Special Issue on Procedural Fairness - American Judges Association

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TABLE OF CONTENTSEXECUTIVE SUMMARY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4THE NEED FOR PROCEDURAL FAIRNESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5RECIDIVISM, LEGITIMACY, AND COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7PUBLIC KNOWLEDGE ABOUT THE COURTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8WHAT SHAPES PUBLIC KNOWLEDGE OF THE COURTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11THE POWER OF VOICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12JUDICIAL BODY LANGUAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13JUDGES’ PERCEPTIONS OF FAIRNESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14THE CASE VOLUME OF COURTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16PROCEDURAL FAIRNESS AND MINORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17RECOMMENDATIONS FOR CHANGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18BIBLIOGRAPHY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22ABOUT THE AUTHORS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24ABOUT THE AMERICAN JUDGES ASSOCIATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25ACKNOWLEDGEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25Judges Association recognizes the achievements of these individuals and many courtsalready intent on promoting procedural fairness, the purpose of this white paper is toidentify and advocate for more changes that will improve the daily work of the courts andits judges.This paper addresses research on courts within the United States and makes recommendationsfor the judiciary there. In addition to our 2,500 member judges in the UnitedStates, however, the American Judges Association also has about 150 members in Canada.Although we make no recommendations regarding the courts in Canada, we believe thatthe baseline social-science research upon which this paper is based would also be applicablethere, given the similarities between the legal systems of these two countries.PROCEDURAL FAIRNESS IS THE CRITICAL ELEMENT IN PUBLIC PERCEPTIONAND SATISFACTION WITH THE COURT SYSTEM.Most people care more about procedural fairness—the kind of treatment theyreceive in court—than they do about “distributive justice,” i.e., winning or losingthe particular case. 3 This discovery has been called “counterintuitive” 4 andeven “wrong-headed,” 5 but researcher after researcher has demonstrated that this phe-3. Jonathan D. Casper, et al., Procedural Justice in Felony Cases, 22LAW & SOC’Y REV. 483 (1988); TOM. R. TYLER, ET AL., SOCIAL JUSTICEIN A DIVERSE SOCIETY (1997); and Jason Sunshine & Tom R. Tyler,The Role of Procedural Justice and Legitimacy in Shaping PublicSupport for Policing, 37 LAW & SOC’Y REV. 513 (2003).4. M. Somjen Frazer, The Impact of the Community Court Model onDefendant Perceptions of Fairness: A Case Study at the Red HookCommunity Justice Center, Center for Court Innovation 3 (2006),available at http://courtinnovation.org/_uploads/documents/Procedural_Fairness.pdf.5. TOM R. TYLER, WHY PEOPLE OBEY THE LAW 22 (2006) [HereinafterWHY PEOPLE OBEY].Court Review - Volume 44 5
nomenon exists. 6 Thus, procedural fairness is a critical part of understanding how thepublic interprets their experience with the court system and translates that experienceinto a subjective valuation of the court system as whole.Citizens have high expectations for how they will be treated during their encounters withthe judicial system. In particular, they focus on the principles of procedural fairnessbecause “people view fair procedures as a mechanism through which to obtain equitableoutcomes—which is the goal in cases of conflict of interest.” 7 People value fair proceduresbecause they are perceived to “produce fair outcomes.” 8Psychology professor Tom Tyler, a leading researcher in this area, suggests that there arefour basic expectations 9 that encompass procedural fairness:• Voice: the ability to participate in the case by expressing their viewpoint;• Neutrality: consistently applied legal principles, unbiased decision makers,and a “transparency” about how decisions are made;• Respectful treatment: individuals are treated with dignity and their rights areobviously protected;• Trustworthy authorities: authorities are benevolent, caring, and sincerely tryingto help the litigants—this trust is garnered by listening to individuals and byexplaining or justifying decisions that address the litigants’ needs. 