. In its ruling, the court went beyond previous and similar decisions, which in and of themselves were already influencing police practice in the United States. None of those prior cases altered the basic standard for admissibility of confessions or other evidence gathered by the police; at the time of the Miranda decision, the operating standard for confessions or otherwise incriminating statements elicited from a suspect in custody was “voluntariness”.  Only the FBI operated under specific instructions to issue a warning informing suspects in custody of their rights.

	Miranda is, no doubt, the most well-known criminal procedure decision in the United States. The positive obligation handed to law enforcement as the result of the decision provoked an immediate reaction (Dalton, 1984: 62-63).  Police officers - and many sympathetic political representatives and citizens - complained that the Miranda requirements would inhibit their ability to catch and convict criminals.  While predictions ran that issuing Miranda warnings would unnecessarily hamstring police in their pursuit of criminals, empirical studies have found that Miranda did not curtail the investigative function of police (Seeburger and Wettick, 1967; Wald et al., 1967; Medalie et al., 1968; Black and Reiss, 1967a, 1967b; Milner, 1971; Schaefer, 1971). The Chief Justice of the Supreme Court recently acknowledged its current status, stating, “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.”

	The Chief Justice’s remarks imply that police regularly adhere to Miranda’s strictures.  The research on this issue is of two types.  The “Miranda impact studies” comprise  the first category of research.  These studies examine confession rates before and after Miranda  was decided to see whether the warnings affected the number of confessions obtained by police.  The second type of research focuses on direct observation of the police.  The bulk of the studies of Miranda occurred shortly after the decision.

	One of the earliest studies that attempted to make an empirical assessment of police compliance came about when criminal justice researchers already in the field - Donald Black and Albert Reiss - took advantage of the unprecedented Supreme Court decision as a way of measuring police adherence to outside rules (Black and Reiss, 1967a, 1967b).  Their findings belied the police contention that interrogation was necessary in obtaining evidence against a suspect. Especially in Part I crimes, Black and Reiss noted police reliance on alternate forms of evidence against a suspect: physical evidence and other witness testimony (1967b: 53).  Their results dismayed others who had hoped to influence police behavior through the court.  Reiss and Black noted that in the field, where police officers initially encountered and arrested most suspects, the Miranda warning was rarely given (Black and Reiss, 1967a: 102-109).  

	The lack of compliance observed by Black and Reiss may have stemmed from the fact that the decision had only recently been handed down.  Subsequent empirical studies have agreed that police by and large do issue the Miranda warning, yet often in a perfunctory and superficial fashion (Wasby, 1970; Leiken, 1971; Baum, 1979).

	Summaries of Miranda impact studies suggest that implementation of the Miranda procedure may have resulted in an average reduction in confessions between a high a 16.1 percent and a low of 4.1 percent Milner (1971a, 1971b) attributed some inter-city variation in the use of Miranda to differences in police training and access to other sources of legal information across departments. Researchers have also pointed out, however, that Miranda fails to constrain police when they do not rely upon suspect confessions for conviction, and that  police should not put much weight on admissions when they occur absent other incriminating evidence.

	Miranda studies based on interviews with police or offenders, or on official records, cannot tell us directly whether police follow Miranda’s requirements; for this, the best evidence is direct observation.  Criminologist Richard Leo has compiled the best data on the topic.  In an observational study of police detectives, Leo found that detectives provided Miranda warnings that suspects in all the cases in which they were legally required to do so, in approximately 96 percent of the cases.  In the remaining cases, the Miranda warning was not legally required because the suspect was not technically “in custody.”  Several other empirical studies also conclude that police overwhelmingly follow the guidelines set forth in Miranda.

	Leo’s qualitative work, suggests, however, that officers sometimes deploy the Miranda warnings in ways to encourage the suspect to waive their Miranda rights.  Leo identified three “subtle psychological strategies” officers use.  The first strategy, “conditioning,” is characterized by efforts to structure the environment “so that the suspect is conditioned and positively reinforced to respond favorably to their questions.”  The second strategy, “de-emphasizing,” is characterized either by “blending the Miranda warnings into the conversation as if to camouflage it, or by explicitly calling attention to the formality of the Miranda warnings so as to understate it.”  The final strategy, “persuasion,” is characterized by a subtle but explicit effort by the officer to convince the suspect to waive Miranda rights.  Each of these strategies demonstrates that technical compliance with the legal guidelines only tells half of the story. 

Leo’s work implies that police seek to present the Miranda warnings in ways that encourage waiver of constitutional rights.  To what extent are officers successful?  Leo found that 78 percent of suspects ultimately waived their Miranda rights.  The only social, legal, or case-specific variable that was a significant predictor of the suspect’s likelihood to invoke Miranda rights was the existence of a criminal record.  After Miranda rights were invoked, 96 percent of suspects were returned to jail; in the remaining 4 percent of cases, detectives continued to question the suspects after informing the suspect that information provided could not be used in a court of law against him.

Leo is concerned by these cases because “what the detectives knew and did not tell the suspect was that although the prosecution could not use such evidence as part of its case-in-chief, any information the suspect provided to the detective nevertheless could be used in a court of law to impeach the credibility of, and thus indirectly incriminate, the suspect if he chose to testify at trial.”  In addition, Leo finds that a “suspect who waived Miranda was twice as likely to have his case resolved through plea bargaining, and this difference is highly significant.”  Despite the significant result, Leo concedes that much of this effect may be explained by selection bias.  

Cassell and Hayman also identify a police practice that, while consistent with the requirements of Miranda, represents a change in behavior designed to minimize Miranda’s practical effect.  Specifically, the authors conclude that “[e]vidence suggests that police have adjusted to Miranda by shifting to noncustodial ‘interviews’ to skirt Miranda’s requirements.”  Although much of their evidence for the change in behavior is anecdotal, Cassell and Hayman do indicate that 69.9 percent of their observed interviews were custodial while 30.1 percent were noncustodial.  Whether this represents a change from pre-Miranda figures is unclear.  Cassell and Hayman further argue that police were less successful in noncustodial interviews.  The fact that police have begun to use them more despite their lower rate of success suggests to the authors that, “contrary to the view of some defenders of Miranda, … interrogating police officers believe the Miranda rules are harmful to their efforts.”  Another way of interpreting Cassell and Hayman’s finding is that Miranda actually does provide individuals protection against state power. 

Excessive and Deadly Force

The potential for using force underlies many of the functions exercised by the police. In fact, the “Weberian” definition of “police” is that they are the body that is lawfully authorized to exercise deadly force against citizens of the state, and they hold a virtual monopoly over this power. As a price for holding this monopoly, and because it’s use is inevitable, there are standards for the application of force by police.When force is appropriate to use, and how much and what kind of force may be used T is defined both by Constitutional rules, and by statutes which create a liability for both Police Departments and individual police officers who misuse the force and authority entrusted to them.  In addition, police administrators usually strive for economy in the use of force; good police work, in this view, is policing that employs only the force that is required in a particular situation, and not more. Earlier sections of this report examined research on where in the “force spectrum” police place themselves, and some of the individual and situation factors that explain their choices. This section is concerned the proper use of force, one source of the legitimacy problem for police in the 21st Century.

In the United States, use of deadly force has been a major source of conflict between minority groups and the police, since the inception of the institution (WALKER POLICE HISTORY).  Numerous studies have demonstrated that the number of African Americans shot and killed by the police is vastly disproportionate to the number whites shot and killed.  Between 1950 and 1960, one study demonstrates that the rate of African Americans shot and killed by Chicago police was 16.1 per 100,000 compared to a rate of 2.1 per 100,000 for whites.  From October 1966 to October 1974, the Memphis Police Department recorded approximately 225 instances of firearm discharges to attempt to stop fleeing felon suspects.  One hundred fourteen of those shot by police were suspected of non-violent property crimes.  Of the 114 shot, 96 were African American.  In a study of fleeing felons in Memphis between 1969 and 1974, James Fyfe found that police officers shot and killed 13 African Americans and 1 white person.  Many see such disparities in the exercise of force lying at the core of challenges to the legitimacy of American policing in the 21st Century.

The constitutional rule adopted by the Court to circumscribe the use of deadly force by police officers is a product of another case imbued with racial tensions.  In the fall of 1974, Edward Garner, a fifteen year-old black boy weighing about 100 pounds, was shot and killed by police who arrived at a suburban Memphis residence in response to a report of a burglary.  In Tennessee v. Garner decided, which was decided in 1985, the Supreme Court overturned the permissive fleeing felon rules, which allowed police officers to use “all the means necessary to effect an arrest” even an unarmed fleeing felon once after notice of intention to arrest was given on the basis of the Fourth Amendment.  While Garner does not set out particular rules to govern the use of deadly force, scholars have argued that Garner led to changes in state law and administrative policy governing police use of force.  These rules in turn have been evaluated by scholars and appear to have had an impact on police shootings (see below).

It is important to note that Garner is a civil rights decision.  While there is no data tying changes in the levels of police shooting to civil suits, there is research on the related issue of excessive force used to effect an arrest.  Like deadly force claims, excessive force claims also are governed by civil suits grounded either in state tort law or federal civil rights laws or both.  Suits grounded in federal civil rights laws seek to enforce constitutional standards and have been acknowledged by the court to be important supplements to the exclusionary rule.  However, the extent to which these suits have a meaningful impact on police use of excessive force is unclear.  Certainly, with respect to many arrests, unless a civil constitutional claims is pursued, no relief will lie.  Courts have rejected requests to apply the exclusionary rule to an arrest in which the defendant was arrested on probable cause but in which the police utilized excessive force.

In addition to the important constitutional precedents that constrain police use of force, state legislatures have long been considered the governing level that determines general policy on police use of force.  This has become most relevant in light of the revision of the common law “fleeing felon” standard to more restricted circumstances under which police may legally exercise use of force.  Generally, states now allow use of force when in self-defense or when a life is in danger, when certain forcible felons flee, or when other means have been exhausted.  

This is a difficult research area. There is no central repository of data on police use of force, and the data collected nationally by the FBI on use of fatal force is deeply flawed. It is voluntarily submitted, it does not include woundings that fall short of death, and the data that is submitted is known to be inaccurate. Gaining access to local records on this potentially explosive and politically sensitive topic is difficult, and agencies have much to lose by cooperating with researchers. Virtually every study has been based on the records of one or a small number of local police departments. Studies conducted in agencies that voluntarily opened their records to researchers probably represent those that are most confident of their professionalism. In general, these studies show that racial minorities are subjects of police force at higher rates than for whites, but that shootings by police are fairly racially balanced (see, for example, Fyfe 1981 and Blumberg, 1981). On the other hand, studies in agencies that are forced to open their records because of suits alleging use of excessive force or Freedom of Information suits by media organizations tend to find more racial disparity in the use of force, a great deal of disparity in the use of deadly force, and a higher rate of shootings of racial minorities that appear to be questionable (Fyfe, 2002). For example, Meyer (1980) found in Los Angeles that African-Americans were more often unarmed when they were shot, and Fyfe (1982) found that African-Americans in Memphis were more often shot in circumstances that were not as threatening to the officer. Official case files typically are the source of data on these incidents, and these documents present a version of events where every incentive exists for the organization to present a favorable version of events, and much of the information is based on paperwork completed by the officer who used force.

One of the few firm conclusions that can be drawn from this research is that rates of police use of force and deadly force are highly variable. Fyfe (2002) analyzed the results of a project conducted by the Washington Post that assembled data on fatal police shootings in 51 large municipal and county police and sheriff’s departments during 1990-2000. Fatal shootings rates for county police departments varied by a factor of 14, while for city departments the ratio of shootings from top to bottom was 8-to-1 and among sheriff’s departments it was almost 6-to-1. In a seven-city study by Milton, et. al (1977), the top to bottom ratio was also 6-to-1. Another general conclusion is that most police use of force is non-fatal. In one six-agency study, only 17 percent of “potentially volatile encounters” (a high-risk sample of incidents) led to the use of force, and most of the force was confined to threats, use of restraints, weaponless tactics, and control holds (Garner and Maxwell, 1999). A final conclusion is that, as was noted above, there is usually considerable racial disparity in the use of force, and often in the use of fatal force.

Despite problems with the data, there is evidence of the positive effects of legal and administrative efforts to control police use of force.  In a study of the use of force by the New York police department, Fyfe (1979) found that a policy change by the agency led to a precipitous drop in shootings by officers there. He also found that New York City police rarely shot unarmed people. Sparger and Giacopassi (1982) conducted a followup study in Memphis, the jurisdiction in which the Garner decision originated, and found a dramatic reduction in racial disparities in police shootings in the post-Garner period. On the other hand, in a study in Philadelphia, Waegel (1984) used data collected independently by a nongovernmental organization, the Police Project of the Philadelphia Public Interest Law Center, to examine the impact of a 1973 statute restricting use of force by police officers. He found that officers did not comply with the statute. Compliance did not increase with time: “With but one exception (1977), in every year the most frequent category of lethal force incidents involved an unarmed person who was fleeing after the commission of a felony (1970-1972) or an unarmed person who had not committed a violent felony (1974-1978)” (Waegel: 128)  

	Seizures and Searches

	The Fourth Amendment states that “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched , and the person or things to be seized.”  Searching citizens and their property is a basic law enforcement tool for solving crimes and building criminal cases against defendants. The Framers of the U.S. Constitution recognized the State’s legitimate interests to engage in searches, but they were so concerned about the risks of abuse that they enshrined their proscription of “unreasonable” searches and seizures in the Fourth Amendment, the first of several to address concerns about due process of law.  Although Americans have long been interested in the contribution their police make to reducing crime, they also expect the police to play by the rules of law (Roberts and Stalans, 1997:ch. 7). Since 1961, the Supreme Court has used the Fourth Amendment to establish rules regulating everyday police search and seizure practices. The largest body of social science research on police compliance focuses on the effects of the exclusionary rule.

	Wayne LaFave collected data prior to the Supreme Court’s imposition in Mapp v. Ohio of the exclusionary rule for Fourth Amendment violations to the states.  LaFave reviews the potential pre-Mapp sanctions for unconstitutional arrests and searches in Kansas, Michigan and Wisconsin.  LaFave points to three potential sanctions in absence of the exclusionary rule:  tort suit, criminal penalties, and administrative sanctions.  Officers interviewed in the three relevant states expressed little concern about the threat if a tort action for false imprisonment following an improper arrest.  In all three states researched such suit were infrequent and typically brought only when there was an allegation of extreme physical force and violence.  Similarly, researchers could not find one instance of criminal prosecution against a police officer for an unconstitutional arrest.  Finally, LaFave notes that department discipline for arrest was infrequently used – especially if the person arrested was guilty.

