Misconduct Allegations: Procedural vs. Distributional Justice
By Mark Carignan, M.P.A.
On occasion law enforcement agencies experience allegations of police misconduct. Administrators must deal with these contentions in a manner that satisfies many different interests. These often conflict, further complicating police commanders’ duties.
Senior police leaders must develop complaint processing systems and policies that allow for effective employee management. Detection and investigation of alleged misconduct must consider public approval while not violating labor laws and collective bargaining agreements.
Citizen satisfaction—fulfilling their needs or wants—means many things. This simple description does not define what members of the public expect when they make complaints of police misconduct.
A study of complaints filed against one city’s police officers showed that the complaining citizens wanted a variety of results. Of those grievances, 20 percent sought serious consequences, such as the termination or lengthy suspension of the officer. The remaining 80 percent expected retraining or light punishment. Twenty percent of that subset wanted to report the incident and have their complaint heard regardless of the outcome.1
“Satisfaction” is a subjective term with different meanings for citizens in varied circumstances. The way agencies handle complaints affects public approval more than the results.
For decades, social science has explored and accepted the concept of procedural justice. This asserts that the process through which an event occurs plays a significant role in the participants’ perceptions of fairness regarding the result.2 How something happens is as important as what takes place. The event could be the establishment of procedure, negotiation of a financial agreement, or settling of a dispute.
Studies have shown that procedural justice regarding dispute handling crosses several aspects of everyday life, such as interpersonal relationships, commercial interactions, citizen-government contacts, and traditional community-police encounters. Procedural justice applies to resolution of complaints of police misconduct. This concept aids in designing policies and procedures that result in higher levels of citizen satisfaction.
Sergeant Mark Carignan serves with the Brattleboro, Vermont, Police Department.
Consumers have specific expectations that sometimes go unmet. Service providers often settle grievances with monetary or product-based solutions. This outcome-focused resolution is an example of distributional justice. Some commercial interactions do not work with this type of result-oriented justice. In these circumstances, the influence of procedural justice becomes apparent.
In a 2008 study, researchers found that individuals who participated in forming policies had lower levels of dissatisfaction with negative decisions than those who were not involved.3 Research indicated a reduction in unrealistic expectations when individuals knew that other persons participated in the process. For example, sports enthusiasts who were aware that other fans participated in developing a seat assignment policy had fewer impractical perceptions that certain spectators would get the best seats, whether or not they participated in the process.4
In addition to providing an example of procedural justice, this study indicated that reducing dissatisfaction in conflict resolution is as important as increasing satisfaction. This may pertain to encounters with police officers involving citizen complaints of misconduct.
With conflict resolution, the American criminal justice system focuses on distributional justice. People break laws, officers arrest suspects, and the court systems dispense justice. Studies have indicated that satisfaction among participants in this system is distinct. According to the research, procedural justice plays a significant role.
A 3-month study of crime victims found that police officer treatment of citizens was more relevant to their gratification than solving their cases.5 It included five points to measure satisfaction: 1) overall approval; 2) courtesy and politeness; 3) speed of response; 4) level of concern; and 5) helpfulness. The research indicated that officer courtesy, concern, and kindness directly and positively influenced fulfillment levels, even though they had nothing to do with the outcome. These reflect procedural justice.
Treatment of these citizens—procedural justice—compares with the successful resolution of the crime—distributional justice. In 2002 the average clearance rate, an outcome-based measure of satisfaction, for property crimes in the United States was 17 percent.6 This indicated a low success rate; however, the study found that 81 percent of respondents rated their overall approval to be 8 on a 10-point ordinal scale.7 This showed that the treatment of complainants influenced their satisfaction more than the complaint results.
Researchers interviewed 184 citizens to obtain opinions regarding interactions with police officers. Responses fell into one of two categories; the first was a person calling the police to resolve a dispute, and the other involved an officer detaining an individual for a minor motor vehicle violation. The study entailed the outcome of the encounters and the fairness with which the police officer treated the individual.
The results indicated that members of the public cared more about their treatment by police than the outcome of the situation. According to this study, respondents who perceived fair handling gave more positive evaluations than those who alleged unjust treatment, whether the officer solved the problem or cited the person.8 This study has broader implications because individuals who experienced self-perceived fairness had a positive opinion of police services overall, not just in the particular interaction.
There was a strong correlation between perceived fairness and overall satisfaction during traffic enforcement, regardless of ticketing. Citizens who indicated fair treatment by officers and received tickets reported higher levels of satisfaction than those who felt poorly regarded but only got warnings.9
Until the 1960s agencies often dismissed allegations of police officer misconduct by reassigning officers or threatening complainants with retribution.10 Today commanders recognize the need to investigate to maintain the integrity of their agencies and ensure public trust.
The oldest, most common, structured complaint processing system is internal affairs.11 Conducted by law enforcement employees, inquiries are similar to traditional investigations with witnesses’ interviews, document and evidence reviews, and subject examination. The investigating officer prepares a report and forwards it up the chain of command with each higher-level supervisor commenting and making recommendations.
Upon receiving reports and proposals, command-level decision makers accept or refer them back down the chain of command for further investigation or review. Once accepted, management usually assigns one of six dispositions to it.
“It is a requirement for law enforcement agencies to provide citizens with an opportunity to express their dissatisfaction with a police officer’s conduct.”
