Legitimacy and Criminal Justice: Introduction to the Symposium

Jeffrey Fagan, Columbia Law School


Surveys of public opinion over four decades consistently show that Americans have little confidence in the fairness or effectiveness of the criminal justice system and criminal law more generally.1 This crisis of confidence is most acute among racial minorities: surveys show that more than one in three Whites have little confidence in the police, compared to more than half of Black respondents.2 Both the lack of confidence and the racial breach in perceptions of the law and legal actors have persisted for nearly four decades, regardless of whether crime was rising or falling.3

But we might reasonably ask whether and why this matters. Why should we care about how people feel about the criminal law when it affects so few of us? After all, most people have little contact with the criminal justice system, and among those with contact, more than half involved traffic stops. 4 Very few of us are victims of crime and seek police protection or redress from the courts. 5 Even if citizens think the criminal law and its institutions are working poorly, casual observers can dismiss these negative views by pointing to America's generally orderly society whose crime rates (except homicide) are not much higher than other industrialized nations.6 Nevertheless, there are important reasons to listen carefully to the persistent popular disquiet about the law. In high crime eras, public concerns are linked directly to crime. But these concerns persist even in low crime eras. Accordingly, public dissatisfaction is broader in scope and widely shared. Americans are persistently frustrated with the low quality of criminal justice as a public service, chronically dissatisfied with the capacity of legal institutions to exact retribution from offenders and expressively condemn crime, and many are morally concerned about racial disparities in the administration of criminal justice.7 This dissatisfaction with the criminal justice system is a constant force, churning and undermining confidence in legal institutions and destabilizing political equanimity in a way that keeps crime politically "in play" even in low crime periods. The disquiet threatens to erode the public perception that the criminal law and legal institutions are legitimate and raises the prospect of disengagement of citizens from the important collaborations that are essential to the co-production of security.