	The failure of the sanctions noted by LaFave to insure that police arrested individuals in conformance with the Constitution led to the decision in 1961, of Mapp v. Ohio.  The Mapp Court adopted the exclusionary rule  “to deter unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures,” since there appeared to be no feasible alternative to controlling such behavior.  While data found in LaFave’s work support the notion that pre-Mapp  sanctions had little effect on unconstitutional police behavior, there was almost no empirical evidence at the time Mapp was decided to support the proposition that the exclusionary rule deterred unlawful police practices.
	
	However, immediately following Mapp, legal scholars concluded that, at least in some areas of the country, the exclusionary rule may have caused police officers to adhere more closely to the requirements of the Fourth Amendment. (Goldstein, J Crim Law, 1967; Amsterdam, Minn Law Rev, CHECK 1974).  Skolnick’s study of “Eastville” and “Westville” police is one early example.  Skolnick employed direct observation to identify common police search practices.  The study notes “that officers frequently skirted constitutional standards; it also identifies the officer mind-set that motivated and justified such actions – a focus on discovering and controlling crime and applying ‘conventional morality’ to standards of police behavior in dealing with suspects.  In this light, ‘technicalities’ of constitutional law are viewed as unreasonable obstacles to reasonable police goals, and any normative pressure to conform to law is substantially mitigated.”  Additional early studies were mixed – some found that the exclusionary rule deterred misconduct, some found little or no effect, and some were inconclusive.  

A new wave of studies followed the Supreme Court’s embrace of a cost/benefit approach to the exclusionary rule in U.S. v. Calandra.  The researchers behind these studies attempted to measure and balance the costs (excluded evidence) and the benefits (deterrence of police misconduct) of the exclusionary rule.  Many of these studies focused exclusively on the social costs of the exclusionary rule (“lost convictions”), and they overwhelmingly concluded that those costs were marginal.  

More recently researchers have returned to evaluations of actual police practices as opposed to cost-benefit analyses.  Studies based on field observations “provide the most reliable impact data,” but are relatively rare in the exclusionary rule literature.  Older studies sponsored by the American Bar Foundation concluded that police officers know the relevant constitutional standards and that they act strategically when searching. In addition to their age, these studies suffer from the same reliance on police interviews that plague other non-field studies.  

Orfield undertook a more recent study of police officers.  Orfield studied Chicago narcotics officers in 1986 in order to determine how the exclusionary rule has influenced their behavior.  Orfield conducted structured interviews with 26 narcotics officers.  He found that the exclusionary rule had changed police, prosecutorial and judicial procedures on the institutional level.  At the individual level, Orfield found that the officers he interviewed generally adhered to the exclusionary rule and that the rule deterred constitutional violations – at lease if the goal was to prosecute the offender, as opposed to confiscate contraband. LaFave (1965) and LaFave and Remington (1965) report that restrictions on searches and seizures were ineffective when their purpose was instead to disrupt illicit networks or assert police authority on the street.

Other studies based on interviews with police officers have been used to estimate the frequency of illegal police procedures (Canon, 1991; Krantz, 1979; Milner, 1971; Wasby, 1976).  This method has the advantage of offering interviewed officers an opportunity to speak confidentially about their work, which may enable them to speak frankly about legally improper practices. However, police surveys and interviews suffer from a variety of other limitations.  Some officers may be unaware that certain search practices in which they engage are illegal — or legal — thus producing unreliable estimates of the rate of illegal search practice.  Officer recall of search practice may be faulty, especially given the frequency with which this behavior occurs.  And finally, the use of hypothetical scenarios presented in a survey (used to counteract recall limitations) may not reflect what officers actually do on the job.

In a study of officers in the early 1990s, Gould and Mastrofski conducted field observations of 115 searches conducted by 44 lead officers.  They conclude that 29 percent of the 115 searches were conducted unconstitutionally.  This extrapolates to a rate of 6-7 illegal searches per 100 residents over a year’s time. However, they report that only three violations were rated so egregious as to “shock the conscience.”  Importantly, this research includes data from searches that don’t lead to arrest or a suppression motion.  In fact, Gould and Mastrofski found that “only 7 percent of the suspects who were arrested or cited experienced an unconstitutional search, while 43 percent of those who were not arrested or cited experienced a violation of their constitutional right.”  Clearly, studies which limit their focus to lost convictions (which require first an arrest and then a suppression motion) can miss a significant number of unconstitutional searches. Gould and Mastrofski also found that “when constitutional violations occur, they are more likely to involve the frisk of a suspect’s outer clothing than a full search of his person or possessions.”  Furthermore, the violations were generally not exceptionally invasive; the authors estimate that only two or three of the searches would “rise to the level of egregiousness required for civil liability.”  Finally, the data indicated that “illegal searches were highly concentrated in a few officers…. [S]ix officers (14 percent of the officers in the sample) accounted for 22, or two-thirds, of the illegal searches.”

Gould and Mastrofski had limited data on the background of the observed officers, so their analysis focused mostly on the features of the suspects and the situation.  They found that the most powerful predictor affecting the probability of an unconstitutional search was whether the officers were explicitly looking for drugs and whether the search was a pat down (as opposed to a more intrusive search).  The researchers concluded that this pattern of effects suggested that the city’s focus on conducting a “war on drugs” contributed to the rate of illegal searches. Notably, the study found no evidence that blacks were more likely than whites to receive an unconstitutional search.  A small number of officers accounted for a disproportionately large share of the unconstitutional searches.  These officers did not conform to a “rotten apple” portrait, but rather were strongly committed to community policing and to treating citizens with respect.  Their searches, both legal and illegal, were performed in a respectful, even solicitous manner.  The researchers found that the rate of illegal searches in appeared to be high, albeit most police transgressions were relatively minor.  Given that so few of the illegal searches were official recorded, the exclusionary rule would prove irrelevant to preventing or correcting most violations.

The U.S. Supreme Court’s U.S. v. Leon decision in 1984 permitted a “good faith” exception to the exclusionary rule for faulty warrant searches.  One post-Leon study tracked hundreds of cases in seven cities throughout the process, from the beginning of the search warrant request to disposition and disposition of appeal (Sutton, 1986).  The researchers drew on official records, first hand observation of warrant reviews, and interviews with police and court decision makers.  They found that the search warrant process was rarely used, the process was perfunctory (with magistrates serving more as allies than independent judges committed to maintaining due process standards), and it was often subverted by circumventing the warrant requirement, ignoring it, or meeting it through fabrication or falsification of evidence.  Another group of researchers did a pre-post study of search warrant practices in those cities and found that they remain unchanged by Leon, thus adding to the body of research cited elsewhere in this report that finds little or no effect from appellate court rulings on police practices (Uchida and Bynum, 1991).  

More recently, the New York Office of the Attorney General’s (OAG) conducted a study of police “stop and frisk” practices in New York City.  The study analyzed of 175,000 forms completed by police officers over a one year period. They compared patterns of stops with Census data, crime statistics and demographic information, yielding a quantitative portrait of stop and frisk practices.

The Supreme Court legitimated many stop and frisk practices in Terry v. Ohio.  In Terry, the Court interpreted the Fourth Amendment by balancing individual interests in liberty (privacy, property, and autonomy) against societal interests in safety (which include, of course, the stopped-and-searched person’s interests).  The Court departed from its then long-time insistence that police interventions, searches and seizures, be justified by the level of particularized suspicion known as probable cause.  The Court instead determined, focusing on the Reasonableness Clause of the Fourth Amendment, that a protective pat-down of a stopped person’s clothing that fell short of a full-blown search need be justified only by reasonable, articulable suspicion that criminal activity was afoot and that the person with whom the officer is dealing may be armed and dangerous.  

The New York OAG report collected information on a sample of stops based on facts that, as reported by the police, clearly meet the constitutional standard of reasonable suspicion according to Terry and its progeny.  Additionally, the report collects information on stops based on facts that courts have decided clearly do not constitute reasonable suspicion.  While the data may be biased in that it is based on police self-reports as opposed to direct observation, the study’s findings are instructive as to the level of unconstitutional police stops in New York City.  Relying on these data, Fagan and Davies found that the facts as stated did not meet Terry’s reasonable suspicion standard in 14 percent of cases.

The New York OAG report also contain data relevant to concerns about disparate impact of stop and frisk practices.  When cross-classified by race, wrongful stops—those that did not articulate reasonable suspicion—occurred at roughly the same rates for Blacks, Latinos, and Whites: 15.7 percent, 14.3 percent and 16.6 percent respectively.  According to the report, these differences are not statistically significant.  However, the fact that Blacks and Latinos were not subject to much higher levels of unconstitutional stops than whites does not adequately capture their experience with police in New York.  The New York OAG’s report makes clear that Blacks were stopped much more than whites.  

After controlling for crime rates – measured in this study by arrest rates for various offenses – and precinct composition, researchers found that, whether the relevant precinct was majority or minority Black, the comparison between the stop-to-arrest rates for Blacks and the same rates for whites was almost always 2:1.  So for example, the stop rate of Blacks in precincts that were less that 10 percent Black was 52 stops of Blacks for every 100 Blacks arrested for violent crime.  That same rate for whites in the area was 24, yielding a ratio of 2.17 to 1.  In the more racially varied precincts that ratio was 2.14 to 1.  And in the precincts with the highest proportion of Black residents, the ratio was 2.11 to 1.  There were similarly disparate ratios for Hispanics to whites, but not so extreme.

							Studies based on official records have limitations when they are used for estimating the frequency with which police violate constitutional protections regarding search and seizure. First, records that document searches can also used to evaluate their performance, and the officers whose performance is to be evaluated are the very persons responsible for completing the documents.  They are well aware of these “downstream” uses and may understandably craft their reports to cast their own performance in the most favorable light, doing so by leaving out uncomplimentary material, being vague, or even falsification.  Second, official records — whether police- or court-generated — are substantially incomplete.  Many searches go undocumented by police because no arrest was made.  One systematic field study of the police in the early 1990s reported that 39 percent of searchers without warrant resulted in an arrest or citation that would produce an official document of the search, and only nine percent of unconstitutional searchers were so documented (Gould and Mastrofski, 2001).  Even when searches are reported, a thorough judicial review of the legality of that search depends upon defense counsel’s filing a suppression motion.  Given the cursory review afforded to most criminal cases by defense counsel (cite), court documents constitute an unreliable means of assessing the constitutionality of police practices.

But data such these still may help to illuminate subjective dissatisfaction with police – especially among minority groups.  These data, along with the review of constitutional rules above suggest, importantly, that while constitutionals rule may adequately address the balance of power between the state and the individual by, for example, requiring in the 4th Amendment context, individualized suspicion before authorizing police to act, or by requiring in the Fifth Amendment context, the reading of Miranda warnings, it is not at all clear that the rules address full complement of scenarios that individuals, as member of groups truly care about.  There is not one Fourth Amendment standard, for example, that asks “How many innocents are going to be stopped in relation to the whole?”  This difficult question has neither presented to the courts for review, not answered by them, but it may drive the perceptions of police of some groups – especially those who bear a rate of intrusion into their private affairs that is disproportionate to their numbers in the population and that is correlated with race.

Corruption by Steve; goes here (trust me)
	issues: what kinds, how much, causes and controls, impact on legitimacy
	segue to internal and external controls, which are often corruption-related.

[MHM Comment: There is an important question of what ideas get included in the definition of corruption. The narrowest definition would focus on essentially bribery: taking money in exchange for dropping a charge, or protecting an illegal enterprise from law enforcement action. This is what most people mean by corruption. There are other things that could be considered corruption, however. One such is what I would call official extortion: where an officer threatens to arrest and prosecute on false evidence and demands money in exchange for his forebearance. Another is what could be called “noble cause corruption” (e.g. testilying) in which the police, confident that they have arrested the right person who is about to be released on a “technicality” will perjure themselves to ensure a conviction.  Still another kind of corruption is where the police use their own position to commit crimes and shield themselves from effective prosecution. I admit that I would like to see a world in which we began thinking of corruption both in terms of bribery (failing to use the authority of the state when one is duty bound to do so in exchange for money) and in terms of extortion (threatening to use the authority of the state for personal gain), and in terms of excessive use of force and authority. It is worth noting that we have typically relied on external sources of control to deal with excessive force (e.g. civilian complaint review boards), and internal sources to deal with bribery (e.g. internal affairs units). I think one of the reasons this is true is that one can rely on a complaining victim in the case of excessive force and extortion, but one cannot in the case of bribery (unless somebody capable of outrage just happened to see the transaction.)]

Means of Promoting Compliance with Legal and Constitutional Rules

	It is one thing to write down a set of rules that describe the proper use of police force and authority; it is quite another to have those rules reliably guide the day to day conduct of the police on the street. Indeed, if there is one important thing that decades of research on the police have taught us it is that there are many powerful factors influencing the conduct of police beyond the laws and rules that are supposed to guide them. Nonetheless, it is important that society find effective means for guiding the conduct of the police, and we have accumulated a great deal of experience with different ways of trying to do so. We present the evidence on this experience below.

Administrative Policies and Procedures

Internal accountability mechanisms have been developed at the initiative of police departments themselves, although generally in response to external pressure from citizen groups angry over incidents of police misconduct. In some departments, internal mechanisms also have been imposed by the federal courts as a part of the settlement of civil lawsuits brought by the U.S. Department of Justice, in addition to suits by private litigants (Pittsburgh 1997; Los Angeles, 2001; Cincinnati, 2002. Finally, the Constitutional decisions discussed above had the effect of invalidating both state statutes and the policies and procedures of many police departments; those take the form they do today in order to conform with those decisions. 

Thus an important role of police departments’ policies and procedural rules is to implement federal and state court rulings, along with state statutes and city ordinances. For example, the types of weapons that are made available to officers, the rules for their use, weapon use training, reporting requirements when they are employed, and the procedures for reviewing the appropriateness of their use, make up part of a police department’s use of force policy, which must be aligned with state and federal statutory and Constitutional requirements. Most of the research on police compliance with administrative policies examines the implementation of Constitutional guidelines in police agencies. It is at this level that controlling police behavior becomes a “management problem.” However, to date there has been little research on the effectiveness of managerial and organizational strategies to motivate officer compliance with department policies and procedures. In contrast to the private sector, relatively little has been attempted, much less evaluated, to evaluate the impact of varying pay and perquisites, for example.  More has been written on the impediments to managing police, including the impact of police unions, police culture, and the “law and order” politics of many cities.

Policies and Rules

The principal mechanism for building and maintaining accountability involves administrative rulemaking by police departments. This approach involves attempting to control the exercise of police officer discretion in critical incidents through (1) written policies that structure and confine discretion; (2) the requirement that officers complete written reports about particular incidents; and (3) review by supervisory officers (Davis, POLICE DISCRETION 1975; Goldstein POLICING A FREE SOCIETY, 1977; Walker, TAMING THE SYSTEM 1993). 