10Procedural fairness matters to every litigant who appears before a judge, but “[w]hat isstriking about procedural justice judgments is that they also shape the reactions of thosewho are on the losing side.” 11 People are in fact more willing to accept a negative outcomein their case if they feel that the decision was arrived at through a fair method.Significantly, even a judge who scrupulously respects the rights of litigants may nonethelessbe perceived as unfair if he or she does not meet these expectations for proceduralfairness.Of course, this does not mean that people are happy if they lose their case and fail toobtain the outcomes they desire. It does mean, however, that they are more willing toaccept and abide by the decisions of judges when those decisions seem to have been madefairly. And their views of judges, the court system, and the law are more favorable followingan experience in which their case is handled via a fair procedure.6. Tom R. Tyler, Psychological Models of the Justice Motive:Antecedents of Distributive and Procedural Justice, 67 J. PERS. SOC.PSYCHOL. 850-863 (1994); Tom R. Tyler, The Relationship of theOutcome and Procedural Fairness: How Does Knowing the OutcomeInfluence Judgments about the Procedure?,9 SOC. JUSTICE RES. 311-325 (1996); Larry Heuer, et al., The Generality of Procedural JusticeConcerns: A Deservedness Model of Group Value and Self-interestBased Fairness Concerns, 25 PERS. SOC. PSYCHOL. BULL. 1279-1292(1999); J. Greenburg, Determinants of Perceived Fairness ofPerformance Evaluations, 71 J. APPL. PSYCHOL. 340-342 (1986); J.Greenberg, Looking Fair Versus Being Fair: Managing Impressions ofOrganizational Justice, 12 RESEARCH IN ORGANIZATIONAL BEHAVIOR111-157 (B. Staw & L. Cummings eds.1990); J. Greenberg & R.Folger, Procedural Justice, Participation, and the Fair Process Effectin Groups and Organizations, BASIC GROUP PROCESSES 235-256 (P. B.Paulus ed. 1983); E. A. LIND, & TOM R. TYLER, THE SOCIAL PSY-CHOLOGY OF PROCEDURAL JUSTICE, (1988); J. THIBAUT & J. WALKER,PROCEDURAL JUSTICE: A PSYCHOLOGICAL ANALYSIS (1975); K. Van denBos, et al., Sometimes Unfair Procedures Have Nice Aspects: On thePsychology of the Fair Process Effect, 77 J. PERSONALITY & SOCIALPSYCHOL. 324-336 (1999); K. Van den Bos, et al., EvaluatingOutcomes by means of the Fair Process Effect: Evidence for DifferentProcesses in Fairness and Satisfaction Judgments, 74 J. PERSONALITY& SOCIAL PSYCHOL. 1493-1503 (1998).7. Tyler, et al., supra note 3, at 75.8. MacCoun, supra note 2, at 12.9. WHY PEOPLE OBEY, supra note 5, at 23.10. Id. at 22-23. See also David B. Rottman, Adhere to ProceduralFairness Principles Throughout the Justice System, 6 CRIM. & PUB.POL’Y 835, 835 (2007).11. WHY PEOPLE OBEY, supra note 5, at 23.6 Court Review - Volume 44
Page 1 and 2: Court ReviewVolume 44, Issu
Page 3 and 4: Court ReviewT H E J O U R N A L O F
Page 5: A WHITE PAPER OF THE AMERICAN JUDGE
Page 10 and 11: THE PUBLIC EXPANDS THEIR KNOWLEDGE
Page 12 and 13: ception of the courts as long as pe
Page 14 and 15: or also because they are more famil
Page 16 and 17: PERCEPTIONS OF PROCEDURAL FAIRNESS
Page 18 and 19: up to the courtroom, but also the w
Page 20 and 21: 3. Judicial education must include
Page 22 and 23: Society Faculty Working Papers, Pap
Page 24 and 25: ABOUT THE AMERICAN JUDGES ASSOCIATI
Page 26 and 27: from outcomes and toward the proced
Page 28 and 29: courts are based heavily upon evalu
Page 30 and 31: Providing people with information a
Page 32 and 33: compared to traditional court proce
Page 34 and 35: judges, if procedural fairness is e
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Page 44 and 45: emerged as the strongest predictor
Page 46 and 47: CONFERENCE OF STATECOURT ADMINSTRAT
Page 48 and 49: The resourceguide... willcontain ef
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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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[O]ur questions toparticipantsinclu
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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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