Special Issue on Procedural Fairness - American Judges Association

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President’s ColumnEileen OldsDuring this year as your AJA president, my appreciation andrespect for the role that we play in our courtrooms has amplified.I have been afforded numerous opportunities to speakwith other judges and various community and civic groups togauge their concerns about our judicial system. Members of thejudiciary and the community alike share a common concern forwhat is viewed as increasingly eroding societal values, as evidencedin courtrooms everywhere. Most conversations eventuallyevolve to discussions about prevention strategies. Howdid this happen? What needs to be done? I am convinced that,as judges, we must actively seek to answer these questions andembrace an obligation to offer solutions. Many of our nation’ssocietal challenges are disguised as legal issues on court dockets;far too many severely impact our children.As a juvenile and domestic relations courtjudge for more than 13 years, it should be no surprisethat this is a subject near and dear to myheart; and one that must be closely examined. Itis abundantly clear that there is a proliferation ofsocial problems affecting today’s children andtheir families. Of all the advances the judiciaryhas made in courtroom technology, docket management,courtroom construction, specializedand problem-solving courts, etc., there is one area that remainsconstant—overrepresentation of minorities and disadvantagedyouth in our criminal justice system. As judges, I believe thatwe have a responsibility to lend ourselves as participants in thesolution. We are the gatekeepers. We are uniquely poised andequipped not only to tackle and to improve the administrationof justice, but also to be more mindful of the social ills thatcripple our nation today.I recently sat in an audience with a group of judges as weheard a presentation on the laudable efforts of the Children’sDefense Fund (“CDF”). CDF is a nonprofit organization determinedto ensure a successful passage from childhood to adulthood.Its goal is to offer preventive support to poor and minoritychildren before they encounter family dissonance or educationalfailure. A core belief maintained by the CDF is thatwithout practical early intervention, incarceration is inevitablefor many of America’s children.CDF’s Cradle to Prison Pipeline sm research identified a gravecrisis affecting many minority children. They are abused, abandoned,and impoverished at greater rates than the general population.They are born to teen parents, born underweight, andmedically uninsured. They languish in poverty, foster care, anddrug houses. Disadvantaged at birth, these neglected childrenwill most likely become America’s future prisoners. Accordingto statistics provided by the CDF, African-American boys bornin 2001 have a one in three likelihood of becoming incarcerated.Latino boys have a one in six chance of imprisonment.Underprivileged children are enmeshed in family unreadiness.The majority, rather than being raised by responsible parentsor positive role models, are negatively influenced by televisionimages, peers, and gang members. As a result, itbecomes increasingly difficult to break free fromtheir hampered environment. Economic disparities,the lack of quality living standards, healthcare, and education create a divide. Success forthese bruised youths is obstructed and replacedwith learning impediments. The numbers ofthose impacted are staggering, and unless thisnational crisis is remedied, America’s Cradle toPrison Pipeline sm will continue. (You can read thefull CDF report online at http://www.childrensdefense.org/site/PageServer?pagename=c2pp.)The judges’ acknowledgement is therefore a necessary componentto bring awareness and attention to contributing factorsthat bring juveniles before the court. While we must speakwith clarity and authority to those before the court, we alsohave the responsibility to promote innovative approaches toaddress the underlying inequities.Radical actions produce extreme changes. I am confidentthat the cradle-to-prison pipeline can be derailed and that someof these sociological ills can be healed. I urge your support inactively participating and working together with policy makers,parents, community leaders, and others to identify viable solutions.We are in an undeniable position of relevance to theseissues. Through effective partnerships we can unite offeringhope, new chances, and a better life for our children. Togetherwe can create opportunities for new beginnings—untaintedbeginnings that outshine past negative experiences anddestructive influences.Court Review - Volume 44 3
A WHITE PAPER OF THE AMERICAN JUDGES ASSOCIATIONTHE VOICE OF THE JUDICIARY ®PROCEDURAL FAIRNESS:A KEY INGREDIENT IN PUBLIC SATISFACTIONKevin Burke & Steve LebenAmericans are highly sensitive to the processes of procedural fairness. It is no surprise,then, that the perception of unfair or unequal treatment “is the single mostimportant source of popular dissatisfaction with the American legal system.” 1Even first-graders react negatively to a situation where a mother punishes her child for abroken vase without consulting a witness first. This negative reaction signifies powerfullythat children are already sensitive to the principles of procedural fairness. 2 If childrenin early elementary school already react negatively to perceived violations of proceduralfairness, it is only that much more imperative to address the needs of the adults whoappear in the courts to fight for custody of their children, file bankruptcy, contest a speedingticket, or respond to allegations of felonious criminal behavior.Judges can alleviate much of the public dissatisfaction with the judicial branch by payingcritical attention to the key elements of procedural fairness: voice, neutrality, respectfultreatment, and engendering trust in authorities. Judges must be aware of the dissonancethat exists between how they view the legal process and how the public before them viewsit. While judges should definitely continue to pay attention to creating fair outcomes,they should also tailor their actions, language, and responses to the public’s expectationsof procedural fairness. By doing so, these judges will establish themselves as legitimateauthorities; substantial research suggests that increased compliance with court orders anddecreased recidivism by criminal offenders will result. Procedural fairness also will lessenthe difference in how minority populations perceive and react to the courts.Many people have little contact with the court system in their daily life, so it is understandablethat they feel overwhelmed and lost when they are confronted with an unfamiliarlegal system. This lack of knowledge about the court has resulted in a state ofambivalence—accentuated by the lack of depth to most news coverage of the courts andthe misinformation of entertainment television. In many ways, procedural fairnessbridges the gap that exists between familiarity and unfamiliarity and the differencesbetween each person regardless of their gender, race, age, or economic status. It is a valuethat the American public expects and demands from judges, and many judges haveembodied the concepts of procedural fairness in their everyday lives. While the American© 2007 by Kevin Burke and Steve Leben. The authors grant you permissionto reprint this article for any educational purpose.Footnotes1. Jason Sunshine & Tom R. Tyler, The Role of Procedural Justice andLegitimacy in Shaping Public Support for Policing, 37 LAW & SOC’YREV. 513, 517 (2003).2. Robert J. MacCoun, Voice, Control, and Belonging: The Double-Edged Sword of Procedural Fairness, Center for the Study of Lawand Society Jurisprudence and Social Policy Program, JPS/Centerfor the Study of Law and Society Faculty Working Papers, Paper30, at 14 (May 5, 2005), available at http://repositories.cdlib.org/csls/fwp/30/.4 Court Review - Volume 44
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Page 24 and 25: ABOUT THE AMERICAN JUDGES ASSOCIATI
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The Perceptions ofSelf-Represented
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APPEARANCE OUTCOMEStipulation*Stipu
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TABLE 8: SATISFACTION WITH COURT EX
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Decision Makers andDecision Recipie
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[Judges']proceduralfairness andoutc
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Study 3 isimportant becauseit demon
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addition, Fairness Heuristic Theory
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dural justice can obscure the equal
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economic loss based on a variety of
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doubt that aspirations for, and sat
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proposed conditions, in the judge c
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ole optimally, procedural fairness
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