One significant application of this approach on which there has been some research involves police officer use of deadly force (Fyfe, 1979; Geller and Scott, 1992). Beginning in the early 1970s police departments replaced the permissive "fleeing felon" rule with the more restrictive "defense of life" standard." Officials policies also prohibited warning shots and other uses of firearms. Early studies found that administrative rules were successful in reducing the number of firearms discharges and the number of citizens shot and killed (Fyfe, 1979; Sparger and Giacopassi, 1992). 

Research on administrative rulemaking has since been extended to other types of  incidents involving the use of police authority. These include studies of the use of physical force (Justice Department 2001), high speed pursuits ( Alpert, 1997; Alpert and Dunham, 1990), domestic violence (Sherman 1992), the use of canines (Cincinnati 2002), and non_lethal technologies (e.g., pepper spray). 

There is limited evidence on the effectiveness of administrative controls in these areas, however. Controls over high speed pursuits do appear to reduce the number of pursuits and the  consequent injuries and fatalities (Alpert, 1997) . Research on the use of physical force has been limited to investigating the prevalence of force incidents and the factors associated with its use (BJS 1999; Geller and Toch, 1995). The deterrent effect of mandatory arrest in domestic violence incidents has been investigated through a number of experiments, but there is limited evidence regarding officer compliance with domestic violence policies in non_experimental conditions (Sherman, OTHERS). 

Early warning systems [MHM Comment: need a more detailed description of what this means. There was work done on “background characteristics” to be used to screen police recruits, and that would be really early warning. But I think this means after the person has been hired. The important issue here is what kind of information is collected about officers and what level of misconduct over time triggers a warning.]  represent a new internal accountability mechanism that has developed in recent years. In brief, an early warning system is a data_based management tool designed to identify officers who appear to have performance problems and to subject those officers to some administrative intervention, usually in the form of counseling or retraining (Walker, Alpert and Kenney, 2001). Early warning systems are an outgrowth of the development of administrative rulemaking since the required reports on use of force and other actions represent the principal data used to analyze officer performance. 

Early warning systems have been growing rapidly and are recognized as one of the "best practices" in police accountability (Justice Department 2001). The evidence for the success of early warning systems is extremely limited at this point, however. The only evaluation of early warning systems found that they were effective in reducing the use of force and citizen complaints among officers subject to intervention, but the study was limited by a number of methodological problems including questions about the official data that was used (Walker, Alpert, and Kenney, 2001). 

Internal Inspections

Responsibility for enforcing internal standards of accountability lies with police department internal affairs units, or what are increasingly called professional standards units. Despite the fact that police management experts recognize that internal affairs units play a critical role there is very little research on these units. Little is known about the organization, management and staffing of these units. Nor is much known about the investigative procedures used or patterns of discipline. There is a sizeable anecdotal literature on the failure of these units to maintain accountability and integrity (Kerner Commission 1968; Christopher Commission 1991, Mollen Commission), but none of these reports or investigations rises to the level of scientific studies.

[MHM Comment: Lots more to be said here about how work is divided between central and decentralized units, what kinds of investigative techniques should be allowed, whether there should be “integrity testing” and so on. Would be glad to help on this if desired.]

Data Collection

The advent of sophisticated information systems, and a growing awareness of the power of gathering data for internal accountability processes, has encouraged police administrators to routinely collect more data on police operations and practices. Sometimes this is in response to external demands for closer police accountability. In the case of the debate over racial profiling, for example, the mandated collection of official data on traffic stops has emerged as the principal strategy on the  part of civil rights groups for ending the practice, defined as a pattern of stopping African American and Hispanic drivers on the basis of race or ethnicity rather than suspected criminal activity (Harris 1997, 1999, 2002; PERF 2001; Ramirez, McDevitt, and Farrell, 2000). 

[MHM Comment: Worth making the distinction between data collection that supports judgments about the aggregate performance of the organization as compared to those that support evaluations of individual officers?]

As an accountability mechanism, traffic stop data collection operates on the same assumption as administrative rulemaking: that requiring officers to complete official reports on critical decisions will simultaneously put them on notice that their actions are being scrutinized and create a systematic data base that will permit determination of whether a pattern of illegal race or ethnic discrimination exists.

Several states have enacted laws requiring law enforcement agencies to collect data on traffic stops. Additionally, a large and growing number of agencies have undertaken data collection voluntarily.  Many of these efforts have yielded publicly available data sets on traffic enforcement patterns (San Jose Police Department, 1999, 2000; Missouri 2001; San Diego, 2001; others). Much controversy surrounds the proper benchmarks for interpreting traffic stop data (GAO 2000; Home Office 2000; Harris 1997, 1999, 2002). For the purposes of litigation,  observational studies of traffic patterns on interstate highways were conducted in Maryland and New Jersey (Harris 2002). The data was interpreted as supporting the plaintiffs' contention that race discrimination existed in those instances. More difficult is the question of determining the extent to which discrimination exists in general urban policing. Official reports to date generally find racial and ethnic disparities in enforcement (San Jose 1999, 2000). These studies use the resident population as the bench mark. Walker (2001) argues that the resident population is not a valid bench mark and that related bench marks using estimates of the driving age population by race and ethnicity are similarly flawed. Walker proposes using an early warning system approach (see above) in which the activity levels of groups of officers with comparable assignments serve as a bench mark for individual performance. 

Other strategies for eliminating racial profiling have been advanced, including exhortation, training, in-car video cameras, and various administrative controls, such as requiring officers to notify dispatchers about key features of stops (New Jersey consent decree, ____; PERF, 2001; Cohn, Lennon and Wasserman, PROGRESSIVE POLICY INSTITUTE 2000). To date there are no studies investigating the impact of any of the proposed reforms designed to eliminate discrimination in traffic enforcement. 

External Accountability Mechanisms

The tradition of local accountability by police that was described in early sections of this report is sometimes extended by the creation of external bodies charged with overseeing police operations. What police do is important, and they are one of the most visible parts of local government. Where there is dissatisfaction with police internal accountability mechanisms, citizen groups have demanded the creation of externally-based mechanisms as well. In recent decades this dissatisfaction, reflecting an apparent loss of perceived legitimacy, has been primarily centered in the African American community and has traditionally been labeled “the police_community relations problem” (Kerner Commission, 1968).

Citizen Oversight Bodies
The principal demand for external accountability by civil rights groups has been for the creation of citizen oversight agencies, commonly termed civilian review boards (Walker 2001). Specifically, citizen groups have demanded that an external oversight agency be given responsibility for receiving, investigating, and disposing of citizen complaints against agencies. This demand reflects the belief that police internal affairs units, in varying degrees, discourage complaints, fail to investigate complaints thoroughly and fairly, and fail to discipline officers who are found to have committed misconduct. The police and their supporters generally deny that excessive force is a problem and argue that police departments are better equipped to investigate complaints than are people who are not sworn officers (AELE, 1982).

External citizen oversight agencies have been growing steadily since the late 1970s. By 2001 these were slightly more than 100 such agencies Police departments in nearly 90 percent of the big cities are subject to some form of oversight regarding complaints. Citizen oversight also exists with respect to a number of medium_sized and small police departments, along with some county sheriff's departments. These figures are based on the broadest definition of external oversight, and includes any procedure in which there is some citizen input into the review process, however limited, by persons who are not sworn police officers. Virtually all of these agencies are authorized by local ordinance (Walker 2001). Because of the bargaining that takes place in the legislative process that created them, citizen oversight agencies take a number of different forms. Walker (2001) classifies them by four different models of oversight. Only Class I systems under this scheme have original jurisdiction with regard to the investigation of complaints. Other institutional arrangements include boards who play an auditing or monitoring function with regard to police-run investigations.

There is very limited evidence regarding the effectiveness of citizen oversight agencies. As already noted, there is considerable  anecdotal evidence regarding the shortcomings of internal affairs units (Kerner, 1968; Civil Rights Commission reports), etc.), but no comparative studies indicating that external citizen oversight agencies are relatively more effective than internal affairs units. The evaluation of internal accountability mechanisms poses a number of difficulties (Brereton, 2000; Walker 2001). The published literature generally fails to take into account the multiple goals of oversight agencies. These include but are not limited to conducting thorough and fair investigations of citizen complaints and building citizen confidence in the complaint process. Comparative studies of their effectiveness are also difficult because local external and internal units or boards tend to handle very different kinds of cases and hear different types of allegations (Hudson, 1972, Walker, 2001).

State and Federal Courts

 The courts also serve as an external mechanism of accountability. Criminal prosecution represents one means of bringing to justice officers who have broken the law, either through corruption or excessive use of force. Most experts regard criminal prosecution as an extremely limited vehicle for achieving meaningful accountability. Obtaining the conviction of officers is extremely difficult as judges and juries exhibit a high level of deference to the testimony of police officers. Also, criminal prosecution of individual officers, or even small cadres of officers, does not address systemic organizational problems that contribute to officer misconduct (Vera Institute, 1998). Federal and state grand juries also have the power to investigate and bring indictments against police officers for alleged criminal actions.

A second use of the courts involves civil suits by private individuals seeking damages for harm done by officers. There is some evidence of a significant increase in civil litigation at least in some major departments over the years (Newell, Pollock and Tweedy, ICMA, 1992). Some civil rights and civil liberties activists have embraced civil litigation as a reform strategy, assuming that rising damage awards will force public officials to undertake significant reforms in the police department. They bring cases challenging existing police practices. Attempts to evaluate the impact of civil litigation have found that it has often not produced the desired reforms (McCoy CRIM LAW BULLETIN 1984; Yale Law Journal, 1979).

A third and new use of the courts involves federal litigation under Section 14141 of the 1994 Violent Crime Control Act. The law authorizes the U.S., Justice Department to bring civil suits against police departments where there is a pattern or practice of violating the rights of citizens. Pursuant to this legislation, the Justice Department has investigated over twenty police agencies. To date, about eight CHECK federal suits have resulted in consent decrees imposing reforms on the law enforcement agencies in question (DOJ web site). Generally, these reforms include implementing agreed-upon "best practices," including use of force reporting systems and early warning systems. (Justice Department 2001). Litigation under Section 14141 differs from traditional civil litigation in that it is specifically directed toward organizational change, as opposed to damages for individuals. Each consent decree creates a role for a court-appointed monitor who oversees compliance with the agreement.

There is to date no research evaluating the effectiveness of the consent decrees arising from litigation under Section 14141, although the Vera Institute in New York City is presently evaluating the impact of the 1997 consent decree involving the  Pittsburgh Police Department (Davis, et al, 2002).

[MHM Comment: Include role of federal government in shaping policing; first through FBI Civil Rights investigations; second through federal grant programs that impose conditions?]

[MHM Comment: Include accreditation agencies?]

Blue Ribbon Commissions

A traditional approach to pressing for greater accountability has been through the formation of "blue ribbon commissions" that investigate police problems and issue reports with recommendations for reform (Walker 1985). At the national level, the most important examples include the 1931 Wickersham Commission (National Commission on Law Observance and Enforcement 1931), the President's Crime Commission (1967), the National Advisory Commission on Civil Disorders (the “Kerner Commission”) of 1968, and the American Bar Association Standards for Urban Police Function (1973 CHECK). There have also been numerous state and local commissions created in the wake of local legitimacy crises. For example, the Christopher Commission was formed in 1991 CHECK in response to events associated with the Rodney King incident in Los Angeles, and both the Knapp Commission and the Mollen Commission were created in response to allegations of widespread corruption in the New York City Police Department. The1922 Cleveland Crime Survey began this trend.

Blue ribbon commissions have played an important role in setting general standards for the police and in that respect guiding reform efforts across the country. In some cities, reforming police chiefs have been able to use the legitimacy crisis engendered by the investigations conducted by commissions to effect needed reforms within their department (PAT MURPHY BOOK). The major weakness of this approach is that blue ribbon commissions are temporary agencies that go out of business following publication of a final report. Consequently, there has been no mechanism to ensure implementation of the recommendations (Walker 1985).  See, for example, the controversy over the implementation of the Christopher Commission report in Los Angeles (Christopher Commission, 1991; Bobb, 1996; LAPD, 2000, 2001?). Walker (2001) argues that the role of blue ribbon commissions has been superceded by the auditor model of citizen oversight, which involves a permanent body that has the capacity to oversee and report on implementation of recommended reforms (San Jose Independent Auditor, 1993_present; Special Counsel, Los Angeles County Sheriff's Department, 1993_ present). Currently, New York City has the only permanent external corruption control agency in the nation, the New York City Commission to Combat Police Corruption.

POLICE LEGITIMACY AS THE CONSENT OF THE PUBLIC
Police Legitimacy in Public Opinion

The second idea of police legitimacy is not based on whether or not police behavior conforms to an established legal standard; it is based on the extent to which ordinary citizens think that the police are just and fair in the way that they do their work.Research on public legitimacy draws upon the findings of survey research and experiments. Surveys are used to gather information on what people think about the police, and to collect self_reports of the experiences that individual Americans have had with them. 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 popular opinion over time. The second strand of research on police legitimacy is rooted in experiments. These studies look at the impact of a variety of factors on people’s assessments of police legitimacy, and at whether the factors that influence legitimacy work in the same way for different groups in the population.

	In principle, when one is evaluating the subjective legitimacy of the police, one could examine the perspectives of three different groups that stand in different relationships to the police. On one hand, there is the general population of citizens who can be understood as observing the general behavior of police departments and comparing what they think they know about the aggregate behavior and performance of the police with some ideal of how they would like the police to behave. It citizens were generally knowledgeable about and committed to the constitutional rules and laws that regulated police conduct, this standard would be identical to the standards discussed about. The constitutional principles and laws would be rooted in the real aspirations and desires of individual citizens as well as reflections of some abstract principles that had been established through legal procedures. In fact, there is no particular reason to believe that ordinary citizens want from the police the same characteristics as those mandated by courts and legislatures. Citizens seem to want the police to have in accord with some simple principles of justice – that those who commit crimes should be called to account, that the law should be enforced equally, without fear or favor, that the police should be disciplined in their use of force and authority, use it only where appropriate, and only to the degree to which it is both justified and needed, and so on. Indeed,A long line of surveys and experiments have demonstrated that the public does not evaluate police so much in terms of their success at crime fighting as they do by their apparent adherence to law and the Constitution. 

	A second group whose views could be solicited are those who call the police for assistance. This group is, in many ways, the individuals who seem most like “customers” of the police. They are the ones who ask for and benefit from bits of service from the police. It would be easy to imagine that an important goal of policing, and one of the important ways in which they gain legitimacy, is by meeting the expectations of those who call them for assistance: those who have been victims of crimes, those who are afraid, those who need emergency assistance of one kind or another.

