Procedural Justice and Police Legitimacy

Procedural justice is a concept that touches on virtually all aspects of public policy. It speaks to the fundamental fairness of civil processes irrespective of race, color, creed, ethnicity, sex, nation of origin, economic status, or any other personal trait.

In modern policing, the appearance of fairness is every bit as important as the actual fairness of the outcomes of officers’ work. Highly publicized incidents implicating racism or bias by officers have a corrosive effect on the public perception of law enforcement legitimacy. Police administrators and trainers must remain acutely aware that a loss of legitimacy, whether justified or not, severely undermines police effectiveness. Additionally, policy and training efforts must be sensitive to this phenomenon and take active measures to address the issues that can affect legitimacy.

According to the 2015 report by the President’s Task Force on 21st Century Policing:

As our nation becomes more pluralistic and the scope of law enforcement’s responsibilities expands, the need for more and better training has become critical. Today’s line officers and leaders must meet a wide variety of challenges including international terrorism, evolving technologies, rising immigration, changing laws, new cultural mores, and a growing mental health crisis. All states and the District of Columbia should establish standards for hiring, training, and education.²

There can be little doubt that the work of law enforcement and other public safety professionals is more complex than it has ever been. As the job grows increasingly complex, law enforcement trainers and educators must grow and expand their programs to ensure the continual evolution in delivery of the knowledge, skills, and abilities required to meet public safety needs. These advancements must consider the changing demographics of communities, which includes attention to a growing immigrant population; the disenfranchisement of people of color; and an increase in poverty across all racial, ethnic, and religious populations.

Training Police Officers in the 21st Century and the Costs of Inadequate Training

Police Officer Standards and Training (POST) agencies throughout the United States administer training programs that are remarkably similar in core content.³ However, recent Department of Justice (DOJ) investigations of law enforcement agencies have found that in-service training varies widely by agency in quantity and quality. The absence of high-quality in-service training addressing racial and immigration issues can have a significant, negative impact on the performance of a public safety agency.

It is vital that police academy and in-service training foster an understanding of police legitimacy and how to improve it. In addition to the core concepts currently taught, police administrators and trainers must devise training modalities that allow trainees to execute the critical decisions that accompany day-to-day interactions on the street.⁴

The President’s Task Force on 21st Century Policing recognized the need for scenario-based training to better manage interactions and minimize the use of force.⁵ This conclusion is supported by the findings of a number of DOJ investigations of local police departments. The Police Executive Research Forum identified the issues most likely to result in a DOJ investigation:⁶

n Police use of force
n Early intervention systems
n Management and supervision of officers
n Racial bias in policing
n Gender bias in policing
n Interactions with persons with mental illness

According to Bureau of Justice Statistics (BJS) data, there are currently almost 18,000 state and local law enforcement agencies in the United States. Of these agencies, about half (49 percent) employ fewer than 10 full-time officers.⁷ Not unexpectedly, these smaller agencies commonly find themselves severely limited in the resources available for quality in-service training.

One of the most commonly cited reasons for substandard in-service training for public safety agencies is cost, which multiplies quickly when overtime and backfilling requirements are considered. Even in consideration of the factors described above, many agencies find it difficult to pay for advanced, reality-based training designed to address emerging trends and challenges. One small-town retired chief, writing in Police Chief, described it this way:

Police chiefs across the United States and around the world are confronted with meeting department budget challenges while still ensuring officer safety and the ability to provide professional law enforcement services. A police chief’s budget is like a leaky bucket: despite the best fiscal controls, money still leaks from numerous causes beyond the chief’s best control efforts, through court subpoenas, training, officers’ shifts extended because of call volume or the necessity to complete reports, specialized responses to incidents such as major crimes or special operations callouts, and special community events.⁸

In 2010, the Police Executive Research Forum conducted a survey of 608 police departments regarding the impact of budget cuts. Sixty-eight percent of respondents cited budget cutbacks as the reason for reduced or discontinued training at their agency. Training is often one of the first items to be cut when budgets are reduced⁹—this is true even in the face of acknowledgement that increased officer training is vital.

In the context of law enforcement training and bad outcomes, increasing attention is being paid to the enormous costs of litigation connected to officer misconduct. According to research by the Wall Street Journal, the 10 largest U.S. cities paid more than $248 million dollars to settle claims against police in 2014. Between 2010 and 2015, lawsuits of this nature cost those cities in excess of $1.4 billion.¹⁰

If it is accepted that better decision-making is a predominate factor leading to better outcomes in racially charged police encounters, then it is clear that law enforcement needs to find a way to effectively train officers to make better decisions.

Decision-Based Training to Prepare Police Officers

Is there a way to train officers facing complex and dangerous tasks to make better decisions? A system of decision-based training that incorporates the complexities of interracial and immigrant-related sensitivities might provide the tools required to fulfill this vital public safety training need.

