Episode 5: Procedural Justice

Procedural Justice is more than a simple buzzword.  It is related to police legitimacy, de-escalation, hot spots policing, and organizational justice.

This week we talk with Dr. Justin Nix, a Distinguished Associate Professor in the School of Criminology and Criminal Justice at the University of Nebraska Omaha, where he teaches classes on policing and coordinates the Master of Arts degree program.  Justine offers a solid discussion of Procedural Justice basics, but also delves into empowerment hypothesis and legal estrangement.

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Transcript

Welcome to the police and service training podcast. This podcast is dedicated to providing
research evidence to street level police officers and command staff alike. The program is intended
to help the police and law enforcement community create better programs, understand challenging
policies and dispel myths of police officer behavior. I'm your host, Scott Phillips.
Procedural justice, implicit bias, legitimacy. These are some of the buzzwords that have populated
conversations about the police over the past decade, but they are more than simple buzzwords
or political platitudes to make the public happy. These are real issues that are intended to bring
improvement to the police. Now, take note, I do not use the phrase police reform in my personal
opinion and others may disagree. This is a phrase that should be sent to the trash bin of history.
Rather than using police reform, we should be using police improvement. Now, after all,
isn't that what we should all strive for? Improvement. If I eat healthy food or I exercise,
it's to improve my physical well-being. If you attend a training session or a college class,
it's intended to improve your understanding of something. And if a police agency institutes
a new policy, it's intended to improve police performance. If you are content to maintain the
status quo, I suppose that's fine, but please don't strive to regress to something worse.
So today we're going to focus on procedural justice, what it means, what it really is,
and how it can contribute to better policing. Joining us is Justin Nix, a distinguished associate
professor in the School of Criminology and Criminal Justice at the University of Nebraska
Omaha, where he teaches classes on policing, and he coordinates the Master of Arts degree program.
Justin has conducted research in a variety of areas, including officer-involved shootings,
de-policing, body cameras, and turnover in police agencies. Welcome, Justin.
Thanks for having me. Happy to be here.
I'm glad you're here. As I mentioned just a moment ago, the term procedural justice has been flying
around for a decade or so. Can you give us a brief overview of what this actually means?
Yeah. In so many words, it's the golden rule. It's to treat others the way you'd like to be
treated. And we've got decades of research from the psychologists that tell us people value being
treated with fairness. And fairness tends to look like the belief that you're dealing with someone
who treats you with respect and dignity, someone who, in an exchange situation where there may or may
not be a power or an authority dynamic, right? But when there's an interaction happening, could be
between a customer and a cashier at a restaurant, could be between a police officer and a driver,
that person that's making decisions that affect you is doing so in a neutral and an unbiased way.
That person's listening to you, like actually listening, giving you a voice, allowing you to
tell your side of the story, and otherwise demonstrating genuine concern or trustworthy
motives, right? And so when those four things happen, dignity and respect, neutrality, voice,
trustworthy motives, we as humans tend to believe that it was a fair process. And that has major
implications for our perceptions of whatever the outcome may be, as well as in the context of policing,
more long-term consequences of any one-off interaction with a police officer.
Oh, very good. So you've done a lot of research in different topics, as I mentioned, and hopefully
down the line, maybe we can have you back and talk about a few of those. But what got you interested
in this particular topic?
Yeah, I think it's an interesting story, right? So I was just kind of meandering along in my PhD program.
I never actually aspired to go to graduate school. I just, I was at the University of South
Carolina doing my undergrad in criminology and criminal justice. And I remember pretty distinctly,
I was the president of our student organization, and I was trying to organize a career fair circa
2007, 2008. And we couldn't even have one because nobody was hiring because of the Great Recession,
right? And one of my professors approached me and said, you know, you'd be good for grad school.
If nothing else, it'll buy you some time until the recession recedes and the job market improves.