	A third group whose views of the police could be solicited are those who are stopped, or cited, or arrested by the police. These individuals have some characteristics in common with those who call the police. Unlike the first group of citizens who merely have general views about the police, this group has had a specific encounter with the police. Unlike those who called the police, however, the group that is stopped, or cited, or arrested by the police did not choose to have their particular encounter, and do not necessarily expect to benefit from it. At best, they hope to be treated in a way that respects their rights and their dignity as well as their safety. 

	To many, it seems silly to be concerned about the attitudes of those stopped, cited, or arrested by the police. We can hardly expect them to be delighted with the experience. Nor should the goal of the exercise be to delight them. Yet, surveys 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.  To some, this difference is viewed as an important difference in the quality of policing. In their view, policing is better if those who are involuntarily stopped by the police think they have been fairly treated. It is valuable as an end in itself (all other things being equal, we would like all citizens to think that the police are just and fair in the way they operate, including those who are arrested). And it is valuable as a means to an end (those who feel that they are treated fairly and with dignity are more likely to comply with the demands of the police, which is, after all, the point of these “obligation encounters”).

	So far, we have been talking about citizens in general, those who call the police, and those who are involuntarily stopped by the police, as though they were distinct groups. In fact, these groups will overlap considerably as a function of how high a profile the police generate, and how active they are in policing. Presumably, in any given year, the largest group of individuals will be those citizens who have paid some intermittent attention to the police, and have formed some kind of general attitude about how their police are conducting themselves, but have not had any personal, direct contact with the police. Included in that larger group of citizens will be a smaller group of citizens who called and experienced a police “service encounter”, and a still smaller group will be those who have been stopped, cited, or arrested by the police and therefore experienced a police “obligation encounter.” Some individuals will have had all three experiences with the police; they will have thought about them as a citizen considering whether his tax dollars and liberty were being well spent by the police force, and as individual customers who were more or less satisfied with the service they received from the police, or as individual “obligatees” who felt they had been more or less justly treated when the police required them to stand still and participate having justice visited upon them.

	What this means is that the real distinction we are making here is not among different groups with different experiences, but instead among different perspectives that individual citizens could adopt in forming their opinions of the police. They could think about the police in the way that an owner and investor thinks about a company in which they have invested resources. (This is the perspective of the citizen in general.) They could think about the police as a service organization that met their demands for service. (This is the perspective of those who called the police). Or, they could think about the police as an organization that treated them fairly and with respect when they were asked to help the police with their inquiries, or were called to account for some infraction. (This is the perspective of those who were obligated by the police.) We think it is important to evaluate the police from all three vantage points, since citizens will use all three kinds of experiences in forming a general view of whether the police are legitimate or not. 

One final note about surveys and what they tell us about the legitimacy 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. This section of the report thus focuses on racial differences in police legitimacy, and actions police can take to raise their standing in the eyes of the public.

Legitimacy and Policing

A core function of social regulatory authorities like the police courts is to bring the behavior of citizens into line with the law. This is true both in personal encounters between members of 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 in everyday activity has been widely noted by legal scholars and social scientists, who have argued that: "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, p. 201)".  This is the case because "the effective exercise of legal authority requires compliance from "the bulk of [citizens] most of the time (Easton, 1975, p. 185)".  Decisions by police 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).

In particular, it is widely assumed that the ability of democratic legal systems to function depends upon gaining voluntary compliance with the law (Easton, 1975; Engstrom and Giles, 1972; Parsons, 1967; Sarat, 1977; Scheingold, 1974).  Whether such voluntary compliance is, in fact, necessary for social regulation, 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 within 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. 

Why People Obey Authority

Three major factors help explain why people obey the law. They do so when it is instrumental to do so, 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 upon human motivations that are instrumental or "rational" in character. In this view, individuals minimize their personal costs and maximize their rewards.  This image of the human organism underlies deterrence, sanctioning, or social control models of social regulation (Nagin, 1998). These models of human behavior emphasize the ability of legal authorities and institutions to shape people's behavior by threatening to deliver or by actually delivering negative sanctions for rule breaking. To implement deterrence strategies, American police officers 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, truncheon, and arms all may play a role in asserting authority" in the effort to "gain control of the situation (Reiss, 1971, p. 46)".  The police seek to control the individual's behavior "by manipulating an individual's calculus regarding whether "crime pays" in the particular instance (Meares, 2000, p. 396)".  Judges 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 and/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 (Nagin, 1998; Nagin and Paternoster, 1991; Paternoster, 1987, 1989; Paternoster and Iovanni, 1986; Paternoster, Saltzman, Waldo, and Chiricos, 1983; Tyler, 1990).

Studies of deterrence also point to several factors that limit the likely effectiveness of deterrence models of social regulation.  Perhaps the key factor limiting the value of deterrence strategies is the consistent finding that deterrence effects, when they are found, are small in magnitude.  For example, in a review of studies of deterrence in the area of drug use, MacCoun (1993) finds that around five percent of the measured variance in drug use behavior can be explained by variations in indicators of the expected likelihood and/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 deterrence effects can potentially be influenced by either estimates of the likelihood of being caught and punished for wrongdoing (certainty of punishment) and/or by estimates of the likely (severity of punishment), studies suggest that both factors are not equally effective. A difficulty for policy is that the factor that most strongly impacts people's behavior is the certainty of punishment, the part of the deterrence equation that is most difficult to effectively change. Research suggests that deterrence effects are more strongly associated with people's estimates of the likelihood of being caught and punished for law breaking than they are by the anticipated severity of punishment (Nagin and Paternoster, 1991; Paternoster, 1987, 1989; Paternoster and Iovanni, 1986). To influence people's behavior, risk estimates need to be high enough to exceed some threshold of being psychologically meaningful (Ross, 1982; Teevan, 1975). The difficulty is that, for most crimes in the United States, the objective risk of being caught and punished is quite low. There are a variety of methods for estimating these probabilities, which vary widely. For burglary, the apprehension rate has been found to be as low as four percent; for homicide, on the other hand, apprehension rates approached 80 percent in many cities, before they recently began to fall (cf. Skogan, in Bayley, 1998).

In addition, the effectiveness of "instrumental means of producing compliance always depend[s] on resource limits” (Meares, 2000, p. 401).  The question is how much society is willing to invest in crime control, and how much power to intrude into people's lives legal authorities are allowed to have. In addition, those resources need to be deployed in strategic and effective ways. Sherman (November, 1998), for example, notes that in the United States police resources are typically deployed more in response to political pressures than to actual crime threats, with the consequence that the ability of the police to deter crime is suboptimal. Based upon his analysis, Ross (XXX) argues that it is difficult to implement deterrence approaches within the political realities of democratic societies.

Thus the problem faced by those responsible for the everyday enforcement 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, deterrence 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 cannot be a complete strategy for gaining compliance (Ayres and Braithwaite, 1992). An effective strategy for ensuring public compliance with legal authorities requires additional reasons for obeying the law (Sherman, 1993, 1998, 1999, Tyler, 1990).

Substantive Morality.  The second type of motivation to comply with legal authorities involves the ethical values that shape people's feelings about how it is appropriate to behave. Behavior based upon ethical values is especially important and valuable to the legal system, since the desire to be consistent with internal values leads people to voluntarily obey the law, and citizens are self-regulatory. Morality is concerned with personal feelings about what is right or wrong.  For example, murder would still be viewed by most people as immoral, even if it were not an illegal action; while drug use, homosexual conduct, extramarital sex, and other similar actions are regarded by many people as moral, even though the law sometimes defines them as illegal. The degree to which people view laws as consistent with their own moral 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). To the extent that people are following laws because of their ethical values, society need not put its resources into supporting agents of social control like the police. Societal resources can be directed toward other pressing needs. Tyler (2001a) refers to a society in which people are internally motivated to obey the law as a “law abiding” society.

However, morality is a societal and cultural phenomenon, and the congruence between people's moral values and the formal law may or may not be under the control of legal authorities. As a result, people's moral values can facilitate compliance with the law, but they can undermine it. A person may, for example, not steal because they think it is wrong to do so, irrespective of whether the law forbids stealing.  On the other hand, a person my defy and undermine laws allowing abortion or promoting integration, because those laws contradict personal moral values. Unlike legitimacy, personal moral values can either promote or undermine the rule of law (see Tyler and Darley, 2000).

Belief in Legitimacy.  This report focuses on legitimacy, rather than the morality of the law.  It does so because legitimacy is a characteristic of legal authorities and can be created or undermined by their behavior.

Legitimacy involves people's feelings about the degree to which they have a personal obligation to be a good follower who obeys social rules and social authorities. Legitimacy is the property that a rule or an authority has when others feel obligated to voluntarily defer to that rule or authority. In other words, a legitimate authority is an authority regarded by people as entitled to have their decisions and rules accepted and followed by others (French and Raven, 1959).

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 upon the possession and ability to use power.  In addition, there are rules that people will voluntary obey, and authorities whose directives will be voluntarily followed.  Legitimacy, therefore, is a quality possessed by an authority, a law, or an institution that leads others to feel obligated to obey its decisions and directives.  It is "a quality attributed to a regime by a population (Merelman, 1966, p. 548)".

A similar view of responsibility and obligation to others (including both issues of legitimacy and morality) is also articulated by other social scientists.  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 external, 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 external authority.  Control by others is thus replaced by self control [through a process labeled internalization] (Hoffman, 1977, p. 85)". 

As with Weber, the key issue addressed by Durkheim and Freud is the personal taking on of obligations and responsibilities that become self-regulating, so that people feel personally responsible for deferring to society, social rules, and authorities.  However, this review will 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 morality.  This feeling of responsibility reflects a willingness to suspend personal considerations of self-interest and to ignore personal moral values because a person thinks that an authority or a rule is entitled to determine appropriate behavior within a given situation or situations.  

Kelman and Hamilton (1989) refer to legitimacy as "authorization," to reflect the idea that a person authorizes an authority to determine appropriate behavior within some situation, and then feels obligated to follow the directives or rules that 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 explicitly ordered--a different type of morality, linked to the duty to obey superior orders, tends to take over (Kelman and Hamilton, 1989, p. 16)".

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 within the context of a given situation involving an encounter between police officers and members of the public (Reiss, 1971).  Recognizing this, when shaping their actions police officers focus not only upon displays of force, but upon establishing their "legitimate right to intervene" in a particular situation (Reiss, 1971, p. 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 judgment, such as a compliant from another citizen.

When legitimacy is low, the police are more likely to have to use physical force introducing "the risk of injury to both the arrested person and the officer (Reiss, 1971, p. 60)". Interestingly, Reiss found that 73% 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--from bystanders or family members. "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, p. 60)".

In addition to being created within a particular type of situation, legitimacy is also something that is created by individual police officers. When a police officer responds to a call or stops someone on the street, he/she taps into the general feelings that people have that authorities are legitimate and are entitled to be obeyed. To the degree that community residents have the view that police officers are legitimate, the task of particular police officers is made easier.  Tyler and Huo (2001) find that people who view legal authorities as legitimate are generally more willing to defer to the directives of particular police officers. However, each officer can also heighten or undermine the ability of this general legitimacy to legitimize their own decisions through their actions when dealing with particular members of the public.

One of the potential virtues of community policing, in which community residents develop a long-term relationship with particular police officers, is that it gives those officers an opportunity to build support for their role. When a policeman is a stranger arriving in a patrol car, they have no personal relationship with people in the community, and their legitimacy is derived primarily from the general feelings that people have about the legitimacy of the police as a group.  In communities in which the police generally are seen as illegitimate, the opportunity to develop a long-term relationship with the people in the community provides particular officers the opportunity to create personal legitimacy for their actions.

The study of Tyler and Huo (2001) shows that the actions of particular police officers shape willingness to defer to their decisions.  The facilitative/inhibitory role of the particular actions of police officers is greater than is the impact of general legitimacy. This suggests that whatever general tendencies people have to accept or reject the intervention of particular police officers based upon their views about the legitimacy of the law and of legal authorities are overwhelmed by reactions to the actions of the particular police officers with whom people are dealing. The particular police officers involved can either build upon whatever legitimacy they bring into the situation, or they can rapidly undermine it.

Research on Legitimacy

The “legitimacy hypothesis” is that people feel a personal responsibility to voluntarily comply with laws that are created and enforced by legitimate legal authorities, and with the directives of authorities who are implementing the law in particular situations. Legitimacy is an acceptance of the right of the law and legal authorities to dictate appropriate public behavior either in particular settings and in general. As many of the examples presented above illustrate, the central goal for empirical research on legitimacy has been to test when and how this expected relationship actually occurs, with legitimacy shaping behavior in response to the law and the directives of legal authorities.

Researchers have measured legitimacy in a variety of ways. In the case of local laws and legal authorities, studies have often used an index of perceived obligation to obey. 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)"; "Disobeying the law is seldom justified (79 percent yes)"; "It is difficult to break the law and keep one's self-respect (69 percent yes)"; "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)"; "If a person goes to court because of a dispute with another person, and the judge orders them to pay money to the other person, they should pay that person money, even if they think the judge is wrong (74 percent yes)".   

The perceived obligation to obey is the most direct extension of the concept of legitimacy. This sense of obligation can be directly measured ("I should obey") or it can be asked in a situation of conflict with the person's feelings about what is right or desirable ("I should obey when I disagree"; "I should obey when I think the decision is wrong"). In addition, building on studies by political scientists, and the conceptual framework of Easton (Easton and Dennis, 1969), legitimacy has been measured in terms of support, allegiance, institutional trust, or confidence.  Drawing on this literature, Tyler (1990) measured legitimacy by asking people's agreement that: "I have a great deal of respect for the Chicago police"; "On the whole Chicago police officers are honest"; "I feel proud of the Chicago police"; and "I feel that I should support the Chicago police".

An additional measure, along these same conceptual lines, is to measure legitimacy using a thermometer to register positive or negative feeling. Tyler (2001a) asks people to rate the police on a thermometer ranging from zero to ten, with five being the middle rating.  People are asked to think about how warmly they feel about the police and to give a temperature rating on this scale.

More recently, legitimacy has been conceptualized as cynicism about the law (Ewick and Silbey, 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 those in power. Based upon this conceptual model, Tyler and Huo (2001) 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". 

Race and Legitimacy

When asked about the police, surveys reveal large differences between Americans of different races. They vary in their opinions, with African-Americans almost universally reporting the most negative views of the police (for a rare exception, see Brandl & Cullen Detroit study in JQ). Whites are less inclined than are African_Americans to believe that police discriminate against minorities. Blacks, on the other hand, are more likely to think that police racism is common and that police treat them more harshly than they do whites (Weitzer, 2000). Whites, African_Americans 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 circumstances, African_Americans 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 also 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 African_Americans 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 African_Americans, would go beyond the Supreme Court (in Tennessee v Garner) by endorsing police use of deadly force to stop a person suspected of burglary (Cullen, et al, 1996).

