Special Issue on Procedural Fairness - American Judges Association

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[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
either a decision maker or a decision recipient would be moreconvincing if decision makers and decision recipients wereshown to respond differently to procedures and outcomeswhen confronted with a common scenario in a single experimentaldesign. This was the goal of Heuer et al’s Studies 3 and4. 17 In these follow-up studies, decision makers and decisionrecipients evaluated procedures that were: (a) more or lessrespectful responses to (b) more or less serious threats to asocial group. These studies tested the authors’ predictions that:(1) outcome concerns would have a stronger influence on theprocedural evaluations of decision makers than decision recipients,and (2) procedural concerns would have a strongerinfluence on the procedural evaluations of decision recipientsthan decision makers.Study 3 also addressed another important limitation of thestudies described above. Studies 1 and 2 revealed that judgeswere more focused on outcome concerns than procedural ones– however, this could be due to a number of factors. For example,the judges surveyed in Studies 1 and 2 tended to be olderthan the undergraduate populations that typically participatein procedural fairness studies, and Finkel 18 has shown that anemphasis on outcomes in fairness judgments tends to becomemore pronounced with age. Additionally, judges might differfrom other segments of the population on certain value dimensions,such as power-distance, which refers to beliefs about theappropriate social distance between authorities and subordinates.19 In several studies, Tyler, Lind, and Huo have shownthat, when evaluating procedures, people high on power-distance(who believe that there should be a greater social distancebetween authorities and subordinates, and that societiesand organizations function better when there is a more hierarchical,clearly defined power structure) place less importanceon treatment than do low power-distance people. 20 If judgestend to be high on power-distance relative to other sectors ofthe population, this, rather than their position of authority,could be the reason why they placed less value on relationalconcerns and more value on instrumental concerns in Studies1 and 2.In other words, judges’ focus on instrumental concerns inStudies 1 and 2 may not be the result of a disparity betweendecision makers and decision recipients in fairness reasoning,but may instead be the result of a disparity between olderand younger people in fairness reasoning, or a disparitybetween high and low power-distance people in fairness reasoning.Since Studies 1 and 2 simply surveyed judges on theirreactions to the appellate case, these studies cannot rule outthe possibility that judges’ focus on outcome concerns is dueto age or power-distance, rather than their role as decisionmakers.Study 3 addresses this concern by employing an experimentaldesign, and randomly assigning participants to take theperspective of either a decision maker or a decision recipientin the experiment. When randomassignment is employed,there is no reason to believethat the participants who arerandomly assigned to thesetwo roles are systematicallydifferent in any way, other thanthe role that they wereassigned in the experiment.Study 3 therefore tests whetherthe decision maker-decisionStudies 1 and 2revealed thatjudges were morefocused onoutcome concernsthan proceduralones....recipient disparity appears in this experimental setting, independentof the numerous characteristics that may be confoundedwith decision making status in natural settings.DECISION MAKERS AND FAIRNESS IN ANEXPERIMENTAL STUDYIn Study 3, undergraduate participants read one of multipleversions of a vignette describing an encounter between anauthority and a subordinate. In this fictional case, a studentResident Assistant (RA) in campus housing searched a resident’sroom after receiving a tip that she was violating campushousing regulations. On discovering a violation, the RAreported the student, who was consequently banned fromcampus housing for one month. The vignette described thestudent’s appeal of the sanction on the grounds that the RA’ssearch procedure was inappropriate. The vignettes in thisexperiment varied on three dimensions: (a) the benefit producedby the outcome of the search, (b) the respectfulness ofthe RA’s search procedure, and (c) whether the participantread the vignette from the perspective of an authority or asubordinate.The outcome manipulation in this study varied whether thesearch resulted in an outcome of high or low benefit to thecampus housing community. In the high benefit search conditionthe RA discovered cocaine, whereas in the low benefitsearch condition the RA discovered burning incense (both thehigh and low benefit discoveries constituted violations ofactual campus housing regulations). The procedure manipulationvaried whether the search procedure was conducted in amore or less respectful manner. In the high respect conditionthe RA was described as treating the resident in a polite andrespectful manner, whereas in the low respect condition the RAwas described as treating the resident in a rude and disrespectfulmanner.Participants were informed that appeals were heard by aboard comprised of student residents, RA’s, and a campusadministrator. Participants imagined themselves either in therole of an authority or a subordinate in this story. Participantsassigned to the authority perspective responded to the casewhile imagining themselves as an RA member of the appellateboard. Participants assigned to the subordinate perspective were17. Id.18. Norman J. Finkel, But It’s Not Fair! Commonsense Notions ofUnfairness, 6 PSYCHOL. PUB. POL’Y & L. 898 (2000).19. GEERT H. HOFSTEDE, CULTURE’S CONSEQUENCES: INTERNATIONALDIFFERENCES IN WORK-RELATED ATTITUDES (1980); GEERT H.HOFSTEDE, CULTURE’S CONSEQUENCES: COMPARING VALUES,BEHAVIORS, INSTITUTIONS, AND ORGANIZATIONS ACROSS NATIONS (2ded. 2001).20. Tyler et al., Cultural Values , supra note 8.Court Review - Volume 44 65
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nomenon exists. 6 Thus, procedural
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THE PUBLIC EXPANDS THEIR KNOWLEDGE
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