And so I said, you know, sure, I'll hang out a little longer. And then lo and behold, I fell in love
with it. So fast forward to 2013, 2014, I'm gearing up for my dissertation. And my first paper with
Scott Wolf and Jeff Rojack and Bob Kaminsky came from a project that we'd done with a local agency
that involved a community survey of several neighborhoods in the area. And one of the
primary focuses of that survey was perceptions of police. So my first paper happened to be about
procedural justice. It was really more about the opportunity to publish a paper.
But as I'm gearing up for my dissertation, which involved a survey of a national survey of police
chiefs, I remember while my survey was in the field, Michael Brown gets killed by police in
Ferguson, Missouri, and that sets off a wave of protests. And this whole like second great awakening
that Larry Sherman calls it about, you know, police use of force and the lack of good data and so forth.
And so I like to think that I just kind of fell backwards at the right time into a really important
and timely topic. And, you know, going forward after completing my dissertation in the next couple
years, arguing about the Ferguson effect, and you know, how much effect police have on crime or don't
have on crime, this, that and the other, procedural justice and legitimacy have always been sort of
central to those different tangents that I've gone down. Because again, this is of the utmost
importance for policing at every crisis that they experience, whether it's Ferguson or George Floyd
in Minneapolis, if they don't have enough sort of legitimacy in their bucket, you know, if they
haven't made enough deposits into that legitimacy bucket, it can all come undone, you know, with the
snap of a finger, as we've seen.
Right. Well, you should also know that I kind of fell into, you know, I never intended to go to a PhD
school. So that tends to be the consensus when I talk to people at conferences, you know, I never
wanted to do this, but we all end up here somehow. And now this is a good transition, because you
mentioned the legitimacy bucket a moment ago, whenever I read about procedural justice, it's
typically commingled with the term police legitimacy. So do me a favor and help me understand, help the
listeners understand, is one superior to the other? Are they kind of like, you know, different sides of
the same coin? Or is, you know, one an umbrella term for the other?
Depends on who you ask. We academics are still sort of arguing about the conceptualization of them.
But Tom Tyler, who's sort of the architect of this thing, would argue that procedural justice
needs to come first, right? That when authority figures like the police exercise procedural justice,
and when people perceive it as such, they will grant the authority figure or they will bestow
legitimacy upon them. And legitimacy is just a $5 word that means trust and a feeling of obligation to
obey that authority, right? To feel, you know, you obey the authority, not because you're afraid of the
consequences, like being arrested or ticketed. You obey the authority because it's the morally appropriate
thing to do, right? And appropriate because they are, they have that legitimacy in a democratic society,
which is so important, right? We are policed by consent, at least in theory. And then as we'll talk about
later in the episode, I'm sure legitimacy leads to a host of good outcomes.
Now, I've read several of your articles, you've, you've, you've written a couple of times on this,
but one of them was a book chapter. And when I read the chapter, you had mentioned that most
people are unfamiliar with the legal process and what is fair, at least with respect to police
interactions. And it kind of shocks the police officer to hear that even a former police officer,
because we think we're interacting with everybody that's out there. And it's just simply not true.
So without a clear indicator, back to the people, without a clear indicator of what is fair by a
regular person who doesn't normally interact with the police, they're going to be looking for cues and
how the officer behaves. And they're going to try to interpret those as what does, what seems fair.
That's right.
Now, this seems related to the issue of policing and dark humor, which I've written about that most
people would never understand the comments an officer can make because they can be deeply offending
with the dark humor and the jokes officers make for a variety of reasons. And I, I've spoken on this
with a prior podcast. So procedural justice, that kind of behavior seems mostly directed at average
people that a cop will stop on the street for a traffic violation and not regular bad guys.
Am I correct or incorrect about that?