Americans 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 physical abuse.” In other surveys,  African_Americans 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 (Langan, Greenfield, Smith, Durose and Levin, 1999). 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, African_Americans 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 the force was excessive. African_Americans 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 generally fell between whites and African_Americans on these measures.

Gaining Legitimacy

While legal scholars concerned about police focus on statutory and court-determined rules of conduct and professional standards, many social scientists focus on the impact of police actions on the beliefs and actions of the public.  This research examines how the behavior of police officers either enhances or undermines both the immediate acceptance of their decisions and their long-term legitimacy. This perspective assumes that police behavior should in substantial part be evaluated against the standards of public ethics and morality. An example of such an approach is provided by Slobogin (Slobogin, 1991; Slobogin and Schumacher, 1993), who evaluates the intrusiveness of law enforcement searches and seizures using ratings of their "intrusiveness" derived from public opinion.  Slobogin (1991) argues that standards of acceptable police behavior should be crafted with reference to the role of police activity in shaping public views about the legitimacy of the police, the courts, and the law.   More generally, studies find that people evaluate the actions of authorities against prevailing standards of ethical behavior (Leventhal, 1980). 

The focus on the impact of police behavior on public evaluations and actions has led to the development of a body of research on what has become known as “procedural justice.”  Empirical studies conducted to understand why people do or do not cooperate with legal authorities suggested that the key to developing and maintaining the legitimacy of law and of legal authorities, and to obtaining public cooperation, lies in citizen's evaluations of the procedures through which legal rules are created and implemented. Studies of local legal authorities, such as the police and local courts, make clear that the central element that shapes public evaluations of their legitimacy are evaluations of the fairness of their procedures 

As noted above, empirical 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, Boeckmann, Smith, and Huo, 1997; Tyler and Smith, 1997). Because of the general importance of justice-based judgments in shaping people’s attitudes and behaviors, it seems reasonable to suggest that one basis upon which the effort to sustain legitimacy might rest is by providing “justice.” The ideas of social justice are central to the possibility of securing cooperation within groups. We argue that justice shapes people’s behavior during their encounters with legal authorities, and that this justice-based influence on behavior provides a way in which legal authorities can manage conflict and shape the behavior of the people with whom they deal.

For justice to be effective, it is important that people’s behavior be shaped by their judgments about the justice or injustice of the actions of the police, separately from their judgments about what is personally beneficial.  Justice must be able to motivate the acceptance of rules and decisions that depart from individual self-interest. It also must be independent of the moral judgment that people make about the actions in question. Justice must be able to motivate the acceptance of rules and decisions supporting contrary moral frames of reference. In terms of the issues we are concerned with here, justice also has little value if it does not influence how people feel and what they do. In particular, justice should be able to encourage the acceptance of unfavorable decisions.  Although justice theories suggest that both those who receive too little and those who receive too much will feel that injustice has occurred, studies of the exercise of authority suggest that it is those receiving too little who are most likely to resist and be unhappy.

Despite claims that people are only interested in outcomes that favor themselves, the dominate finding of studies exploring people’s post-experience 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 police officers, judges, managers, political leaders, or any other type of authorities (Lind and Tyler, 1988; Tyler, 2000, 2001a; Tyler, Boeckmann, Smith, and Huo, 1997; Tyler and Smith, 1997). 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 the original procedural justice research (Thibaut and Walker, 1975). Their hypothesis was that people would be willing to accept outcomes because those outcomes are fairly decided upon – that is, because of the justice of the decision-making procedures used. They performed the first systematic set of experiments designed to show the impact of procedural justice. Their studies demonstrate that people’s assessments of the fairness of third-party decision-making procedures shape their satisfaction with their outcomes.  This finding has been widely confirmed in subsequent laboratory studies of procedural justice (Lind and Tyler, 1988; Tyler, Boeckmann, Smith and Huo, 1997). The original hope of Thibaut and Walker was that the willingness of all the parties to a dispute to accept decisions that they view as fairly arrived at would provide a mechanism through which social conflicts could be resolved effectively. 

Subsequent studies found that, when third-party decisions are fairly made, people are more willing to voluntarily accept them (Kitzman and Emery, 1993; Lind, Kulik, Ambrose, and de Vera Park, 1993; MacCoun, Lind, Hensler, Bryant, and Ebener, 1988; Wissler, 1995). What is striking about these studies is that procedural justice effects are found in studies of real disputes, in real settings, confirming the experimental findings of Thibaut and Walker. Procedural justice research lends support to the view that legal authorities can bridge differences in interests and values, and make decisions that the parties to disputes will accept. 

Procedural justice judgments are found to have an especially important role in shaping adherence to agreements over time. This is important in light of Mastrofski, Snipes, and Supina’s (1996) reminder that citizens can acquiesce at the scene yet later renege.  Pruitt and his colleagues study the factors that lead those involved in disputes to adhere to mediation agreements that end disputes.  They find that procedural fairness judgments about the initial mediation session are a central determinant of whether people are adhering to the mediation agreement six months later  (Pruitt, Peirce, McGillicuddy, Welton, and Castrianno, 1993). A study by (Paternoster, Brame, Bachman, and Sherman (1997) also finds that procedural justice encourages long-term obedience to the law. They examined the long-term behavior of people who dealt with the police because the police were called to their home on a domestic violence call. In such cases the problem was typically that a man was abusing his spouse/significant other.  When they were at the person's home the police could threaten the man, and even arrest and take him into custody. The researchers explored the impact of various police actions upon the man's likelihood of committing future abuse.  Their study found that a strong predictor of future rule-breaking was whether the man involved experienced his treatment by the police as fair.  If he did, he was less likely to break the law in the future.

Beyond the fairness of the manner in which police officers make particular decisions, studies generally find that when a climate or culture of procedural justice characterizes an institutions, compliance with rules is more widespread and more easily obtained.  Consider the case of prisons, institutions that people often think of as highly coercive.  Even in prisons authorities seek and benefit from cooperation by prisoners.  Studies of prisons suggest that the fair administration of prison rules facilitates such cooperation (Sparks, Bottoms, and Hay, 1996).

The argument that legitimacy is rooted in the fair exercise of authority is not a new one, or one that only applies to policing.  Selznick's classic examination of industrial settings makes a similar point about workplace rules, commenting that "There is a demand that the rules be legitimate, not only in emanating from established authority, but also in the manner of their formulation, in the way they are applied, and in their fidelity to agreed-upon institutional purposes.  The idea spreads that the obligation to obey has some relation to the quality of the rules and the integrity of their administration (Selznick, 1969, p. 29)".   This argument has received widespread support in studies of employee behavior in workplaces (see Tyler and Blader, 2000). Similarly, discussions of the United States Supreme Court emphasize that the legitimacy of the Court is linked to public views about the fairness of its decision making procedures. Murphy and Tanenhaus (1969) noted that the Court has retained a substantial reservoir of public support even when it makes unpopular decisions. They attribute this continued support for the legitimacy of the Court's role as an interpreter of the Constitution to the public belief that Court decisions are principled applications of legal rules, and are not political in character. This point has been emphasized by members of the Court itself, when arguing that it must present an image of "principled" decision making to retain public support (Tyler and Mitchell, 1994).

What is Fair?

Studies have identified a wide variety of issues that influence the degree to which people evaluate a procedure's fairness.  Further, it has been found that the importance of procedural criteria varies depending upon the setting.  However, studies consistently point to several elements as key to people's procedural justice judgments.

Participation is one key element. People are more satisfied is procedures that allow them to participate by explaining their situation and communicating their views about situations to authorities. This participation effects explains why mediation procedures are popular, and suggests to police officers the importance of allowing people to have input before they make decisions about how to handle a problem. Interestingly, being able to control the outcome is not central to feeling that one is participating. What people want is to feel that their input has been solicited and considered by decision makers.

A second key element is neutrality.  People think that decisions are being more fairly made when authorities are unbiased and make their decisions using objective indicators, not personal views. So, evidence of evenhandedness and objectivity enhances perceived fairness.  

Third, people value being treated with dignity and respect by the police and other legal authorities.  The quality of interpersonal treatment is consistently found to be a distinct element of fairness, separate from the quality of the decision-making process.  Above and  beyond the resolution of their problem, people value being treated with dignity and having their rights acknowledged.

Finally, people feel that procedures are fairer when they trust the motives of decision makers. If, for example, people believe that authorities care about their well being and are considering their needs and concerns, they view procedures as fairer. Authorities can encourage people to view them as trustworthy by explaining their decisions and accounting for their conduct in ways that make clear their concern about giving attention to people's needs.

Procedural Justice and General Legitimacy

The research literature makes clear that people react to the procedural justice they experience when they have personal experiences with police officers. The next question is, Does procedural justice matter when people are making general evaluations of the police as an institution – i.e. does it shape trust and confidence in the police?

Tyler (2001b) explores the factors underlying public trust and confidence using several studies of the police and courts. The studies look at the general population, rather than focusing on people with personal experiences. Further, people are asked about their overall evaluations of authorities, rather than about their willingness to accept particular decisions. The studies contrast the influence of performance evaluations, judgments about whether the police are effectively controlling crime, to judgments about the fairness of police treatment of citizens, as antecedents of confidence in the police.

The findings of the four studies reviewed by Tyler (2001b) suggest that people consider both performance in controlling crime and procedural fairness when evaluating the police and the courts in general. The major factor, however, is consistently found to be the fairness of the manner in which the police and the courts are believed to treat citizens.  For example, in a study of Oakland residents living in high crime areas, it was  found that the primary factor shaping overall evaluations of the police was the quality of their treatment of community residents (which explained 26 percent of the unique variance in evaluations), with a secondary influence of performance evaluations (which explained 5 percent of the unique variance).
 
Sunshine and Tyler (2001) examined trust and confidence in the New York City Police Department among residents of New York City. They contrasted evaluations of crime control activities to judgments about the fairness of the police. They considered both procedural fairness (whether the police make their decisions fairly and treat people in fair ways)  and distributive fairness (whether the police treat all citizens equally). These fairness judgments were compared to assessments of how effectively the police were controlling crime. They found that public evaluations of the police were primarily influenced by procedural justice judgments. The second factor was effectiveness in controlling crime, followed by distributive fairness. The study further found that views about the legitimacy of the police, compliance with the law, and willingness to help the police control crime were all shaped by procedural justice judgments.

These findings suggest that procedural justice is not just an issue to people during personal experiences with police officers. When people, including those in the white middle class, are evaluating the police they are influenced by whether or not they think that the police treat citizens fairly. Interestingly, such fairness judgments are more central to evaluations of the police than are evaluations of their effectiveness in fighting crime.

Some Consequences of Legitimacy for Policing

There are two levels on which we might potentially test empirically the importance of legitimacy. The first is on the level of people's personal experience with law and legal authorities.  People have personal contacts with police officers, judges, and other legal authorities, either because they seek them out to help them solve problems or because those authorities intrude into people's lives while engaged in social regulation activities. One question is whether people's views about the legitimacy of these legal authorities influences how they act during their personal experiences; how they evaluate those experiences and the authorities with whom they have them; and whether they cooperate and defer to the decisions made by the police officers with whom they are dealing. For example, we would expect that people who view legal authorities as more legitimate, and hence more entitled to be obeyed, will be more likely to defer to legal authorities, accepting their decisions about how to resolve problems or how to restrict their own behavior. We also expect that consent and cooperation would be greater when people think authorities are legitimate.  Further, we would predict that such cooperation is more likely to continue in the form of continued adherence to the decisions and agreements made during those personal encounters with legal authorities.  Authorities want to gain cooperation and consent in the immediate situation.

Tyler and Huo (2001; also see Tyler, 2001a) studied public willingness to accept the decisions of legal authorities during their particular personal encounters with police officers and judges. They did so in an interview-based study of 1,656 people living in Oakland and Los Angeles, each of whom had recently had a personal experience with legal authorities.  Their study found that two factors shaped people's deference to legal authorities. The first was situation based. People's willingness to accept decisions was based on the degree to which they regarded the decisions made as being fair or favorable.  Not surprisingly, people were more willing to accept decisions that provided them with outcomes that they viewed as desirable or fair.

In addition, Tyler and Huo (2001) found that people were more willing to accept the decisions of police officers and judges in a given situation if they regarded those authorities as being generally legitimate authorities. Hence, general legitimacy facilitated decision acceptance in particular situations. This study illustrates the potential benefits of legitimacy for legal authorities. If a police officer comes into a personal encounter representing an institution – the police – that people regard as more legitimate, they are more likely to accept decisions of a particular degree of favorability. So, as predicted by theories of legitimacy, legitimacy encourages consent and cooperation with legal authorities.

Tyler and Huo (2001) further demonstrate that legitimacy changes the basis upon which people decide whether or not to cooperate with legal authorities. They contrast two reasons for deferring to the decisions made by police officers.  First, because the decisions are viewed as desirable – they are seen as being a fair resolution to the issues involved in the encounter and/or as providing desirable outcomes such as letting the person go free without arrest. Second, because the police officers involved are seen as exercising their authority in fair ways. The impact of procedural justice on decision acceptance has been widely shown in studies of law and legal authorities (Lind and Tyler, 1988; Tyler, 2000; Tyler and Lind, 1992; Tyler and Smith, 1997).  Tyler and Huo (2001) find that the procedural justice of police actions has an important role in shaping people's willingness to consent and cooperate with the police. Paternoster, et al, 1997, as well as Tyler (1997, 1990) find that people who experience disrespectful behavior from police are less inclined to cooperate with them. Disrespect may also stimulate resistance, thus making it harder for the authorities to fulfill their official responsibilities (Chevigny, 1969: ch. 3; Mastrofski, et al, 1996; White, et al, 1991). Repeated disrespect may ultimately undermine the legitimacy of the state and contribute to civil disorder (Gurr, 1970: 26; National Advisory Commission on Civil Disorders, 1968: 305).

Tyler and Huo (2001) find that people who view authorities as legitimate generally decide whether to accept the decisions of police officers based upon whether or not they are fairly made.  People who view authorities as illegitimate generally decide whether to accept the decisions of police officers based upon whether or not they perceive those decisions to be fair/favorable.  Since the police are often in situations in which they cannot provide people with outcomes that they view as fair or favorable, the police benefit if people defer to their decisions because those decisions are fairly made.  This study shows that: (1) procedural justice shapes deference and; (2) the strength of this influence is stronger when the authorities involved are generally viewed by the members of the public in the situation to be legitimate.  