In one of his books on decision-making, author Gary Klein describes the key elements involved in making choices under difficult circumstances:

[M]aking decisions, making sense of events, and adapting…are related to each other, but they create different demands on us. Making decisions, choosing what to do, is the most direct and visible challenge. Yet the choices we make depend upon how we size up the situation. Adapting to events builds on the way we understand those events and reflects our decisions and our ability to learn. These three cognitive functions appear over and over in many kinds of human activities.¹¹

Law enforcement officers make critical decisions every day of their working lives that are frequently matters of life or death for members of public and officers. In addition to the physical hazards that accompany law enforcement work, officers and police agencies increasingly face the likelihood of civil and criminal legal exposure with less-than-ideal outcomes.

The goal of traditional police training is skill acquisition and retention of learned material.¹² The training focuses on a wide range of knowledge, skills, and abilities intended to provide officers with the tools they need to safely succeed. However, most law enforcement training programs spend little if any time teaching and practicing critical decision-making skills under stress or in circumstances complicated by racial, cultural, or nation of origin differences.

Unanticipated encounters place a responder in a momentary position of disadvantage. This disadvantage, under unanticipated or uncontrolled conditions, may lead the responding officer to react in unlawful ways or in ways counter to agency policies. They are reacting, not thinking. This disconnect occurs because intense startlement or shock disrupts the part of the brain that analyzes, thinks, and decides. It is how the untrained human brain reacts to the perception of an imminent threat.¹³ Without proper training and rehearsal, officers working in these conditions are very likely to ignore racial or cultural sensitivities by tightly focusing on the mission objective in front of them, rather than the wider implications of their choices.

Writing in Police Chief, psychologist Lawrence Blum and Police Chief Joe Polisar identify three principles that form the foundation for an effective stress-exposure training program:

n Officers must develop a working knowledge of, and familiarity with, the reactions of their brains and bodies under stress-exposure conditions. The researchers stress that this cannot be achieved under classroom conditions or in predictable scenario-based training.
n Officers must be taught to control and mediate their reactions to stressful events in real time.
n Officers who do not have a great deal of rehearsal experience in police work must build self-confidence.¹⁴

Foundations of Decision-Based Training

In order to understand how training can effectively improve officers’ decision-making skills, it is essential to have a basic understanding of how people make decisions.

Naturalistic decision-making (NDM) is a framework for studying the way people make decisions. In formulating this method of study, researchers learned that people make decisions in ways counter to the accepted norms of the day. Rather than relying on previously formulated strategies in forming judgments, people generally relied on their personal experiences—things they learned for themselves—in reaching their decision.¹⁵

In examining the performance of people in field settings (e.g., Navy commanders, jurors, nuclear power plant operators, Army small unit leaders, and airline pilots), researchers changed their ideas about decision-making. It became clear that the decision-making processes involved people drawing upon prior perceptions and recognition of situations—not just making a choice from a list of options available at the time the decision was required.¹⁶

The recognition-primed decision (RPD) model then grew out of the NDM theory. The RPD model holds that when people need to make a decision, they can quickly match the situations to patterns they’ve learned in the past. If their minds create an appropriate match, they can accomplish an effective course of action. This is how people can still make good decisions even when they don’t know all the options available to them in a given situation. The RPD model is a blend of intuition and analysis.¹⁷

The RPD model teaches that people combine two ways of arriving at a decision:

1. Recognizing a course of action that makes sense, and
2. Imagining the course of action in the circumstances at hand to see if the results will make sense.

Experiments with the RPD model demonstrated that experienced people have a huge advantage over the inexperienced in decision-making situations. Experienced people can match the situation to something that they’ve seen before and take action. Inexperienced people must cycle through available options (often through a process of trial and error) to reach a decision. In critical situations when time is of the essence, this delay in action can lead to tragic outcomes.

In describing optimal training modalities for law enforcement personnel, author Kenneth Murray observes:

It goes by many names, but the premise of the training remains the same. Place a student into a setting that simulates a real-life encounter in order to test his ability to respond to that incident while acting within departmental policy and the law. Sounds easy. It’s not. If it is to be done properly, the training must be a highly structured, carefully designed situation with predictable outcomes and tightly structured roles and responsibilities for the training staff.¹⁸

In a 2003 DOJ Community Relations Service (CRS) study entitled Principles of Good Policing: Avoiding Violence Between Police and Citizens, the DOJ-CRS identified nine areas of special concern based upon empirical research, in order to emphasize areas of police-community interactions that most commonly result in friction.¹⁹

Use of Deadly Force: Officers with conflict resolution and persuasion skills might be better at finding methods for de-escalation and avoiding high levels of confrontation; a high standard of ongoing specialized training is essential in minimizing the risks.

Arrest Situations: More officers’ lives are lost in arrest situations than in any other on-duty circumstances. In an FBI study on 1992–2001 data, it was found that over 34 percent of officers slain were involved in arrest situations; volatile arrest situations are often a flashpoint for clashes between the minority community and police.

Responding to Disturbance Calls: Officers are frequently called upon to intervene in disagreements between two parties (with an emphasis on domestic violence), knowing little about the conflict and having minimal authority to correct underlying issues. It’s not unusual for both parties involved in the disagreement to direct their wrath at officers; thus, training must focus on officers’ demeanors, attitudes, and skills in controlling enraged participants.

