Straus Fellow

Academic Year 2010-2011

Jeffrey Fagan

Jeffrey Fagan

Jeffrey Fagan is a Professor of Law and Public Health at Columbia University, and Director of the Center for Crime, Community and Law at Columbia Law School. In 2009-10, he was a Visiting Professor of Law at Yale Law School. His research and scholarship focuses on crime, law and social policy. His current and recent research examines capital punishment, race and policing, legal socialization of adolescents, the jurisprudence of adolescent crime, and perceived legitimacy of the criminal law. He has served on the Committee on Law and Justice of the National Academy of Science, and the MacArthur Foundation's Research Network on Adolescent Development and Juvenile Justice. He has received fellowships from the Robert Wood Johnson Foundation and the Open Society Institute. He is past Editor of the Journal of Research in Crime and Delinquency, and serves on the editorial boards of several journals on criminology and law. He has served as Executive Counselor on the Boards of both the American Society of Criminology and the Crime, Law & Deviance Section of the American Sociological Association. He received the Bruce Stone Award from the Academy of Criminal Justice Sciences. He is a Fellow of the American Society of Criminology.

Research Project

Profiling and Consent

Problem Statement: The persistence and depth of racial disparities throughout the American criminal justice system has had profound social and political consequences.  The perception and reality of disparate treatment of African Americans and Latinos by police and the courts corrode beliefs in the legitimacy of the law and eviscerate trust that is essential to an effective justice regime that protects communities.  While these disparities are experienced most acutely among African Americans and Latinos, the complications ripple throughout all communities.  Disparate treatment breeds beliefs that justice is illusory and that the legal order is oppressive, beliefs that undermine incentives and obligations to cooperate with legal authorities. At the extremes, disparate and abusive treatment neutralizes moral obligations for compliance with the law; in recurring episodes over the past 40 years, disproportionate and abusive treatment has sparked civil disturbances.  Although some scholars justify racial disparities – especially in policing – as a search for efficiency by legal actors, most professionals reject these practices as simply bad law enforcement and poor justice whose perverse effects worsen police-community ties.

Social science researchers have sought to identify the sources of racial disparities.  Most explanations center on policing preferences that place minority communities under stricter surveillance, differentially exposing offenders from those communities to arrest and harsher legal sentencing structures that promote racial disparities in incarceration.  Racial profiling is one of the strongest engines of this dynamic.  Other explanations focus on the behavioral preferences of individual police officers, including both conscious and unconscious bias in their perceptions of suspicion and their decisions to act.  These preferences translate into selective enforcement, where racially differentiated perceptions and heuristics for responding to ambiguous situations translate into attributions of threat or criminal intent.  Still other frameworks focus on policing as a workplace, where the social frameworks of police officers cohere into unified memes that confer status on specific narratives and actions, while punishing alternative behavioral scripts or discourse.  New research has focused on the institutional dynamics of policing organizations that integrate these workplaces, situational and individual perceptions with structural features of organizations that maintain racialized norms.
Whatever the source, disparate and harsh treatment by the police toward minority citizens has animated litigation across the country, yet the payoffs of this lengthy and costly strategy to reduce disparities are uncertain.  The litigation efforts have sought to design a range of strategies to regulate institutional practices and to induce changes in the internal dynamics of everyday policing that would shift the preferences and behaviors of individual officers.  The current portfolio of litigation on racial profiling is now a decade old, yet its effectiveness has not yet been examined.  Somehow, the binary choices of litigation force compromises that undermine the remedial and regenerative possibilities of more fundamental architectural and strategic institutional reforms. For example, a gubernatorial committee in New Jersey overseeing compliance with the Soto consent decree found little evidence that racial profiling by the State Police has abated, despite new designs for recruitment, training, discipline and promotion of State Police.

Beyond litigation, creative local strategies have emerged from collaborations between citizens and legal actors to reduce disparities.  For example, San Diego’s unique police reforms created teams of citizens and police officers to review real-time crime data and jointly design localized strategies that rationally target crimes and not people. Collaborations like this engage police and other legal institutions with community groups to develop strategies that reshape policing regimes to promote effective and race-neutral community protection.  Accordingly, any assessment of litigation must take place side by side with an analysis of local experimentation and institutional efforts to change the racial ecology of policing.

At the same time, there is a new and exciting body of social science research that offers important new insights into the small scale processes – attributional biases, stereotyping – that are the animating dynamics of racial policing.  These dynamics are influential both institutionally in the formation of policy strategies and preferences, and individually in the on-the-ground practice of policing.  This new social science information offers new opportunities for local experimentation to influence both institutional responses and to shape the everyday police practices.

          The Race and Policing Study undertakes to connect knowledge across these three domains of activity to capture new concepts, strategies and paradigms for experimentation and normative change within institutions and the police profession.  It includes several components:

Connecting theory, practice, research and institutional experience. The project undertakes a conceptual mapping process to connect new social science knowledge and institutional analysis with these new reforms, with the goal of identifying strategies and paradigms to reduce disparities that will put new social science paradigms to work as part of the core of institutional change.  This work will include the formation of a panel of experts, bringing together committed individuals whose work on policing directly addresses the structures and institutional dynamics that contribute to racialized disparities.  Participants will bring together diverse communities to pool knowledge and integrate previously segregated perspectives: advocates, policing professionals, and litigators active in the practice of reform of police institutions, researchers with knowledge of the complex dynamics within policing that produce and sustain disparities, and people from citizen groups active in efforts to introduce new models of police-citizen interactions to produce structural and strategic reform.  This group will help plan the analytic and constructive phases of the project, as well as in designing communication strategies in the later stages.

An analysis of litigation efforts and their results.   The research component will be a series of case studies on the outcomes and lessons of current litigation to ameliorate racial profiling and racialized policing.  Analysts connected to the project will catalogue the array of current and recent consent decrees and other settlements that attempted to induce changes in police practice and citizen interactions.  Available evidence on each locale will be massed and analyzed from a variety of resources.  Specific places will be selected for intensive case studies on the natural histories and institutional dynamics within and around each local policing agency, and lessons identified through comparative analyses of each case study. 

New paradigms of institutional reform in policing. The project will identify local change dynamics where reforms have incorporated local networks and organizations who have been effective in developing new regulatory regimes and sustaining them over time.  The expert panel will review and further analyze the case studies to develop new models and paradigms for institutional reform.  A series of working papers on these analyses will chart directions in three areas: new strategies to structure litigation to ensure that new coalitions of legal and community actors can effectively influence policing, new social science research that can focus both on institutional dynamics and individual behaviors, and new forms of institutional and community collaborations that can sustain and promote change beyond the boundaries of initial litigation efforts.