One important implication of these findings is that the police should engage in process oriented policing in which they are attentive to the way that they treat citizens. The second is that legitimacy has two positive influences on policing: 1) people who view the police to be legitimate are generally more willing to defer to the directives of particular police officers; and 2) people who view the police to be legitimate evaluate particular police officers more strongly in procedural terms.  For both of these reasons, Tyler and Huo (2001) advocate a proactive strategy of social regulation in which the police act in ways that build and maintain legitimacy.  The behavioral implications of this strategy for the police will be outlined in more detail later in this paper.

Separate analyses among the various ethnic groups studied by Tyler and Huo (2001) suggested that these legitimacy effects were found among Whites, African-Americans, and Hispanics.  Within each group the willingness to accept the decisions made by particular police officers was linked to people's views about the overall legitimacy of law and legal authorities. If people viewed the police as legitimate, they were more willing to accept decisions made by particular police officers. Further, within each group legitimacy facilitated process-based deference to particular police officers.

A focus on legitimacy is important because compliance with police by the public cannot be taken for granted.  As Mastrofski, Snipes, and Supina (1996) suggest; "Although deference to legal authorities is the norm, disobedience occurs with sufficient frequency that skill in handling the rebellious, the disgruntled, and the hard to manage – or those potentially so – has become the street officer's performance litmus test (p. 272)".   Similarly, Sherman (1993) highlights the problem of defiance by the public, and the need to minimize resistance to the directives of the police.

The Mastrofski, et al, studies in which social scientists observed police behavior, provide some evidence about the frequency of such problems. They observed police encounters with the public in Richmond, Virginia. Mastrofski, Snipes, and Supina (1996) found an overall noncompliance rate or 22 percent; 19 percent of the time when the police told a person to leave another person alone; 33 percent of the time when the police told a person to cease some form of disorder; and 18 percent of the time when the police told a person to cease illegal behavior. A replication of this study in Indianapolis and St. Petersburg found an overall noncompliance rate of 20 percent; 14 percent of the time when the police told people to leave another person alone; 25 percent of the time when the police told a person to cease some form of disorder; and 21 percent of the time when the police told a person to cease illegal behavior (McCluskey, Mastrofski, and Parks, 1998).

Further, these studies outlined look just at immediate compliance – i.e. whether the person did as instructed – not at whether people willingly accepted the decisions made by the authorities, buying into their resolution to a problem, or understanding why the restrictions of their behavior that are occurring are appropriate and reasonable. As they note, "citizens who acquiesce at the scene can renege (Mastrofski, Snipes, and Supina, 1996, p. 283)".  People may renege in their future behavior if they have complied in the face of coercive power. If they do so, this requires further police intervention at future times.

A second level at which the effects of legitimacy can be examined is that of everyday compliance with the law. In their everyday lives people vary in the degree to which they shape their behavior to comply with laws and legal regulations. Much of people's law-related behavior occurs outside of the immediate presence of legal authorities, although the possibility of sanctions may always exist in the background. Theories of legitimacy predict that, in such settings, people's feelings of obligation to obey the law should shape their behavior, irrespective of the likelihood of being caught and punished for wrongdoing. Many early discussions of legitimacy focus not on upon the acceptance of decisions made during personal experiences with legal authorities, but upon everyday law related behavior.  Here too, theories of legitimacy predict that legitimacy should have an impact on people's behavior.

Tyler (1990) examined the influence of views about the general legitimacy of the law on citizen's everyday compliance with the law. He found that legitimacy had a significant influence on the degree to which people obeyed the law. Further, that influence was distinct from and greater than the effects of increases in the estimated likelihood of being caught and punished for wrongdoing. These findings suggest that, as predicted by theories of legitimacy, judgments about the legitimacy of the legal system influence the degree to which people obey the law in their everyday lives. The Tyler study further finds that legitimacy has a significant influence on the behavior of both white and minority respondents. Within each of two major ethnic groups (white, nonwhite) separate subgroup analyses indicate that legitimacy shapes compliance. Further, in each group the legitimacy influence found is distinct from the influence of risk estimates. Hence, legitimacy is a motivation shaping whether both white and minority community residents comply with the law.

Legitimacy and a Law Abiding Society

The distinction between an instrumental basis for deciding to go along with the rules and expectations of compliance based on legitimacy highlights the possibility of two types of legal culture. The first is a culture that builds public compliance on the basis of people's concerns about the possibility of being caught and punished for wrongdoing. Such a deterrence-based society depends upon the ability of legal authorities to create and maintain a credible threat of punishment for wrongdoing. The studies outlined demonstrate that, while deterrence influences law-related behavior, the social context of democratic societies makes it difficult for authorities to engage in the levels of surveillance needed to sustain a viable legal system simply based upon deterrence.

The important role played by legitimacy in shaping people's law-related behavior indicates the possibility of creating a law abiding society in which citizens have the internal values that lead to voluntary deference to the law and to the decisions of legal authorities. Such a society is based upon the willing consent and cooperation of citizens. That cooperation develops from people's own feelings about appropriate social behavior and the legitimacy of the agencies of social control, and is not linked to the risks of apprehension and punishment that people estimate to exist in their social environment. Tyler (2001a) refers to such a society as a law-abiding society. The studies outlined make clear that such a society is possible in the sense that, if people think authorities are legitimate, they are more likely to obey them.

A law_abiding society cannot be created overnight, but neither could changes altering the expected gains and/or risks associated with compliance. Such transformations depend upon the socialization of appropriate social and moral values among children and the maintenance of those values among adults. Evidence suggests that a core element to the creation and maintenance of such social values is the moral judgment that legal authorities exercise their authority following fair procedures. This is true both during personal experiences with the police and the courts, where people are found to be more willing to accept decisions that are fairly made, and in general evaluations of the police, where people are found to comply with the law and support the police as an institution when they think that the police generally exercise authority fairly.

The suggestion that the maintenance of internal values in community residents is important to effective policing is also made by research on restorative policing (see Braithwaite, 1999; Strang and Braithwaite, 2000, 2001; Sherman, Strang and Woods, 2001).  The core argument of this literature is that the police and courts should behave in ways that "restore" victims and communities to their well-being before the crime, and thereby restore offenders to law_abiding behavior. The goal of restorative policing is to reconnect offenders to an awareness of their own social values and social relationships that will discourage them from law breaking behavior in the future because they will recognize that their behavior violates values that they believe in which defines appropriate conduct and damages social relationships with friends, family and the community that they value.

The value of this model, which consists of police-led meetings between victims, offenders, and their respective families and friends is being tested in a set of restorative justice field experiments being conducted in Canberra. Those studies explore the long_term impact of restorative justice experiments on law_abiding behavior. While data on long_term behavior is still being collected, data already available suggests that people who experience restorative justice conferences express greater respect for the law and view the police as more legitimate than do those whose cases are processed via traditional court procedures (Sherman, 1999). The increased legitimacy restorative justice creates does now always reduce repeat offending, but the four randomized experiments conducted by the Australian Federal police suggest important dimensions of this idea.

The Canberra research examined four kinds of offenders: adults charged with drinking while driving, juveniles charged with shoplifting from large stores, juveniles charged with property offenses affecting personal (not corporate) victims, and offenders up to age 30 charged with violent crimes. The results suggest that restorative justice works best where the offender's moral guilt may be greatest.  While there was no difference in repeat offending between cases handled by restorative justice and those handled by conventional prosecution for either juvenile shoplifting or property crimes against persons, restorative justice produced a 38% relative reduction in repeat offending among violent offenders.  This success was a sharp contrast to drinking and driving cases, in which restorative justice caused a slight increase in repeat offending. (Sherman, Strang and Woods, 2001)

The lack of any victim in the conferences on drinking and driving, compared to the emotionally powerful statements of victims of violent crime, suggest that the emotional impact of restorative conferences may be the major factor in determining their success in producing compliance.  Further analyses are exploring other reasons for the different effects found in the four offense types.  But the differences illustrate the importance of thorough research and development on all new police strategies, as opposed to generalizing widely from a single test.

The Canberra research also found powerful benefits for victims who attend conference, even if there is no effect on repeat offending (Strang, 2002).  These benefits may ultimately include increased compliance with law by the victims, whose own sense of legitimacy of the police was increased by restorative policing.  Further research testing restorative policing is currently underway by the University of Pennsylvania and Australian University in partnership with Scotland Yard in London and with the Northumbrian Police in the Newcastle area (Sherman and Strang, 2001), focusing on serious adult crimes such as robbery and burglary.

Many of the ideas outlined here are not only implications of a procedural justice or restorative justice approach to policing. They are also part of community approaches to policing. Community policing emphasize police efforts to proactively work with neighborhood residents to solve local problems. Studies suggest that people value having the police talk to citizens and cooperating with citizens to solve community problems. They support more bike and pedestrian patrols because they "like to perceive the police as friends and helpers and they would support endeavors to improve the work of the police force much in the sense of what community and problem oriented policing propose (Weitekamp, Kerner, and Meier, 1996, p. 16)".  Similarly a study of public complaints about the police similarly showed that the two primary reasons for complaining were "rude, arrogant, unfriendly, over-casual treatment (38 percent)" and "unreasonable, unfair behavior (46 percent)" (Skogan, 1994).  

These findings suggest that people would like to improve the relationship between citizens and the police, a core concern of problem oriented and community policing.  In fact Weitekamp, Kerner, and Meier (1996) propose a restorative problem solving police prevention program that views reconciliation between victims, the community as a whole, and perpetrators as a key goal. They argue that four groups – the police, the community, the offender, and the victim – should be involved in efforts to reconcile following wrongdoing. All of these groups should be jointly concerned to make their community safer, reduce fear, prevent future crime, improve the quality of life, and increase interpersonal harmony among the people in communities.

Legitimacy and Disadvantage

The study of public views about the legitimacy of law and the legal system represents a social science research perspective; i.e. it focuses on the motivations underlying people's law related behaviors. It does not discuss the circumstances under which law or government is actually legitimate in some normative or philosophical sense (Beetham, 1991), It does not address whether people "ought" to obey the law. The social science perspective on legitimacy focuses on the conditions under which people will defer to authorities, rather than upon the conditions under which people ought to defer to authorities.

Critics of this view argue that there are groups in American society that are objectively disadvantaged in a wide variety of structural ways, and thus have valid reason to question whether existing legal arrangements provide them with fair outcomes. An important question is whether the members of structurally disadvantaged groups have moral or normative obligation to cooperate with legal authorities, and to follow existing rules, under circumstances of distributive injustice.  However, this question is not the issue addressed in social science studies of legitimacy. Research closest to the issue examines the factors shaping whether people from disadvantaged groups do or do not view as legitimate and comply with the law.

The distinction between these two views of legitimacy and the legal order also evokes the concept of "false consciousness," originally articulated by Marx (Parkin, 1965). Marx suggested that people's subjective interpretations of society and of own experience may differ from objective reality.  In the case of legitimacy, this perspective suggests that people might view as legitimate rules and actions by authorities that, in some objective sense, support a system that is objectively unfair in its consequences. Psychological research strongly supports the suggestion that the disadvantaged often view as legitimate political, legal, economic, and social arrangements within which they experience objective deprivation (Tyler, Boeckmann, Smith, and Huo, 1997; Tyler and McGraw, 1986; Tyler and Smith, 1997). For example, Tyler, Boeckmann, Smith, and Huo (1997, chapter 6) point to the lack of differences in views about the legitimacy of the legal system found among samples of white vs. minority or rich vs. poor community residents interviewed during a study of Chicago residents. The members of all of these groups viewed law as about equally legitimate. However, when people were asked about their personal experience with legal authorities, minorities and the poor were more likely to report experiencing injustice.  Such personally experienced injustice, however, did not translate to lower legitimacy.  Hence, personally experienced deprivation did not impact on views about legitimacy.

The tendency to "legitimize" the status quo, seeing "what is" as "what ought to be" is not only found in people's reactions to legal and political authorities. It is also found in reactions to the economic system, particularly in people's attributions of responsibility for economic success and failure (Hochschild, 1981; Kluegel and Smith, 1986; Major, 1994). People are found to uncritically accept meritocratic explanations for inequality (Jost and  Banaji, 1994; Tyler and McGraw, 1985), which justifies the status quo. Legitimacy is a term that can be applied more broadly than to the police, and can also involve people's willingness to accept their social, group, and economic status.

Because of the potential disjuncture between objective and subjective views of society and social authorities, it is important to distinguish the study of the behavioral impact of subjective views about the legitimacy of the law and the police from the study of the objective quality and equity of policing activities across communities.  It is possible that people could feel that the law is legitimate even under conditions in which they were objective disadvantaged.  Hence, the study of subjective legitimacy must be distinguished from concerns about structural inequality or the injustice of the distribution of opportunities, resources, and services across individuals and communities.

Adaptation and Reform in Police Organizations

We have already noted that police organizations can enhance their legitimacy by demonstrating that they produce desired outcomes (e.g., reducing crime and disorder), and that an even more powerful source of legitimacy is tapped when police fulfill public expectations about the processes of policing (e.g., treating people with fairness). There is another route to police legitimacy as well: adaptation and reform. This path involves organizational change. Legitimacy can be gained through the adoption of programs, policies and procedures that are viewed by the community and civic leaders as desirable. It can also be gained by hiring personnel and allocating departmental resources in whys 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.

Adopting Units and Programs
 
How do particular organization structures come to be widely accepted as desirable or superior?  One route is professional validation. Decisions by policy makers and police administrators about programs and policies can be driven by professional norms regarding what is technically effective. at producing the outcomes of policing. To the extent they can afford it, they base their decisions on the best evidence, following a path that one observer has termed “evidence-based policing” (Sherman, 1998). Police agency accreditation, which usually involves a great deal of organizational adaptation to meet professional standards, speeds this process. When their operations fall under scrutiny, adopting agencies can point in defense to the practices of other departments, publications by professional associations, and “best practices” reports distributed by federal agencies and research institutes. This route for gaining legitimacy also can take advantage of developing knowledge about what works in policing, by adapting in response to new findings. Chapters X-Y (group 3) summarize what is known about the police structures and strategies that are most effective in producing technical performance.  If police organizations adopt structures because they are technically superior, key decision makers should place a high value on evidence of technical performance and base their decisions accordingly.  There is some reason to believe that police agencies are increasingly paying attention to scientific evidence about what works (Klockars and Harver, ????; Petersilia, ????; Weisburd et al., 2001),

A popular historical perspective following this line is that the “professional” model of police organizations became widely popular by the 1950s because police organizations found it more successful in coping with crime, and that it was discredited by the 1970s in the face of large increases in crime and disorder and disaffection with policing processes.  Consequently, the professional model lost favor as a way to organize police forces and by the 1990s was supplanted with another, the community policing model  (Fogelson, 1977; Kelling and Moore, 1988).  According to this model of organizational adaptation, police organization structures are formed and modified to maximize technical performance – effectiveness and efficiency in such things as safety from crime.

