1 Centering race in procedural justice theory: Systemic racism and the under-policing and over- policing of Black communities Jonathan Jackson, Department of Methodology, LSE, and University of Sydney Law School Tasseli McKay, RTI International and Duke University Leonidas Cheliotis, Department of Social Policy, LSE Ben Bradford, Department of Security and Crime Science, University College London Adam Fine, Arizona State University, School of Criminology and Criminal Justice Rick Trinkner, Arizona State University, School of Criminology and Criminal Justice Jonathan Jackson is Professor of Methodology at LSE and Honorary Professor at University of Sydney Law School Tasseli McKay is a NSF postdoctoral researcher at Duke University and a researcher in the Youth, Violence and Community Justice Program at RTI International Leonidas Cheliotis is Associate Professor at the LSE and Director of LSE’s Mannheim Centre for Criminology Ben Bradford is Professor of Global City Policing at UCL and Director of the Institute for Global City Policing Adam Fine is Assistant Professor at Arizona State University Rick Trinkner is Assistant Professor at Arizona State University and an Affiliated Scholar at Yale Law School’s Justice Collaboratory 2 Abstract Objectives. Bring people’s perceptions of systemic racism into procedural justice theory. Test an expanded model of police legitimacy that includes people’s perceptions of the under-policing and over- policing of Black communities. Methods. A cross-sectional survey based on a quota sample of 1,500 US residents designed to resemble the general population on the bases of race, gender, and age. Key measures are procedural justice, distributive justice, bounded authority, police legitimacy, perceptions of under-policing of Black communities, perceptions of over-policing of Black communities, and perceptions of systemic racism in the police. Structural equation modelling examines conditional correlations between latent constructs. Results. People’s perceptions of systemic under-policing and over-policing of Black communities are strongly associated with perceived police racism. Perceptions of under-policing and over-policing predict perceptions of the fairness and legitimacy of the police. These findings holds for both white and Black respondents. Conclusions. We provide ‘proof of concept’ in this particular approach to centering race in procedural justice theory. Findings also point to a pressing need to address the paradoxical law enforcement practices that have kept American police forces in service to structural racism and left Black communities both unprotected and over-regulated. Key words: Procedural justice; structural racism; police legitimacy 3 Introduction American law enforcement faces a crisis of legitimacy and public support (Gallup, 2021). Having long played a role in telegraphing the second-class citizenship of communities of color (Weaver & Lerman, 2010), police agencies are receiving fresh scrutiny after a new wave of deadly police violence against Black bodies. Mass protests against police and a shift in public opinion regarding structural racism raise questions about the popular legitimacy of police and the public’s willingness to fund policing (Evans et al., 2020; Horton, 2020; Whitfield et al., 2020). Following civil unrest in Ferguson, Missouri and elsewhere over the police killing of Michael Brown in 2014, the President’s Task Force on 21st Century Policing (2015) declared legitimacy as the first pillar of good policing. The report referenced a theory—procedural justice theory (PJT)—that has been widely applied to understand how police-community relations shape the public’s perceptions of police legitimacy (Tyler, Goff, et al., 2015). PJT offers a compelling and well-supported alternative to deterrence-based approaches to law enforcement that privilege coercive over consensual modes of policing. It stresses the role that acting in procedurally just ways plays in enhancing and maintaining legitimacy (Sunshine & Tyler, 2003; Tyler, 2006). Fair and respectful treatment and neutral and accountable decision-making by police signal to people that they are valued members of civil society (Bradford, 2014; Brouwer et al., 2018; Tyler, 1997; Justice & Meares, 2014). By extension, unfair decision-making (decisions that are subjective and biased) and interpersonal treatment (treatment that denies the value and dignity of the individual) communicates subordination and exclusion. Legitimacy is posited to motivate people to cooperate with law enforcement and comply with the law (Bolger and Walters 2019; Jackson, 2018; Walters and Bolger 2019). Overall, the theory predicts that an increasingly narrow reliance on violent force in policing is likely to follow if the public is unwilling