LEGITIMACY AND CRIMINAL JUSTICE LEGITIMACY AND CRIMINAL JUSTICE International Perspectives Tom R. Tyler editor Russell Sage Foundation New York The Russell Sage Foundation The Russell Sage Foundation, one of the oldest of America’s general purpose foundations, was established in 1907 by Mrs. Margaret Olivia Sage for “the improvement of social and living conditions in the United States.” The Foundation seeks to fulfill this mandate by fostering the development and dissemination of knowledge about the country’s political, social, and economic problems. While the Foundation endeav- ors to assure the accuracy and objectivity of each book it publishes, the conclusions and interpretations in Russell Sage Foundation publications are those of the authors and not of the Foundation, its Trustees, or its staff. Publication by Russell Sage, therefore, does not imply Foundation endorsement. BOARD OF TRUSTEES Thomas D. Cook, Chair Kenneth D. Brody Jennifer L. Hochschild Cora B. Marrett Robert E. Denham Kathleen Hall Jamieson Richard H. Thaler Christopher Edley Jr. Melvin J. Konner Eric Wanner John A. Ferejohn Alan B. Krueger Mary C. Waters Larry V. Hedges Library of Congress Cataloging-in-Publication Data Legitimacy and criminal justice : international perspectives / edited by Tom R. Tyler. p. cm. Includes bibliographical references and index. ISBN 978-0-87154-876-4 (alk. paper) 1. Criminal justice, Administration of. 2. Social policy. 3. Law enforcement. I. Tyler, Tom R. HV7419.L45 2008 364—dc22 2007010929 Copyright © 2007 by Russell Sage Foundation. All rights reserved. Printed in the United States of Amer- ica. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the publisher. Reproduction by the United States Government in whole or in part is permitted for any purpose. The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials. ANSI Z39.48-1992. Text design by Suzanne Nichols. RUSSELL SAGE FOUNDATION 112 East 64th Street, New York, New York 10021 10987654321 TABLE OF CONTENTS About the Authors ix PART I INTRODUCTION 1 Chapter 1 Preface 3 Michael Tonry Chapter 2 Legitimacy and Criminal Justice: International Perspectives 9 Tom R. Tyler, Anthony Braga, Jeffrey Fagan, Tracey Meares, Robert Sampson, and Chris Winship Chapter 3 The Foundations of Legitimacy 30 David J. Smith PART II THE ROLE OF LEGITIMACY IN POLICING 59 Chapter 4 Introduction 61 Chapter 5 Policing, New Public Management, and Legitimacy in Britain 63 Mike Hough Chapter 6 Rebuilding Legitimacy and Police Professionalism in an Emerging Democracy: The Slovenian Experience 84 Gorazd Mesˇko and Goran Klemencˇicˇ vi Table of Contents Chapter 7 Police Legitimacy in Chile 115 Hugo Frühling Chapter 8 Building Legitimacy Through Restorative Justice 146 John Braithwaite PART III FORMAL AND COMMUNITY-BASED ROUTES TO LEGITIMACY 163 Chapter 9 Introduction 165 Chapter 10 When the Poor Police Themselves: Public Insecurity and Extralegal Criminal-Justice Administration in Mexico 167 Jennifer L. Johnson Chapter 11 Between Damage Reduction and Community Policing: The Case of Pavão-Pavãozinho- Cantagalo in Rio de Janeiro’s Favelas 186 Graziella Moraes D. da Silva and Ignacio Cano Chapter 12 Popular Justice in the New South Africa: Policing the Boundaries of Freedom 215 John Comaroff and Jean Comaroff PART IV LEGITIMACY AND MINORITY-GROUP RELATIONS 239 Chapter 13 Introduction 241 Chapter 14 Police, Justice, and Youth Violence in France 243 Sophie Body-Gendrot Chapter 15 Ethnic Minorities and Confidence in the Dutch Criminal-Justice System 277 Catrien Bijleveld, Heike Goudriaan, and Marijke Malsch Table of Contents vii Chapter 16 Legitimacy and Criminal Justice: Inequality and Discrimination in the German Criminal-Justice System 302 Hans-Jörg Albrecht Chapter 17 Minorities, Fairness, and the Legitimacy of the Criminal-Justice System in France 333 Sebastian Roché Index 381 ABOUT THE AUTHORS TOM R. TYLER is University Professor at New York University, where he teaches in the psychology department and the law school. HANS-JÖRG ALBRECHT is director at the Max Planck Institute for Foreign and Inter- national Criminal Law in Freiburg, Germany. CATRIEN BIJLEVELD is senior researcher at the Netherlands Institute for the Study of Crime and Law Enforcement (NSCR) and a professor in criminology at the Free University, Amsterdam. SOPHIE BODY-GENDROT is a University Professor at Sorbonne-Paris IV and the Director of the Center of Urban Studies. ANTHONY BRAGA is a senior research associate at the Kennedy School of Govern- ment, Harvard University, and at the Berkeley Center for Criminal Justice at the University of California, Berkeley. JOHN BRAITHWAITE is an