A second rout to building legitimacy through organizational adaptation focuses not on the technical merits of a proposed change, but rather on the cultural and political forces that create pressures to accept certain structures as superior, perhaps in the absence of evidence of their technical effectiveness. These organizational changes build on the beliefs of elected officials, agency heads, the press, union leaders, blue-ribbon commissions, professional associations, and other interest groups. Adopting programs and policies that resonate with their values sustains and builds police legitimacy.  The literature on policing suggests that the adoption of police policies, procedures, and programs are driven by political and cultural forces at work in American society. One example is the adoption of mandatory arrest policies for misdemeanor domestic assault (Sherman, 1992).  The findings of the Minneapolis study supported a policy position that was gaining increasing national momentum as interest groups intensely lobbied police and law makers for change. New arrest policies were also motivated by police vulnerability to civil suits, as in Thurman v Connecticut (1984), in which police were found negligent in a domestic violence case and the victim was awarded $2.6 million as a result. Interestingly, subsequent replications of the Minneapolis study produced more complex results – that mandatory arrest may not always reduce domestic assault and may even contribute to subsequent increases under some circumstances.  These findings, which now represent the best evidence on the matter, have had very little policy impact, perhaps because there is no political or cultural mandate to undue the new status quo.

The adoption of police organizational structures in response to public demands is a recurring theme of police reform in America. Civilian review of citizen complaints against the police may or may not be an effective bulwark against police misbehavior (proponents and opponents will argue both positions), but departments facing a crisis in public confidence due to allegations of excessive force will certainly find themselves under pressure to adopt a civilian complaint review system. Civilian oversight has become popular despite the absence of evidence about its effectiveness in preventing or correcting any of a variety of the forms of police malpractice for which it is targeted (Walker, 20??). Chiefs and mayors may find it useful because it conforms to popular expectations about how the police department should be organized to respond to citizen complaints.

Another example in this domain is the rapid proliferation of “Compstat” management structures among American police agencies.  Compstat is the term used to describe a management system implemented by the New York City Police Department in the mid 1990s (Weisburd et al., 2001; Silverman, 1999).  It ties together various elements of “strategic problem solving” (Weisburd et al., 2001): mission clarification by top management, holding middle managers accountable for performance (using, for example, meetings during which they must demonstrate to top managers and their peers that they are aware of and doing something about problems in their area of responsibility), decentralizing operational command geographically (so that district commanders have the authority and resources to get the job done), organizational flexibility (to customize police strategies to fit a wide variety of problems as they arise), data-driven problem identification and assessment (using a variety of high technology tools, such as computerized crime mapping), and using innovative problem solving tactics (methods that seem best suited to dealing with the problem at hand).

Only five years after NYPD’s Compstat program was implemented in 1994, fully 58 percent of departments with 100 or more sworn officers reported that they had either implemented a Compstat-like program or were planning to do so. Interestingly, however, there have been no rigorous evaluations of the impact of Compstat on crime, and one study that is currently available casts doubt on the claims of Compstat’s crime control effectiveness (Eck and Maguire, 2000; but see Kelling and Sousa, 2001). Police organizations have sought and claimed “cutting edge” status by adopting Compstat (Mastrofski, 2002).

Creating special units to deal with specific problems is an especially useful way to deal with threats to the department’s legitimacy, especially in locales where interest groups actively press police to tend to particular issues. In any city police leaders face a multitude of demands for new and different services, but have limited resources with which to respond Creating a relatively small, but highly focused specialist unit to cope with a given problem may do little to reduce that problem, but it does a great deal to alleviate pressure from the community while not disrupting many organizational routines. Thus, small specialist squads of traffic officers can provide pressure groups alarmed about drunk driving with a tangible victory in their effort to get a department to be responsive to their concerns, and the creation of that unit allows the much larger patrol division to continue operations more or less as usual (Mastrofski and Ritti, 1992;1996). This does not mean that special units that are created in response to external demands are necessarily ineffective. For example, a study of the effects of police training in handling drunk drivers showed that in some departments, more DUI training was a powerful predictor of officers making more drunk-driving arrests (Mastrofski and Ritti, 1996).  But special prams can also be a “presentational” strategy (Manning, 1977) designed to give evidence to external constituents that a department was doing something significant in response to a problem.

Other special squads have been put under this analytic microscope. Researchers have found that in some communities special gang units were formed by police in order to heighten the public’s sense of threat from gangs, in the hope of gaining resources in return (McCorkle and Miethe, 1998; Zatz, 1987 ). On other occasions, gang units have been created in response to external pressure.  Katz (2001) found that the gang unit he studied was created at a time when there was no particular threat from gangs; rather, rather the unit was a result of “...pressures placed on the police department from various powerful elements within the community, and that once created, the gang unit’s response to the community’s gang problem was largely drive by its need to achieve and maintain legitimacy among various [influentials] in their environment” (p. 65).  The gang unit’s actual function was largely ceremonial. Most of its effort went into maintaining good relations with important officials, organizations, and units within the department that could ensure that the unit survived and prospered.  Building these alliances took precedence over law enforcement activities.

Observers of community policing have also noted its remarkable resonance with community leaders and residents, and the remarkable speed in which it has spread during the last two decades.  In the mid-1980s community policing had little visibility among police or police researchers, but by 1993 ninety eight percent of a national sample of the nation’s local law enforcement chief executives agreed that,  “The concept of community policing is something that law enforcement agencies should pursue” (Wycoff, 1994).  Nearly as many considered it a highly effective way to provide police service, and almost three fourths felt that every aspect of law enforcement would benefit from community policing. National surveys have confirmed that in the wake of federal financial support for community policing that began in 1994, large numbers of departments report implementing or planning to implement specific policies, programs, and procedures associated with it (Maguire and Mastrofski, 2000; Maguire and Uchida, 2000).  A content analysis of several years of Police Chief, a monthly publication of the International Association of Chiefs of Police, and Law Enforcement News, a biweekly professional newspaper, shows that the vast majority of articles making detailed comments on community policing were completely or mostly positive about community policing (Ritti and Mastrofski, 2002).  Most praised community policing or assumed its benefits.  The handful that included negative comments typically focused on challenges to implementing it, not whether community policing itself was worthwhile. A content analysis of major daily newspapers in 26 cities around the nation also showed an overwhelmingly positive picture of community policing presented to the public (Mastrofski and Ritti, 1999). Several observers have argued that the rapid growth in popularity of community policing reflects the political environment facing police departments, and not its technical merits. (Skogan and Hartnett, 1997; Crank, 1994; Klockars, 1988; Manning, 1984; Mastrofski and Uchida, 1993; Mastrofski, 1998; Mastrofski and Ritti, 2000).

An unanswered question is how much legitimacy is conferred on police organizations by adapting to their political environment. How much public acceptance is produced?  Some evidence of the legitimating effectiveness of community policing can be found in case studies of individual cities. Based on over-time surveys of city residents, the effects are mixed (compare the positive findings of Skogan and Hartnett, 1997 with the negative findings by McEwen, TEMPE STUDY). The ability of police organizations to weather crises is another indicator of their legitimacy.  What happens following outbreaks of police corruption or brutality? If the structures that are in place to respond are judged to “work,” they sustain the organization’s legitimacy.  Another indicator of the legitimating benefits of a program or policy is its popularity among “new broom” police leaders for dealing with the problems that led to the departure of their predecessor.  As the market for top police executives has become increasingly national in scope, competition for the chief’s job has become more intense. These “up-and-comers” are highly invested in divining what will be popular with hiring agencies.  Learning from those who make the decision about whom to hire as chief would also provide insight into the degree of legitimacy various organization structures are providing American police agencies.

Assuring Fairness in Hiring and Resource Allocation

WORDEN on resource allocation (through 1980)

Wes will also want to work on this when he gets back. Rob’s thesis ends with 1980 literature.  I think the committee can live with the promise that I will review the literature on equity in police resource allocation, largely spatial, and with the prediction that I will find it wanting.

WALKER on race and gender

(Wes’ words are here) The LEMAS surveys show a steady but slow increase in the percentage of full-time officers who are Hispanic and African-American. During the decade between 1987 and 1997 the percentage of officers who were Hispanic rose from 4.8 percent to 7.8 percent, and the percent who were African-American from 9.5 to 11.7 percent (BJS, 1997: p. iii). The percentage of officers of Asian, Native American and Pacific Island origin grew much faster, but rose to only 2.1 percent by 1997 (BJS, 1997: 4) No figures are available since, for the 1999 LEMAS survey did not ask about the racial (or gender) composition of departments. In 1997, African-Americans and Hispanics were found in the largest proportions in cities above 100,000; in cities in the 500,000 – 1 million range African-Americans constituted almost one quarter of the force, and Hispanics another16 percent (BJS, 1997: Table 5 and pp. 3-4).  Women constituted 10 percent of all full-time officers in 1997, a figure up from 7.5 percent a decade earlier. Like racial minorities, women were most heavily represented in larger cities, those over 250,000 in population (BJS, 1997: Table 5 and pp. 3-4).

Walker will add hiring issues including: relationship to characteristics of the community; and who has done well in diversity recruitment.

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I BELIEVE THE FOLLOWING IS TEXT FOR A CONCLUDING SECTION OF THE REPORT, BUT I STUCK IT IN THIS SECTION FOR REVIEW.

[MHM Comment: Yes, I like this idea and material for the end of the report. Shouldn’t we also then have a section on whether the police are improving in terms of their ability to achieve their instrumental goals of reducing crime and  enhancing security as well?]

Is Policing Improving?

Early sections of this report examined the organization and staffing of police departments, and research on police operations. Another way to assess the current state of American policing is to ask, Has policing improved?  Is the performance of the American police better than it was in the past? In addressing this question, it is apparent that the longer the time frame applied to this question, the more diverse the changes that have taken place in policing. A twenty year time frame for assessing progress would encompass the community policing era, and it is important to know whether all of the effort and expense invested in that idea has made any difference. A fifty year framework, meanwhile, would encompass what is known as “the due process revolution” and the extension of constitutional standards more deeply into police work, plus the emergence of race relations as a dominant theme in policing. A fifty year time frame also almost completely encompass the span of modern research on policing.  Have these developments made any real difference in the quality of policing? Alternatively, has American policing actually gotten worse? Are the police less effective at preventing crime and catching criminals than they were in the past? Have, for example, court-imposed legal constraints tied the hands of the police to the point where they cannot effectively carry out their most important tasks? Have relations between the police and racial and ethnic minority communities have changed significantly? If they have in fact deteriorated, is that a result of the failure of the police themselves, the overriding influence of external environmental factors (e.g., the economy), or essentially a matter of perception rather than any objective, measurable factors?

What does research tell us about the progress that has been made?  In considering this question the Committee observed that the nation’s criteria for evaluating the police have changed radically over the years, as well as police behavior. We now hold police to a different standards than we did in previous periods. These shifting criteria are a function of the broader social and political changes that swept over American society at least in the last half of the Twentieth Century. They have led to what some would consider a “revolution of rising public expectations” with respect to policing. Consider, for example, gender issues and policing. Gender-related issues appeared only rarely in discussions of the police prior to 1970, and even then were a distinctly minor issue. Yet, by the 1980s, police response to domestic violence was a major research and policy issue. And beginning in the 1970s, the employment of women officers emerged as an important issue of law and policy. In short, policy makers did not even think in these terms until comparatively recently.  By the same token, our criteria with respect to crime fighting have changed radically. Criminologists have come to recognize that “crime” consists of a number of complex dimensions: the incidence of serious crime; neighborhood disorder; and citizen fear of crime. Even in this domain there are multiple ways to measure whether the police are doing better or worse. In fact, these shifts in criteria, and the response by the police to such shifts, represent an important qualitative improvement in policing.

Personnel standards

One of the easiest areas to tackle involves personnel standards. With respect to the levels of educational attainment among police officers, there has been substantial improvement. The best overview is the 1989 Police Executive Research Forum report on The State of Police Education, which found that the percentage of sworn officers with no college education of any sort fell from 80 percent in 1960 to 35 percent in 1988. Meanwhile, the percentage of officers with a four-year degree or more rose from 2.7 percent to 23 percent. There is good reason to assume that these trends have continued to the present (if only because of the steady retirement of the older less-educated cohort).

Similar improvements can be documented in the area of police training. In 1931 only 20 percent of the more than 300 departments surveyed offered any formal training. The Chicago Police Department in 1929 gave four weeks of training, one of which was devoted entirely to close order drill. The President’s Crime Commission reported that in the mid-1960s many departments still offered no pre-service training and that programs ranged in length from between one and twenty weeks. Current data indicate an average of over 1,000  hours (or about 6 months), with 40 percent of those hours devoted to field training. Field training, which is not mentioned by the President’s Crime Commission in 1967,  has become a standard component of pre-service training today. 

In short, police personnel standards have dramatically improved in at least two important respects over the course of time, and this was a significant achievement. We cannot with the same assurance, however, conclude that these changes have contributed directly to an improvement in the quality of police service. Common sense suggests that the better educated and better trained officer will be better prepared to cope with the complex tasks of police work, but we have no data to confirm that assumption.
	
Organizational Structure  

It is also possible to document significant improvements with regard to the organizational structure of police departments. The 1931 report on Chicago Police Problems, for example, reproduces the 1929 organizational chart for the Chicago Police Department indicating the Commissioner directly supervised 19 subordinates people. The chief of the St. Louis Police Department in 1942, meanwhile, supervised 23 subordinates (a proposed reform would reduce the number to seven). Limited span of control is a basic element of modern theories of supervision and management. It is assumed that one person can effectively supervise a limited number of people. Applying this modern concept to the historical examples cited, one can reasonably conclude that these organizations could not effectively carry out their respective missions because the chief executives could not possibly be informed about various activities and direct subordinates. As with the improvements in personnel standards, one can note changes in the organizational structure of police departments, with dramatic movement in the direction recommended by standard management texts. Again, while common sense suggests that this change is likely to facilitate more effective policing, we have no direct to test that assumption.

Personnel Diversity

It is easy to observed dramatic changes in the level of diversity among rank and file police officers along race, ethnic and gender lines as well. Gender issues were discussed earlier in this section. The number of female officers employed by police departments and the representation of females among command officers have all demonstrably changed. There is reasonably good data on these issues from the 1970s to the present and it is possible to measure whether or not the American police are doing better –defined as moving toward gender equity– than they were ten or twenty years ago. Before the late 1960s, in fact, gender issues were not even matters of concern. The relatively few female officers who were employed were barred from basic patrol duty, generally confined to juvenile units, and in many departments barred from promotion above a certain rank. The President’s Crime Commission addressed the employment of female officers very tentatively in 1967. To the extent that the police are concerned about gender issues and make at least some effort toward equal employment opportunity represents a wholesale improvement over the situation that existed at that time. A number of remain, to be sure, including the sincerity and effectiveness of equal employment opportunity efforts; the extent of sexual harassment within police departments, and the advancement of women into top executive positions.