Well, I think that, again, folks like Tom Tyler and proponents of procedural justice theory would say
that it's important to use it always in every interaction, right? Obviously, there are other
considerations. I think police officers would be quick to point out about, you know, whether it's
safe to do so and so forth. But I think that, you know, data from the Bureau of Justice statistics
routinely tell us that about one in four or one in five people have at least one contact with a
police officer in a given year, right? In the context of a traffic stop, or they've called the police
for help. And so what that means is that, you know, another 75 to 80% of us don't have any
interaction with a police officer. And so over the life course, I can count maybe on two hands how
many times I've been pulled over or otherwise interacted with a police officer where they
initiated the contact. And so for most people, when we do when the blue lights do go off in the
rearview mirror, and your heart kind of ramps up a little bit, but you don't know what necessarily
is the fairest outcome. You hear stories about the five miles over rule, you know, if I was just
going five over, I'm okay, right? But you don't necessarily know, like, how stiff of a penalty
the officer could could dish out in the form of a ticket, right? So you don't know what like,
the right outcome is. But if the officer takes the time to introduce his or herself and explain,
you know, not only were you speeding, but there are kids in the area, you know, this is very dangerous,
and we're trying to help, you know, reduce highway related fatalities, etc, etc. And like listens to you
says, hey, why were you speeding, you know, and allows you to say, well, you know, I'm late for
work or whatever. Even if that doesn't affect the outcome, the driver is going to feel like,
well, you know what, I was, I was in the wrong and the officer was at least kind and courteous about
it and fair. And so it's okay, I'm not going to be upset about that. Contrast that against the
officer who's rude and is like, what are you doing? Are you trying to kill somebody? You know,
you need to slow down and here's a ticket. And you know, it's just it's going to be a different
when you go to tell that story to your friends, it's going to be a lot different, right?
Yeah, I when I used to teach this in criminal justice, we would get a procedural justice as
a component of one of the lectures. And I used to tell the students, you know, walking in the door
of like a loud music disturbance, yelling, you know, turn off the frickin music and shut your
goddamn mouth is not a good way to start a conversation. Right. But it does that leads me to
the next question. If when I did work the streets, it's been a course years, but you often an officer
will have interactions with people who are no kidding bad guys. And these are, they can be
formal, obviously, but they can also be informal, because they already kind of know each other
because they were playing in that field, as it were. I know what you did, you know what you did,
you know that I know what you did. And sooner or later, I'm going to catch you. So I'm kind of
curious, now we're not, we've shifted from the average person who just gets pulled over every,
you know, four or five years and doesn't have normal interactions to almost the game that's
being played out there. How does procedural justice apply if it's, if it's almost a game
with some of these people? Yeah, that's a great question. And some colleagues and I actually did
some research on this years ago, where we sort of integrated procedural justice theory with
decades of research on the so called demeanor hypothesis, right? When cops interact with people
who are rude or antagonistic or hostile or calling them a pig, that is, that signals to the police
officer that, you know, something's not right here, right? Why would a person be so disrespectful
unless they're hiding something, right? And so you raise a good point, which is that officers,
you know, a lot of times they know they've got the person dead to rights. They know that the person's
guilty, right? And there's this game that's being played. But I would also suggest that even in
those situations, officers are still working on incomplete information, right? They might know that this
person committed the crime or whatever. But what they don't know is, does, does the person have a
gun in their waistband, right? Or is there a knife on this person somewhere? So there's still a little
bit of uncertainty from the officer's perspective. And when a person is being antagonistic or hostile,
they're going to take that as a danger signifier, right? Something's going on here. And in survey
experiments that we've done with officers, right? So where we give a survey to a whole lot of officers,
and we randomize a vignette where some of them read about an interaction with a suspect who is
more or less compliant, or at least not overly antagonistic, versus the same exact set of
circumstances, same suspect description. And when you interact with that person, he's being
antagonistic and angry. Cops tell us pretty clearly, like, yes, it's way less important to
explain things to this person or give them a voice or treat them with dignity and respect.
And it makes sense because the first thing that's going to be on their mind is safety,
right? Let's make sure that this person is an arm, let's get them in cuffs. And then we can get all
that procedural justice stuff. But it's interesting, because I think that the psychologists and the
proponents of procedural justice would say, like, these are exactly the kind of circumstances
where you might be able to get the most out of procedural justice, right? If you can get this
person to trust you and believe that you have trustworthy motives, it can spell good news in the long
term. But on the flip side, it's the hardest for officers, because again, they're going to
prioritize officer safety.