to cooperate with police in achieving their goals, comply with their orders, and accept their decisions. The theory’s predictions have been supported in studies involving marginalized communities of color (Wolfe et al., 2016; Madon et al., 2017; Quinn et al., 2019). There is also evidence that the experience of being subjected to stop-and-frisk encounters and other types of aggressive pro-active policing among Black and Latino men can erode police legitimacy through a sense of procedural injustice and unjustified intrusion (Geller et al., 2014; Tyler et al., 2014). Yet, it is striking that no study has fully incorporated people’s perceptions of racist policing (or policing that reflects and exacerbates systemic racism in society) into the framework. Procedural justice is about the fairness of the methods used to achieve outcomes (Thibaut & Walker, 1975). Racism embedded in an unfair process (e.g. biased decision-making and disrespectful treatment) will, almost by definition, produce racially biased outcomes at the individual and aggregate level (e.g. disproportionate and aggressive contact). Still, no study has addressed whether community- level policing practices and patterns, such as the under-policing or over-policing of particular groups or neighbourhoods, reflect structural racism in the eyes of civilians and lead them to believe policing is biased and unjust – with all the potential implications noted above. PJT research is less ‘color-blind’ with regard to the measurement of distributive justice, but even here the issue is watered down. Distributive justice typically refers to the level of fairness or equality in the allocation of outcomes (Sunshine and Tyler, 2003); researchers within this literature occasionally reference race, although it is limited to measurement. For example, one of the five survey indicators in Sunshine & Tyler’s (2003) study mentioned race (“Minority residents of the city receive a lower quality of service from the NYPD than do whites”).1 One of the two distributive justice items in Wolfe et al. (2016) asked respondents whether they thought that the police in their neighborhood ‘‘give minorities less help because of their race.’’ Even in these studies, however, there is no direct reference to race in the overarching theoretical framework. No study, in short, has directly addressed whether procedurally unjust treatment and biased decision-making is experienced as or seen to be racially inflected, or asked people whether they believe police systematically under-police and/or over-police certain communities based on race. This is 1 See also Reisig et al. (2007: 1004), whose five measures of distributive fairness were: “Provide the same quality of service to all citizens”, “Enforce the law consistently when dealing with all people”, “Make sure citizens receive the outcomes they deserve under the law”, “Give minorities less help because of their race” and “Provide better services to wealthier citizens”. The issue here is that the sentiment about under-policing of minority communities could get slightly lost because the other four measures do not specify particular social groups and the theoretical framework is concerned with overall perceptions of the fair allocation of scarce resources, not in relation to specific racial groups. 4 surprising for a number of reasons. First, some policy makers and police leaders have drawn on PJT as a way of partially framing the problem of race in US policing and therefore, potentially, some way of framing reform (Gilbert et al., 2016; NIBCTJ, 2015; US Conference of Mayors, 2015). Second, researchers have documented a strong and consistent pattern of “disproportionate minority contacts” instigated by police, particularly with Black and Latino boys. Epp et al. (2014) arguing that investigatory stops convey powerful racial messages that violate rights and dignity. Studies have highlighted the systemic injustice implicit in racially targeted police contacts that are not explained by differences in individual behavior or neighborhood-level crime rates (Gase et al., 2016; Weaver et al., 2019). Third, qualitative work has suggested how, from the perspective of members of “race-class subjugated communities” (Soss & Weaver, 2017, p. 567), racism in policing is experienced not as a purely procedural concern nor simply a matter of excessive police contact. Rather, it is exemplified by a paradox of over-regulation and under-protection (or “distorted responsiveness”), with significant consequences for communities of color (Prowse et al., 2019, p. 1435; Rios, 2011, pp. 64–65). We seek in this paper to incorporate people’s perceptions of structural racism into PJT. We do this through the lens of perceptions of the over-policing and under-policing of Black communities