Similar data can be brought to beat on questions about racial and ethnic diversity. American police departments did not begin to make serious attempts to employ representative numbers of African American officers until the mid-1960s, spurred both by the riots of the period and the 1964 Civil Rights Act. They had been advised to do so as early as the 1922 report on the 1919 Chicago race riot, but little if any action was taken. Similar advice was given after the race riots of 1943, although with much the same results. The number of African American officers, their representation among command officers, and the extent to which minority employment reflects the composition of the community served can now easily be monitored, and are a subject of vigorous debate in many American communities. In general, there have been significant improvements on all three dimensions. NEED RECENT DATA.

Supervision and Controlling the Use of Police Power

There is reasonably good support for the argument that the supervision of police officers has improved substantially over the years. This development can be documented through the history of the departmental SOP manual.  At least through the early 1960s, the basic police “duty manual” was a short booklet that could fit into a shirt pocket. Typically, most of it was devoted to a summary of state and municipal ordinances. It often included a section on standards of conduct, including prohibitions on political activity and drinking and card-playing on duty. 

Notably absent from these early manuals were the numerous policies and procedures that we associate with the attempt to control the use of discretion and in particular to prevent the misuse of authority: deadly force, physical force, high speed pursuits, domestic violence, etc. It is worth noting that the 1931 report on Chicago Police Problems, a comprehensive 280 page document, contains not a word on these subjects. Other reports on policing between the 1920s and the 1950s also do not mention these subjects. The story of developments in police supervision since the mid-1960s can be told in terms of the steady growth of these policies (often through a process of crisis management) to the point where the SOP manuals often reach elephantine proportions.

The Case of Deadly Force

The issue of deadly force illustrates perhaps as well as any the distinction between the trees and the forest. James J. Fyfe has commented on the typical deadly force policy circa the mid-1960s. Many advised officers to “use good judgment,” with no specific guidance as to when to shoot and when not to. The controlling authority was generally the state law authorizing the use of deadly force against fleeing felons. Geller and Scott describe in detail what they call the “long march” away from the fleeing felon rule and toward the present defense of life rule. Police department training, meanwhile, put great emphasis on how to maintain and fire the weapon, but not a word on when to shoot. A story widely circulated in policing circles holds that through the 1960s Los Angeles Police Department officers could expect an investigation and discipline for damaging a patrol car but no real threat of an internal investigation for shooting and killing a citizen. In this light, the fact that police use of deadly force is a significant issue at all and that police departments make serious attempts to control it, are themselves also indicators of progress. Police now openly recognize the transcendent importance of their power to take human life, they attempt to limit the use of this awesome power by providing officers with specific guidance, and they typically investigate firearm discharges.

There is also reasonably good data on national and local trends in major cities from the early 1970s to the present, on the number of citizens shot and killed by police. In general (and allowing for some year to year fluctuations), these data indicate that officer involved shootings have fallen; that the number of unarmed and non-threatening persons shot and killed has dropped dramatically; and that the racial disparity in persons shot and killed has narrowed. These trends are regarded as a significant achievement by many observers. More detailed analyses of these data may also be possible.

Responding to Citizen’s Complaints
Another indicator for assessing progress in policing involves citizen complaints about police misconduct and the institutional mechanisms that have been developed to handle them. Judgements about this again confront the problem of untangling police behavior and the expectations that Americans have concerning their police.

For example, in New York City, the number of officially recorded citizen complaints rose ten-fold between the early 1960s and the early 1970s. It is unlikely that the quality of police work in that city deteriorated by a similar factor; if anything, it probably improved as a result of improvements in personnel standards and supervision during that period. It is more likely that the explosion of complaints reflected a change in public expectations. An incident of perceived police misconduct that was tolerated in, say, 1960, became the occasion for a formal complaint by 1970. Instead of “lumping it,” people chose to act on the incident. This change reflects higher expectations about the quality of police service, and perhaps a belief that filing a complaint would be worth the effort. 

Looking at the issue from a national perspective, we see a change from 1968, when there were no external citizen oversight agencies in the United States, to 2001, when there are over 100, covering about 80 percent of the big cities and an estimated 35-40 percent of the American population.  The creation of an oversight agency can be viewed as a policy decision by locally elected leaders that the pattern of complaints against the police, the efficacy of existing institutional arrangements for dealing with them, and  their constituents’ views about what needs to be done, require an alternative system of police oversight. The two phenomena – a rise in complaints and the creation of a new complaint procedure – are indicators of a dramatic change in public expectations about the police.

Are they doing a good job of handling citizen complaints? As with the other issues discussed in this section, in detail this is an elusive question. There are no consistent data on complaint rates nor complaint processing rates, and the definitions of both vary widely across agencies. In some, virtually every citizen comment is recorded, while in others many incidents are handled informally and are not recorded at all. Even court records are difficult to assemble, because persons who sue police alleging they have been victims of excessive force can do so in federal or state courts (Fyfe, 2002). And even in cities with new oversight agencies, public dissatisfaction remains. In part this reflects the inadequacies of these new agencies. However, the creation of external, independent citizen complaint procedures represents an approach to police misconduct that is a radical change from the past.  These new institutions and procedures, reflecting new expectations by the public and civic leaders, are an indicator of improvement.

Responding to Citizen Requests for Service
One of the key issues in police research and policy involves police response to citizen requests for service. An early section of this report discussed the importance of the nature and extent of citizen calls for service, police response times, officer disposition of calls, and citizen satisfaction with the service they receive. Shaping these was a radical shift in the nature of patrol work resulting from the advent of modern communications technology in, roughly, the middle of the twentieth century. The tripartite combination of household telephones, motorized patrol vehicles, and the two-way radio linking each car with police headquarters, transformed the very concept of “police service.” Prior to the completion of this communications loop, it was simply not possible for a citizen to summon rapid police response to a real or imagined problem.  More often they were forced to personally intervene, or to search the streets in hopes of locating a police officer. It is likely that in most cases the citizen chose to “lump it,” to do nothing at all. This may have cultivated low expectations about the quality of life in the neighborhood, and it certainly did not encourage extensive reliance on the police to solve immediate problems. For their part, police officers patrolled on foot but rarely had occasion to enter private homes.

The radical impact of the communications technology lay in creating the possibility of getting something done about a problem, by the police. Citizens could pick up a phone and expect to have a police officer arrive on the scene and deal with the problem. The very nature of police work was radically altered, leading to a revolution in terms of public expectations –about both police service and the quality of life in the neighborhood. On their part, the police professionalism paradigm emphasized efficient and speedy response to calls for service. Professional policing was defined in terms of responding to all calls for service and shrinking response times to a minimum.

The police embraced the new communications technology without fully understanding the ramifications of doing so. From their perspective, acquiring more police cars, sophisticated communications centers, and promising to respond quickly to all calls represented the very essence of being modern and professional. But by aggressively advertising their new capacity to serve, they cultivated the habit of calling the police for anything and everything. The three digit 911 system served to make the process simpler and brought forth a higher volume of calls.

The development of new communications technology provides another perspective on the question of whether the police are improving. Between the 1930s and today, concern about police service included complaints that the police were providing less-than-prompt response time, there insufficient numbers of patrol officers and patrol cars, and citizens never had a chance to meet personally with an office on the street.. Yet, from a broader historical perspective the police were being far more responsive to citizens than had been previously unimaginable. Technology transformed both public and professional expectations about the nature and quality of police responsiveness. The police were being held to a higher standard, and were often judged to be failing by that ever-rising standard.

Beginning in the 1970s, however, new views of police service quality began to emerge. Systematic research on police operations challenged the underpinnings of the professional model of policing. Faster response times, it was found, did not result in higher clearance rates. A study of differential response times, moreover, found that citizens were satisfied with a delayed response if they were informed that this is the service they would receive. Thus, faster response times produced no gain in citizen satisfaction.

More recently, the paradigm shifts that accompanied community policing and problem oriented policing have led to the conclusion that earlier preoccupation with responding to individual 911 calls was unproductive to the extent to which it did not address underlying problems and chronic conditions. New models of police service emerged. In varying degrees, both community policing and problem oriented policing emphasized community engagement and partnerships as a means of identifying underlying neighborhood problems. The partnership approach views citizens as “co-producers” of police services. This approach represents a different model of how the police should receive and respond to citizen requests for service. And, in turn, it has led to a different set of measurable performance issues: the nature and effectiveness of community meetings (attendance levels; citizen vs. police dominance; types of problems identified) and the police response to the resulting problem identification (police actions taken; police action conformity with citizen concerns; changes in real and perceived neighborhood problems). Again, public and professional expectations about the nature and quality of police service have begun to shift.

Trends in Police Legitimacy

Debates over trends in policing also make frequent reference to presumed ups and downs in police legitimacy in the eyes of the public. For example, some argue that community policing developed in response to a crisis of legitimacy, especially in minority communities (Skogan and Hartnett, 1997). The police are said to have lost their legitimacy in the eyes of the public during the racial crisis of the mid-1960s and ensuing big-city riots, and again as a consequence of the rise in violent crime between the late 1960s and the early 1990s.

One way to explore the proposition that police have gained or lost legitimacy would be to examine public opinion poll data. The Gallup Organization fielded one consistent question about the police throughout the 1990s, asking Americans how much confidence they had in police as an institution.” The meaning that respondents drew from this question is not entirely clear, but measured by the percentage of adults who reported they had a “great deal” or “quite a lot” of confidence in police, the public accorded them a significant level of respect. In 2000, 54 percent of Americans had confidence in the police; they stood only below the military (64 percent) and “the church or organized religion” (56 percent) on a list of 15 institutions. Next on the list came the Supreme Court (47 percent) and banks (46 percent). By contrast, members of Congress were held in esteem by 24 percent of the population, and Health Maintenance Organizations by 16 percent (see:  www.gallup.com/poll/).

There were only small shifts in this measure of support during the 1990s. In 1993, confidence in police stood at 52 percent, and it peaked at 60 percent in 1996. It then dropped steadily, hitting 54 percent in 2000 and losing most of what it had gained during the 1990s. Other national opinion measures have repeated more sporadically. A series of questions administered by the Gallup Organization asked Americans how they would rate “. . . the police in your community. . .” on a number of specific dimensions. Between 1992 and 2000 there was essentially no change in national satisfaction with police “being helpful and friendly” (73 percent and 74 percent) and there was no change at all in satisfaction with “responding quickly to calls for help and assistance” (69 percent both times). There was a small increase (from 63 to 67 percent) in the percentage of Americans believing the police rate “excellent” or “pretty good” at “treating people fairly,” and in the percent giving police positive marks for “not using excessive force” (from 68 to 72 percent).  Not surprisingly, given declining crime rates nationally, the percentage giving police a favorable rating for “preventing crime” went from 58 to 69 percent between 1992 and 2000 (see: www.gallup.com/poll/). This substantial gain was not reflected in general satisfaction with police, however, reinforcing the evidence presented below that factors other than their apparent crime fighting ability play the most important role in shaping public approval of the police (Roberts and Stalans, 1997).

There have been few over_time studies of individual cities, research which could reveal more about the impact of specific events and policies on the views of the public. In a nine_year study, the percentage of adult residents of Chicagoan averaging a favorable rating of police in their neighborhood across ten measures of opinion rose steadily between 1993 and 1999, climbing from 32 percent to 52 percent, before dropping to 49 percent in the spring of 2001. Support rose steadily among whites, African-Americans and Latinos. These trends did not parallel comparable national opinion figures, and may reflect satisfaction with that city’s well-known community policing program (Skogan, forthcoming).

One difficulty with using existing opinion data to assess trends in legitimacy is that how attitudes about the police are measured can have important consequences for the conclusions that can be drawn about public support for police. In the same years that surveys asking the public “how much confidence” they had found 50_60 percent support for police, other surveys asking citizens how favorably they view local police found that those responding “very” or “mostly” accounted for about 80 percent of all respondents. Commercial opinion polls employ a variety of measures of opinion, including  confidence, favorability, satisfaction, trust, quality of service, support, and respect, and it is not clear that the results of one can be translated into another  (Gallagher et al., 2001:11_18).

Researchers have noted that higher levels of specificity in the criterion for evaluating police tend to produce lower evaluations. For example, when the public is asked how much respect they have for the police, the positive responses fluctuate between 50_80 percent over the years.  However, if asked to evaluate how honest and ethical police are (a more specific criterion), positive responses fluctuate between 40_50 percent. Other aspects of questionnaire construction may also have an impact on the inferences made from the results: the wording of the response options, whether the focus is on the police generally, a specific police organization, or policing in one’s neighborhood. Contrasts between the level at which questions about police are cast also seem to have a systematic effect on the findings. Americans rate the police in their own neighborhoods more favorably than they rate them nationally, and they are more likely to believe that a problem like corruption or brutality exists somewhere else than they are to see it a problem in their own community (Brandl, Frank, Worden and Bynum, 1994; Weitzer and Tuch, 1999).

Another limitation of existing data is the relatively short time frame for which it is available. In a review, Gallagher, et al (2001) found only a few questions that pre-dated the 1990s which were then repeated in consistent fashion during the last years of the Century. In the 1960s, two polls found that an average of 74 percent of Americans professed a “great deal of respect” for the police; when repeated in the 1990s, four polls found this average had dropped to just under 59 percent. They point out that this trend parallels the general decline in public confidence in government institutions during the period. They report that polls of high school seniors conducted yearly since 1987 found declining support for police during 1987-1992, fluctuation responses during the mid-1990s, and increasing support at the end of the decade. Age is an important determinant of attitudes toward police, so all of these reports were more negative than general levels of support for police.

More fundamentally, repeated polls do not take into account the possibility that there are changing definitions of what constitutes “good policing” in the eyes of the public. An earlier section of this review in trends argued that both the capabilities of police and the expectations of the public have change over time, mostly for the better. The issues that the public is concerned about, issues that are incorporated into responses to surveys asking “how good a job” the police are doing, thus may assessing a moving target. Opinion may also be formed in reaction to different kinds of events, ranging from episodes of corruption to reports of police brutality, and widespread media coverage of a single event, such as the Rodney King episode in Los Angeles. In an era of community policing era, expectations about information sharing and working closely with neighborhood residents place a new set of evaluative demands on police. Similarly, there may be higher expectations regarding civic responsiveness to citizen complaints about police misconduct.