Yeah, it's one of those things you can see an officer walking in the door, or walking into a
situation where somebody's, you know, riled up already about something, and then suddenly the
damn cops show up. And an officer, you know, speaking in, as you say, a calm tone, procedurally
just, hey, Joe, you know, take it easy. It's okay, no big deal. Everything's cool right now.
Now, they might not, you know, the officer might not think they have a gun on them, but that
they're always being safe. They're always going to worry about that. But using that
conversational tone might just, you know, contribute to de-escalation, which we're not
going to go down that road right now, but that might contribute to the de-escalation.
And as I was preparing for this podcast, I was talking to a couple of officers
and having a conversation, and I mentioned that I was going to be doing this.
And one of them said, and I don't think this will give me an explicit rating for the podcast,
but one of them says, look, you don't always have to be an asshole to an asshole.
And so that's the kind of thing that officers, I think, should be aware of that.
Yeah, there are going to be times, like you said, okay, this guy's riled up. I have to be
protective of myself. And I may have to raise my voice, but there may be opportunity for me to,
you know, just, you know, try to calm it down, chill everybody out. So I'm glad you answered it
that way. That was good information. Now, again, part of your article, or actually the
chapter had to do with the idea of procedural justice contributing to citizen cooperation
and compliance. Those are two different animals, right?
Yeah. Yeah. So compliance is going to be, that can be short or long-term, right? So in the short
term, is the person going to comply with the lawful order that I've given them? In the long-term,
we can think of it more in terms of legal compliance, right? Which is obeying the law in
your day-to-day, which is huge because cops can't be everywhere all at once. If people only obeyed the
law because they were afraid a cop might catch them, that's really bad news for the cops, right?
That's really hard for them to have this feeling of omnipresence. Cooperation, on the other hand,
is going to be things like picking up the phone and calling 911 when something seems out of order,
right? Or being willing to provide information to help with an investigation or being willing to
testify at trial and helping officers in their crime-fighting mission, right? That's what we
mean by cooperation. Okay. Yeah. Now, also the chapter mentioned it. I thought this was interesting
that officers, when they act in a procedurally just manner, it contributes to empowerment.
Yeah. Can you explain what you mean by that? Yeah. So that's a different animal and that's
one that hasn't been written as much about by academics. So empowerment is, you know, the extent
that you're willing to enable or empower the police to do what's necessary to reduce crime.
So think of it like, especially in this age of technology, some of the only research that we
have, not the only research, but the little bit of research we have is done by some folks,
Rick Mole and Brianna Fox down at South Florida, where they were interested in things like surveillance,
the use of drones, military equipment, et cetera. And the willing that the extent that the public
is willing to empower the police to use those tools in fighting crime, right? So it's one thing
to say that you trust the police, right? If the chief comes out, like our chief here in Omaha
recently cited, you know, pretty historic lows in crime figures for last year and says, you know,
we've got great relationships with the community. And so it's one thing to come out and say like,
well, you know, I support our chief and they're doing great things, right? And I trust that they have
our best interests in mind. It's another thing when the chief says, all right, we need to increase
our budget by 10%, not that the chief here said that, but as an example, and we need to go buy
body-worn cameras or we want to go buy a bunch of drones. It's another thing to then show up at a
community meeting and voice your concerns or your support for that policy proposal, right? And so if
you're willing to go vote or willing to have your taxes increased to support those kinds of things,
or willing to show up and say like, I trust that our police department is going to use this
responsibly and it's going to be in the community's best interest, that is empowerment.
