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Legal Estrangement, Procedural Injustice and Crime

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Anika Gray
Anika Gray, Former UWI Lecturer
Why Tough-On-Crime Laws and Policies Continue to Miss the Mark

“Police kill 7 in Portmore” ” 
“76 killed by security forces in Tivoli”  
“Police death squads uncovered” 

These headlines tell the story of state violence, sanctioned as a legitimate crime fighting tool. The Commonwealth Caribbean experiences high levels of citizen insecurity due to a steady increase in violent crimes . The murder rates in the region are higher than for any other region of the world . Majority of the violent crimes and their perpetrators are concentrated in low-income communities, which sit on the margins of society . The governments in these countries, including Jamaica, have largely relied on violence or ‘being tough’ to fight crime. Yet this method of crime fighting has yielded little result – violent crimes continue to rise. Why is this? 

To understand why crime flourishes in marginalised low-income communities, requires an understanding of how the law’s treatment of marginalised groups deepens the group's sense of exclusion, decreases their acceptance of the law's legitimacy and reinforces the perception of the group's 'deviancy ‘ in the criminal justice system. It is this process of alienation and exclusion, which makes a significant contribution to the never-ending cycle of violence in low-income communities. Two theories, procedural justice and legal estrangement, offer insights on how to repair the fractured relationship between the marginalised on one hand and legal authorities on the other. 

Sunshine's and Tyler’s (2003)  procedural justice theory is the most widely accepted solution for building the marginalised trust in the law and legal authorities. Procedural justice assumes that most people are motivated to comply with the law not out of fear of being punished but because they believe it is right to do so. This belief is contingent on the individual’s acceptance of the legitimacy of the law and its institutions. Procedural justice theory therefore posits that increased compliance with legal authorities and perceived legitimacy of the law can be achieved where legal authorities treat individuals fairly. 

However, the theory has been criticized on a few grounds. Bell (2017)  argues that the theory's concern with increasing the citizen's deference to legal authorities suggests that non-compliance with the law is an inherent pathology of the marginalised group rather than a by-product of social exclusion. It therefore fails to account fully for the structural conditions that have shaped the disadvantaged group’s alienation from and distrust towards the law and legal authorities. Its blindness to these structural conditions and its focus on maintaining the state's authority to exercise its coercive power, render it inadequate in providing a fuller explanation for and solution to the fractured relationship between legal authorities and marginalised groups. For Bell, the problem is not compliance but alienation or estrangement. 

Bell offers an alternative lens in the form of legal estrangement theory.  At the centre of legal estrangement theory is the idea that the raison d'etre of the criminal justice system should be to foster social inclusion. It conceptualizes law and legal authorities as being part of a broader system where some groups are denied full social membership. In this broken social order, law has been used not to rectify this exclusion but as a tool to maintain control over the marginalised/excluded group. To truly understand and prescribe a solution to this exclusion and the resulting alienation of the marginalised group, Bell proposes a theory which incorporates an analysis of the alienation individuals feel towards the law and legal authorities (legal cynicism) and the structural conditions creating the alienation. From this starting point, she identifies three socio-legal contributors to the legal estrangement experienced by marginalised groups: procedural injustice, vicarious marginalisation and structural exclusion. 

When security forces killed 76 unarmed young men in Tivoli Gardens, Jamaica, many residents saw it as another example of the police’s unjust treatment towards the community. Crime fell temporarily but the community’s distrust of the police persisted. By contrast, the state took a different approach in Grants Pen, another low-income community known for its high crime. It introduced community policing, which incorporated procedural justice principles: police officers were encouraged to give residents voice as well as treat them impartially and with dignity and respect. Grants Pen is today one of the most peaceful inner-city community in Kingston.

Addressing the procedural injustices of police engagement with residents is not the only factor that contributed to a fall in crimes in Grants Pen. As Bell rightly explains, procedural injustice is “a key provocateur of estrangement” but it is not the whole picture. Procedural injustice intertwines with vicarious experience of estrangement and structural exclusion to deprive members of the marginalised groups from the benefits of the law’s protection and furthers their alienation. This analysis assists us in understanding how community policing combined with a Peace and Prosperity Project, which addressed structural drivers of exclusion, led to greater cooperation with law enforcement and decrease in crime. The initiative provided skills training for at risk youths, supported the establishment of small businesses and undertook a community beautification project .

The different crime fighting approaches used in Grants Pen and Tivoli raise questions about how the marginalised (powerless) experience power. The criminal justice system by its nature is hierarchical and compliance with the law therefore means the already marginalised must accept a further state of powerlessness. How does this impact the relationship between the marginalised and legal authorities? Mentovich’s (2012)  work illustrates the utility of procedural fairness in reducing the anxiety the marginalised feel when confronted with systems that call for further subordination. According to Mentovich, even though the law assumes power over the marginalised, fair treatment empowers individuals while unfair treatment has the opposite effect by reinforcing the powerlessness. Bell does not expressly grapple with this in her analysis. Nonetheless, her focus on structural barriers that result in alienation emphasises the importance of removing the conditions that create marginalisation.

Both theories demonstrate why state sanctioned violence is an ineffective means of dealing with crime in marginalised communities. This crime fighting method misses the mark because it fails to address and contributes to the alienation/estrangement that fuels crime in these communities. To effectively deal with the underlying alienation, crime fighting approaches must address not only procedural injustices but also structural inequalities.

UNDOC and World Bank Report on Crime, Violence and Development Trends 2007,
Caribbean Human Development Report 2012
Caribbean Human Development Report 2012
Sunshine J., Tyler T.R., 2003. The role of procedural justice and legitimacy in shaping public support for policing, Law and Society Review 37,513-548.
Bell M.,2017. Police reform and the dismantling of legal estrangement, Yale Law Journal 126(7), 2054-2150.
Gray S., 2007. Trends in Urban Crime and Violence in Kingston Jamaica. Global Report on Human Settlement. Mentovich A.,2012. The Power of Fair Procedures: The Effect of Procedural Justice on Perceptions of Power and Hierarchy. Doctoral Thesis. New York University.

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