Australian Research Council Federation Fellow in the Reg- ulatory Institutions Network (RegNet), College of Asia and the Pacific, Australian National University. IGNACIO CANO is Professor of Research Methodology at the State University of Rio de Janeiro. JEAN COMAROFF is Bernard E. and Ellen C. Sunny Distinguished Service Professor of Anthropology at the University of Chicago and director of the Chicago Center for Contemporary Theory. JOHN COMAROFF is the Harold H. Swift Distinguished Professor of Anthropology at the University of Chicago and a Senior Research Fellow at the American Bar Foundation. x About the Authors JEFFREY FAGAN is professor of law and public health at Columbia University, and director of the Center for Crime, Community and Law at Columbia Law School. HUGO FRÜHLING is a professor and director of the Center for the Study of Public Safety at the Institute of Public Affairs of the University of Chile. HEIKE GOUDRIAAN is assistant professor at the Faculty of Law, Department of Crim- inal Law and Criminology of Leiden University, The Netherlands. MIKE HOUGH is professor of criminal policy at the School of Law, King’s College London and the director of the Institute for Criminal Policy Research. JENNIFER L. JOHNSON is assistant professor of sociology at Kenyon College. GORAN KLEMENCˇICˇ is a senior lecturer in criminal law and police powers at the Faculty of Criminal Justice, University of Maribor, Slovenia. MARIJKE MALSCH is a senior researcher at the Netherlands Institute for the Study of Crime and Law Enforcement (NSCR) in Leiden, the Netherlands. TRACEY MEARES is professor of law at Yale Law School. GORAZD MESˇKO is an associate professor of criminology and dean at the Faculty of Criminal Justice, University of Maribor, Slovenia, an honorary visiting fellow at the Department of Criminology, University of Leicester, UK, and president of the Slovenian Association of Criminal Law and Criminology. GRAZIELLA MORAES D. DA SILVA is currently a Ph.D. candidate at Harvard University. SEBASTIAN ROCHÉ is a professor of political science, senior research fellow at the CNRS (National Center for Scientific Research) and at the Institute of Political Science, University of Grenoble, France, and also teaches at the National Academy of Police Commissioners (ENSP) in Lyon. ROBERT SAMPSON is Henry Ford II Professor of the Social Sciences at Harvard University. DAVID J. SMITH is Honorary Professor of Criminology at the University of Edinburgh, Scotland, co-director of the Edinburgh Study of Youth Transitions and Crime, and visiting professor at the London School of Economics. About the Authors xi MICHAEL TONRY is Sonosky Professor of Law and Public Policy, University of Minnesota, and senior fellow, Netherlands Institute for the Study of Crime and Law Enforcement, Leiden. CHRIS WINSHIP is Diker-Tishman Professor of Sociology at Harvard University and also a member of the faculty of the Kennedy School of Government. PART I Introduction CHAPTER 1 Preface Michael Tonry This volume derives from an exploratory conference whose participants sought to learn about differences between the United States and other Western countries in how and what scholars, practitioners, offenders, and the general public think about legitimacy in the criminal-justice system. The papers initially commissioned for the conference dealt with European countries but were augmented by papers on a number of Latin American countries, South Africa, and Slovenia. This speculative venture has had a valuable payoff. We have learned that system- atic scholarly interest on legitimacy is mostly American; that not much systematic research or theory building has occurred elsewhere; that problems of legitimacy are important everywhere; and that a number of plausible, testable hypotheses can be formulated that can guide future inquiry. Put differently, the comparative and cross- national study of legitimacy is an important, policy-relevant subject in need of a research community to do the work. The papers are centrally concerned with two questions: whether structural dif- ferences between countries’ legal systems generate different levels of perceived legit- imacy in the eyes of citizens generally and those accused of crimes particularly, and whether the views of majority and minority groups differ substantially. Neither question can be answered with much confidence. There are no compar- ative or cross-national literatures. The best that can be done is to commission papers on individual countries and through them try to look across national boundaries. The scholarly literatures on procedural justice and legitimacy are distinctly