That's really interesting because especially these days here in Western New York, where I'm located,
you can get some hefty snowstorms. And a couple of years ago, there was a blizzard. And again,
talking to a police command officer, he mentioned that they really would have been helpful if they
could have had an MRAP. But that's that, you know, the military, you know, style equipment that
was so frowned upon after the, after the Michael Brown incidents. And then the militarization issue
was, was, was brought up extensively. And suddenly agencies were, you know, discontinuing their use
of any of that and collecting or gathering any of that kind of, you know, semi-military information,
equipment. So here, if you empower the, if, if you, if the local police officer is being procedurally
just to the general public, the general public's more trusting of the police to use that power that
they have responsibly so that when they use this piece of equipment or they want to buy it,
there's a trust on the power of the public that yeah, that they're going to buy it, but they're
not going to be using it to break down buildings. Yes. To a point, right? So this is where I've,
to throw another wrinkle in there, I've got a really, what I think is a fascinating paper with
Kyle McClain down at Clemson University, where we look at the empowerment hypothesis and we go
through this thought exercise of how, you know, it's a, it's a bounded authority that, that the
police, as long as they're using procedural justice, they'll, they'll receive empowerment
up to a point. And we use stop, question and frisk as an example. If it gets to the point where
stop and frisk is so widespread that it's become, that courts are saying it's unconstitutional,
right? That you're stopping everybody and you don't have reasonable suspicion to do so,
you know, then, then it's going to mess up the feedback loop, right? Where you've been empowered to
use stop and frisk because it's purported to reduce crime, but then you've done it to such
an extent that it's being argued that it's unconstitutional, that's going to undermine
your procedural justice. You're actually violating our rights. And so I do think it's important to
point out that, you know, this works up to a point where there's a line and people are going to say,
you know, in a democratic society, that's undemocratic, that's enough.
Yeah. Even, yeah. There are lines in the sand, as you say. Yeah.
Okay. The other day I was reading an article and it had dealt with procedural justice and it stated,
and I've got the quote written down, quote, that procedural justice policing is critical for
protecting trust in police and for mitigating conspiracy theory acceptance, unquote. Now I'm
less concerned about conspiracy theories, but it did make me think, do you think that there are some
people who have such a deeply held belief that the police are unfair, that procedural justice is just
not going to do much to assuage their concerns? Yeah, absolutely. There's some really great work
by Monica Bell on what she calls legal estrangement. And so for some people who typically are going to
come from historically disadvantaged groups and who maybe grew up in an environment, so think of
young, poor, inner city African-American children who may have grown up in an environment where you don't
talk to the police, you don't trust the police, they're only here to abuse our rights,
they're not here to protect us. And so something like procedural justice theory, which is focused
on the how, not the when or the why, so how police treat people when they interact with them,
not necessarily when police should even be interacting with them, it's not going to do
anything for those people because they're legally estranged. There's no amount of procedural justice
that's going to be able to undo the sometimes decades or generations worth of harm that's been done
through direct and vicarious, you know, contact with the police. So that's a real, that takes the
wind out of the sails a little bit for the theory for me, if it can't reach those people that arguably
need to be reached the most. So that's a great point to bring up is that, you know, in some cases,
this is just going to be fluff and it's not really going to move the needle with some groups.
Yeah. And that's, that sounds like a problem when it comes to some of the places that are the hotspots
where the police are. And again, this is a different topic, but when it comes to hotspots,
officers are supposed to go there and, you know, engage with the public, whether it's, you know,
a guy cutting his grass, lady walking her dog, or, you know, one of the, you know, one of the bad
guys that you're playing that game with, if you're in that neighborhood and those people don't even
want to be bothered with you, Hey, I'm cutting the grass, piss off. Yeah. That's, that's not going to be
very helpful in those kinds of environments. And it's an interesting problem for the police,
because what are they supposed to do? Just not even try, throw their hands up and say,
well, nothing we can do. Well, that's, that's unsatisfactory. And so if you look to some of
the work that inspired my dissertation was done by Anthony Bottoms and Justice Tankebe on the dialogic
nature of legitimacy, right? So they, they argue that legitimate authority derives from a dialogue
with the people who are subjected to that authority, right? So police and communities are in a constant
dialogue with the people that they police about what's fair, what's unfair, right? What's acceptable,
what's unacceptable. And so strong leaders and strong departments are going to be listening to
their communities. And importantly, a community could have multiple voices, you know, multiple
different expectations of what appropriate policing looks like. And so, you know, in those hotspots,
if you've got people telling you loud and clear, like, this is not what we want,
then you need to find a way to have a conversation about how police can and should be serving that
community or that hotspot, because to completely withdraw would be to abdicate responsibility,
right? To, to say, well, they don't want us, so they're going to fend for themselves. Well,
that's not acceptable either. So you've got to come up with a way to, to have a dialogue and figure out,
okay, what does appropriate policing look like and how can we get there?
