Special Issue on Procedural Fairness - American Judges Association

[Judges']proceduralfairness andoutcome fairnessjudgments werelargely determinedby outcomes,rather than byprocedural criteria.several cases in which theSupreme Court was consideringthe propriety of policesearch procedures and inwhich the Justices appear tohave relied heavily on searchoutcomes rather than proceduralfairness. For example,the Supreme Court has consideredwhether the use ofdrug courier profiles in U.S.airports violated a passenger’sFourth Amendment rights. 14In these cases, the courts described their decision making taskas a balancing of several considerations, including the risk offalse positive errors and the harms they inflict on search targets,versus the societal benefits achieved by using the profilingtechnique. 15 In other words, the Justices describe their owndecision making as a utilitarian balancing of outcome concerns:societal benefits against individual harms.This judicial reasoning poses a challenge to the proceduralfairness theorizing described above, which has emphasized thedominant influence of procedures and which has graduallymoved away from characterizing procedures as instruments forobtaining fair or beneficial outcomes, to characterizing proceduresas symbols – cues to social relationships and groupstanding.The tension between these contrasting perspectives was thestarting point for the Heuer et al 16 inquiry. If a decisionmaker–decision recipient disparity in concerns with proceduresversus outcomes exists, it could have important ramifications:decision makers’ best efforts to act fairly might leave decisionrecipients feeling unfairly treated, with all of the attendant negativeconsequences. The findings of their four studies, summarizedbelow, suggest the presence of this disparity.THE IMPORTANCE OF OUTCOMES AMONG JUDGESIn the first two studies, state appellate court judges (Study 1)and state trial court judges (Study 2) read a summary of a fictitiousappellate case involving a search and seizure. The appellantin this case had been required to answer a series of questionsbefore boarding a flight, and his answers were analyzedusing a technology called Voice Stress Analysis (VSA). Becausehis responses indicated stress, federal agents searched his luggage,and the passenger was arrested when they discovered illegalmaterials in his possession. The summary indicated that thedefendant was convicted, and was presently appealing his convictionon the grounds that the interrogation procedure violatedhis Fourth Amendment protection against unreasonablesearch and seizure. The case summary described the search procedureand the search outcome. However, the information thatparticipants received about these two factors varied dependingon their randomly assigned experimental condition.Half of the judges read a case in which the procedure wasadministered in a respectful manner: The defendant was permittedto explain why he was triggering the VSA, and thepolice treated him politely. The remaining judges read a case inwhich the procedure was administered in a disrespectful manner:The defendant was not permitted to explain why he wastriggering the VSA, and the police treated him rudely and withsome hostility.Similarly, half of the judges read a case summary in whichthe outcome of the search was of high societal benefit: Uponsearching the passenger’s luggage, the officers found a .45 caliberpistol. In addition, these judges learned that there hadbeen 130 attempted airline hijackings in the past year, and thestate’s attorney pointed out that VSA was expected to cut therate of such attempts in half. The other half of judges read asummary in which the outcome of the search was of relativelylow societal benefit: The officers’ search revealed one marijuanacigarette (Study 1) or several stolen credit cards (Study 2).These judges also learned that there had been four attemptedairline hijacking attempts in the past year, and the state’s attorneypointed out that VSA was expected to cut the rate of suchattempts in half.The judges completed a questionnaire about their reactionsto this case, and their likely decisions in this appeal. They alsoanswered questions about the way that the defendant wastreated by the police, the costs and benefits of the search, thefairness of the search procedure, and the outcome of the search.Both of these studies indicated that these judges evaluatedprocedures and reasoned about fairness in a different way thantypically has been reported in the procedural fairness literature.Among these judges, the (high vs. low) societal benefitproduced by the search influenced their decisions, and thiseffect was completely due to the judges’ perceptions of outcomefairness. In other words, when the benefit to society washigh (i.e., when a gun was found, as opposed to a joint of marijuanaor stolen credit cards), judges considered the outcomeof the search procedure to be more fair, and this increased thelikelihood that they would uphold the appellant’s conviction.In addition, neither of these studies found any evidence thatthe description of the search procedure—the variable typicallyshown to be a powerful determinant of procedural evaluationsamong decision recipients—influenced these judges’ decisionsonce the outcome was known.In short, the judges’ procedural evaluations in these experimentalscenarios were more heavily influenced by outcomefairness than by procedural fairness, and both their proceduralfairness and outcome fairness judgments were largely determinedby outcomes, rather than by procedural criteria. Thesefindings are suggestive of a decision maker-decision recipientdisparity in the criteria that shape procedural fairness and satisfaction.However, they are based exclusively on fairness reasoningamong decision makers. The claim for the existence ofa disparity that is a function of one’s role in an encounter as14. E.g., U.S. v. Mendenhall, 446 US. 544 (1980); Reid v. Georgia, 448U.S. 438 (1980); Florida v. Royer, 460 U.S. 491 (1983); U.S. v.Montoya De Hernandez, 473 U.S. 531 (1985); U.S. v. Sokolow,490 U.S. 1 (1989).15. JOHN MONAHAN & LAURENS WALKER, SOCIAL SCIENCE AND LAW:CASES AND MATERIALS (3d ed. 1994).16. Heuer et al., supra note 13.64 Court Review - Volume 44