Traffic Stops and Pursuits: Procedural mistakes and complacency can result in an officer being assaulted or using force to resolve a problem that could have been avoided; emotions run high in many encounters due to the potential dangers involved.

Investigating Suspicious Persons: Problems arise in the inability to clearly define and articulate what “suspicious” means—the perception of harassment may result in confrontation, and police training often fails to prepare officers to deal with the ambiguities involved.

Handling, Custody, and Transportation of Prisoners: The handling of prisoners results in higher levels of assault than one might expect; significant numbers of altercations occur where bookings take place.

Handling People with Mental Impairment: Police must develop better approaches for dealing with persons with mental health issues and learn better channels of communication to prevent escalation and violence.

Hostage/Barricade Situations: Medium and large police agencies have developed special teams to cope with these events. A special degree of skill and experience is required to resolve these situations without violence and often using force serves only to escalate the problem and might inflame community sentiments—especially if a minority individual or group is involved.

Drugs and Gangs: The proliferation of gangs and their increased firepower creates divisions within communities, escalating homicide rates, and increasing demands for more aggressive policing. Specialized training is required for investigations, making arrests, and gaining community support, among other issues.

It is evident how these areas of concern intersect between law enforcement mission priorities and daily life in economically disadvantaged, immigrant, and minority neighborhoods. Training efforts must focus on ensuring the safety of all concerned, maintaining law and order, and delivering services and justice equally.

Conclusion

By providing officers and other public safety professionals specialized training in making better decisions, favorable impacts can be efficiently and economically achieved. It is vital to supplement traditional law enforcement skills-based training with advanced concepts in critical decision-making. Traditional training must be combined with a thorough understanding of the role of procedural justice, along with instruction on the impact of perceptions of inequality on police legitimacy and effectiveness.

A blended modality of computer-based, instructor-led, and immersive scenario experiences can be delivered to achieve this important training goal with minimal budget impacts. However, a robust system of policy, procedures, and properly crafted specialized curricula is required to meet this vital training need.d

Notes:

¹ Mark Berman, Wesley Lowery, and Kimberly Kindy, “South Carolina Police Officer Charged with Murder after Shooting Man during Traffic Stop,” Washington Post, April 7, 2015.

² President’s Task Force on 21st Century Policing, Final Report of the President’s Task Force on 21st Century Policing (Washington, DC: Office of Community Oriented Policing Services, 2015), 51.

³ President’s Task Force on 21st Century Policing, Final Report of the President’s Task Force on 21st Century Policing.

⁴President’s Task Force on 21st Century Policing, Final Report of the President’s Task Force on 21st Century Policing.

⁵ President’s Task Force on 21st Century Policing, Final Report of the President’s Task Force on 21st Century Policing.

⁶ Police Executive Research Forum, Civil Rights Investigations of Local Police: Lessons Learned, Critical Issues in Policing Series (Washington, DC: Police Executive Research Forum, 2013).

⁷ Brian A. Reaves, “Census of State and Law Enforcement Agencies, 2008,” Bulletin, July 2011.

⁸ Ed Williams, Michael Crowe, and Bill Lowe, “Budget and Staffing Shortages: Consider the Benefits and Cost Savings of Part-Time, Paid, Reserve Police Officers,” Police Chief (January 2012): 44–45.

⁹ Police Executive Research Forum, Is the Economic Downturn Fundamentally Changing How We Police? Critical Issues in Policing (Washington, DC: Police Executive Research Forum, 2010).

¹⁰ Zusha Elinson and Dan Frosch, “Cost of Police-Misconduct Cases Soars in Big U.S. Cities,” Wall Street Journal, July 15, 2015.

¹¹ Gary A. Klein, Streetlights and Shadows: Searching for the Keys to Adaptive Decision Making (Cambridge, MA: MIT Press, 2009), 6.

¹² U.S. Department of Justice, Principles of Good Policing: Avoiding Violence Between Police and Citizens (Washington, DC: Department of Justice Community Relations Services, 2003).

¹³ Gary A. Klein, “Naturalistic Decision Making,” Human Factors: The Journal of the Human Factors and Ergonomics Society 50, no. 3 (2008): 456–460.

¹⁴ Lawrence N. Blum and Joseph M. Polisar, “Why Things Go Wrong in Police Work,” Police Chief (July 2004).

¹⁵ Klein, “Naturalistic Decision Making.”

¹⁶ Klein, “Naturalistic Decision Making.”

¹⁷ Klein, Streetlights and Shadows.

¹⁸ Kenneth R. Murray, Training at the Speed of Life Volume 1: The Definitive Textbook for Police and Military Reality-Based Training (Gotha, FL: Armiger Publications, 2004), 193.

¹⁹ U.S. Department of Justice, Principles of Good Policing.

Please cite as

Joseph T. Wolf and Kathryn Tucker, “Improved Outcomes in Racially Charged Police Encounters: Making the Case for Decision-based Training,” Police Chief 85, no. 11 (2018): 48–53.