Fascinating stuff. So can you identify two, maybe three implications of the idea of procedural
justice for police practice, police leaders? Yeah, I think it is. So we've come a long way in
the last 10 years or so, as this has become a buzzword, I can remember going and administering
surveys and having cops raise their hands and say, wait, what's procedural justice? Never heard that
term before. So these days, I think it's pretty commonplace. Even if they can't like define it and
conceptualize it like an academic would, they more or less get it. But that being said, it's like,
we can all still like focus on doing more of it, right? It's, I tell, you know, my daughter and,
you know, in conversations with friends, I often, you know, lament that if we all just woke up each
morning and said, I'm going to try my hardest not to be an asshole today, how great would the world be?
Like, if we all really did prioritize, I'm going to not be an asshole. You know, you go through to check
out and the cashier has a little bit of an attitude or just clearly doesn't want to be there,
right? Think to yourself, what might that person be going through? They might be having a tough day
and you being an asshole back isn't going to help anything, right? So just smile, be polite whenever
you can, and we'll all be better for it. So to these trainings that have been implemented in the
Chicago Police Department, for example, and really around the world, agencies have started training on
procedural justice. I've seen cops walk into the sort of mandatory recertification training and
they're on their phones and kind of rolling their eyes and just there because they have to be,
you know, but it really is important and it really is something that we could all be more intentional
about, right? And so to this latest fad of de-escalation training, there's often, if you look
at the curricula, there's often some element of empathy or, you know, using procedural justice to try to
relate to people or, you know, de-escalate situations. It is important and it is something that we can
work on and strive to do a little more, right? So for an officer, I would challenge them to think
about, you know, the last, you know, 10, 20 interactions they've had and ask themselves,
are there places, or go back and watch body-worn camera footage, are there places where you say,
I could have done better there? And just strive to be better. I would also argue that for leadership,
it's important. So we haven't talked about this yet, but it's also important for organizations,
for employees of organizations to feel like their superiors, their bosses,
are treating them fairly. So in the wake of, for example, the latest allegation about excessive
policing or police brutality or something like that, right? So an allegation gets made.
Chief has to get in front of the cameras, right? If we're still sorting through facts,
the employees of the agency are going to feel much more supportive. They're going to feel that
their chief is legitimate if he or she doesn't throw them under the bus and succumb to the political
pressure, right, to say something before all the facts come in, right? So, you know, much like we
as citizens value fairness when dealing with an officer, line-level officers value fairness when
dealing with organizational and administrative issues. So it's a challenging time to be a police
chief in this country right now, especially in major cities when we're right on the heels of
conversations about defunding and maybe even abolishing the police. So they've got a toe line
where, you know, they need to demonstrate trustworthy motives to their agency so that they don't lose
the troops, so to speak. But they're also balancing a dialogue with the community where people might
be outraged and want answers. So it's not a job that I'd want to have. I don't envy any of the major
city chiefs out there right now, right? Because they're balancing multiple, at times, dialogues that are
at odds with one another. No, no. This is good because we started with procedural justice. We
touched on organizational justice, which is what you're talking about right now, which is, that's
on my list of topics to have a conversation about down the line. We touched on hotspot policing. We
touched on, you know, legitimacy. So this was a great conversation, Justin. I do, I sincerely appreciate
your time, and I hope to have you back. Thanks, Scott. This was great. I enjoyed it. Thanks very much.
Have a great day. Take care. You too.
That's it for this episode of the Police in Service Training Podcast. I want to thank you,
the listener, for spending your valuable time here. If you like what you have heard,
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