Challenging Prejudiced Resource Allocation and the Importance of Procedural Justice

1. Blame, Disadvantage and Prejudicial Resource Allocation Professor Mike Hough Birkbeck, University of London Windsor, 25 April 2014

2. What Ill discuss Look at perverse resource allocation And the limits of criminalisation Thru lens of procedural justice theory I shall look at the policing of minorities And possibly drug policing

3. Why do we obey the law? Instrumental vs normative narratives The control of crime through deterrent threat? Or social motivations to behave decently? Normative commitment to the rule of law? What sustains this commitment? Mainly moral values, supported by.. A sense that the justice system has legitimate authority

4. Trust, legitimacy & consent: procedural justice theory Fair and respectful treatment Trust Trust Legitimacy Legitimacy Compliance Legitimacy Cooperation Normative compliance is better and less costly than instrumental compliance

5. Definition: the justice system has legitimacy when: 1. Citizens offer their willing consent to the to the police and the justice system 2. Not just coerced consent 3. This consent derives from moral alignment between the justice system and citizens 4. And from belief that the system acts legally and fairly

6. Trust in police fairness How often would you say the police generally treat people in [country] with respect? (4-point scale, not at all often, not very often often, or, very often?) % saying not very/not at all often

7. Perceived legitimacy obligation to obey To what extent is it your duty to do what the police tell you even if you dont understand or agree with the reasons? (Scale: 0- 10, running from not at all to completely.) MEAN

9. Contact matters: perceptions of legitimacy

10. Principles of procedural justice Improve the moral alignment of the justice system and popular values Through fair and respectful treatment Playing by the rules Permitting people voice Thus building public trust and perceptions of legitimacy And thus consent to the rule of law A sort of domestic equivalent to soft power in international relations

11. Policing minorities: hard power traps A study we did for EHRC Inner city areas in metropolitan forces Ethnically diverse Histories of community tensions and riots But striking differences in style and feel a. Adversarial/street control b. Rule of law/procedural justice

12. A commitment to street control style in Area A We just have to accept that here we will never be in the right, or liked. We are damned if we do a lot of searches and damned if we dont. I would rather stop and search more young people and stretch the boundaries of reasonable suspicion than turn up at a parents front door to tell them their child is either dead or in hospital. The local residents need to decide what they want, aggressive policing that keeps kids alive or nicey nicey policing and more dead or injured kids.

13. Trapped in adversial policing? Police find 3 teenagers smoking cannabis in a car They search the car They say theyll issue an (informal) warning you wont tell my mum? Then mum appears on the scene I have no respect for you whatsoever. .. Im his mother, you cant tell me to go no fucking where fucking racist pigs Boys start getting abusive..

14. Professional policing Area B More personal distance in encounters Polite but impersonal Explaining Listening Apologising How to shift from adversial to professional policing? How to sell this style of policing to Area A?

15. Obstacles to policy shift Who could object to principles of fairness and respect in policing?

17. Obstacles to policy shift Who could object to principles of fairness and respect in policing? Cops who believe ends justify means? Politicians who want crime crack-downs? Street-cops who face challenges to their authority? Challenges that are threatening and difficult for young men wielding authority Hard power traps

18. Obstacles to policy shift Options for handling authority challenges Overwhelm the challenge Dirty Harry Trade and negotiate possible but risky Back down - disastrous Defuse the challenge needs social skills in de-escalation Finding a persuasive vocabulary to win over front-line cops Rewarding professionalism

19. Obstacles to policy shift Links between procedural justice and organisational justice within the police Fairness within the organisation may be requirement for fair treatment of policed Internal organisational values are important Idea of self legitimacy

20. Legal rules Moral rules Scenario 1: Legal and moral rules coterminous

21. Legal rules Moral rules Scenario 2 A partial disconnect

22. Legal rules Moral rules Scenario 3: Legal rules subsume moral ones l

23. Legal rules Moral rules Scenario 4: Moral rules subsume legal rules

24. Blame, Disadvantage and Prejudicial Resource Allocation Professor Mike Hough Birkbeck, University of London Windsor, 25 April 2014

25. Limits to normative engineering? Is it possible to extend the normative reach of the institutions of justice? Yes Is it desirable to do so? Yes and no Yes: a trusted justice system functions better, less coercive, less costly, nicer No: the state should keep outside of its citizens heads No: values are values, not means to ends

26. Principles for normative engineers Parsimony in use of criminal law Restrict to regulation of mala in se Use administrative sanctions for mala prohibita Or else re-stigmatise these mala prohibita

27. Principles for normative engineers Take legitimacy seriously Maximize public trust in justice by aligning law, practice and public preferences But principles of human rights must constrain responsiveness to public opinion

28. Drug legislation and legalisation The instrumental arguments are well known Costs outweigh the benefits Interdiction drives up prices Creates more crime Impossibility of keeping up with new drugs We should attend more to normative ones Criminalisation is mis-aligned with public morality (or important segments of it) Criminalisation will be seen as unfair

29. Blame, Disadvantage and Prejudicial Resource Allocation Professor Mike Hough Birkbeck, University of London Windsor, 25 April 2014