First, a sustained complaint is one in which the allegations are found to be true. The second disposition is an unfounded complaint where substantial credible evidence exists indicating that the alleged misconduct did not take place. In the third, exoneration, the officer acted as alleged; however, law, procedure, and circumstances authorized the actions. In the fourth, the complaint receives a classification of not sustained if there is insufficient evidence to support or refute the allegation. Two conclusions that occur less frequently are ending an investigation for exceptional reasons, such as an officer resigning prior to its completion or authorities determining that a police officer is responsible for conduct that is not part of the original complaint.
Internal affairs reports investigation results after establishing a final determination. Complainants get a letter, while subject officers receive official notification and possible counseling, training, or discipline as required.
Similar to a criminal investigation, an internal inquiry is a process through which a third party determines facts and makes a decision. Dispute resolution systems that follow an inquisitional model create low satisfaction levels for those involved.12 Participants surrender process control—the handling of the dispute—and decision control—the outcome. This loss of power results in a decline in satisfaction for the complainant.
Civilian Review Board
A civilian review board (CRB) is a group staffed by civilians that investigates officer misconduct allegations. Their roles vary and may include complaint intake, investigation, advising, or decision making.
At one time CRBs were the best solution for citizen dissatisfaction with the internal affairs system. Advocates thought CRBs increased public satisfaction, perceived legitimacy of investigations, and the number of sustained complaints. They asserted that exposing the internal process to public scrutiny improved investigation quality and complaint support. This supposedly resulted in discipline and training that lowered levels of misconduct.13 Research and experience indicate that this is not the case.
The rate of sustained complaints under CRBs is statistically lower than that of a traditional internal affairs function.14 They usually reach the same conclusions as internal affairs’ investigations. Discipline recommendations from CRBs prove more lenient than those imposed by department leaders.15
CRBs are unsuccessful in increasing public satisfaction. They improve the perception of transparency, but weaken the control of officer misconduct or enhanced complainant gratification.
CRBs aim to unveil the secrecy of internal investigations, not to increase complainants’ fulfillment. The purpose of these systems is to improve transparency and public faith in the process. Raising citizen satisfaction is a secondary goal that does not focus on the method of accomplishment.
“Today commanders recognize the need to investigate to maintain the integrity of their agencies.”
Used in divorce settlements, lawsuits, and labor disagreements, mediation has become popular in the United States. It focuses on a face-to-face meeting between disputants, facilitated by a professional intermediary, with the goal of sharing information and views. The purpose is to increase mutual understanding and reach a voluntary agreement.16 It concentrates on process, with little regard for outcome while the basis is procedural, not distributional fairness.
A 1996 study of alleged police misconduct in Australia found that 35 percent of complainants were satisfied when using mediation. Researchers indicated that 16 percent felt that way with complaints handled in a more traditional manner.17
A similar study in the United Kingdom found comparable results with 30 percent of individuals indicating satisfaction with their mediation experience. None of the people with fully investigated complaints rated their experience that way.18
Mediation is not always an appropriate means to process allegations of police misconduct. This method is unacceptable for use-of-force complaints. An analysis of these matters is important, but goes beyond the scope of this article.
Procedural justice principles apply to a wide range of circumstances. The author examined studies, took the broad implications of procedural justice, and pointed them toward citizen allegations of police misconduct.
People are satisfied with systems they consider fair. They believe it is just if they are involved in its design or execution. Studies indicated that this occurs even when they do not achieve the desired outcome.
Police administrators should develop complaint-processing systems that increase complainants’ self-perceived involvement while preserving the agency’s ability to manage, investigate, and discipline its employees. The most efficient way to achieve this is to construct a hybrid system that embraces the strengths of existing ones while avoiding their weaknesses.
It is important for departments to include complainants in the process prior to the filing of complaints. Involving the public through consultation with community administrators, neighborhood groups, and religious leaders is essential during the design phase. Considering their experiences and opinions is important. However, police administrators must maintain control and make final design and procedural decisions.
It is necessary to provide complainants with a detailed description of the process through which their complaint will travel. With input from the accuser, law enforcement agencies classify grievances to determine the appropriate path. Final decisions regarding the classifications of complaints (e.g., minor, major, criminal) must remain with the commander.
“Police administrators should develop complaint-processing systems that increase complainants’ self-perceived involvement while preserving the agency’s ability to manage, investigate, and discipline its employees.”
There are numerous processes for handling complaints. Mediation is appropriate for a misunderstanding of an officer’s actions or intent. Serious allegations, such as an abuse of force, require a formal investigation. It is important that the agency inform the complainant of the system used, the reason chosen, and the process required.
Departments provide complainants with a detailed description of the results informing them of the outcome, investigative procedures, and factors that led to the conclusion. Law enforcement agencies must accomplish this while protecting their employees’ rights to confidentiality regarding their employment status, discipline, and training.
Any policy implementation or change requires an ongoing evaluation of its impact. To accomplish this task, after they process the allegations, organizations survey complainants focusing on their satisfaction and faith in the agency’s complaint processing ability. It is important to consider police officer concerns when conducting policy studies and evaluations.
It is a requirement for law enforcement agencies to provide citizens with an opportunity to express their dissatisfaction with a police officer’s conduct. Departments must strive for the public’s satisfaction while maintaining control of employees, protecting their rights, and accomplishing law enforcement functions. A policy for processing citizen complaints must meet all of these needs.
“Departments must strive for the public’s satisfaction while maintaining control of employees, protecting their rights, and accomplishing law enforcement functions.”