Special Issue on Procedural Fairness - American Judges Association

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dural justice can obscure the equally important issue of distributivejustice. The concern with how best to allocateresources or outcomes has a long history, dating back at leastas far as Aristotle, 7 and modern work on distributive justice—from both theoretical and experimental perspectives—continuesunabated. 8 Without denying the benefits to be gained fromimproving procedural justice, one could even argue that concernsabout distributive justice should be paramount.Questions about process are, in a sense, contingent on questionsabout outcome. Unless some outcome occurs, the proceduresused to arrive at that outcome are moot. 9 Thus, weshould not lose sight of what courts can do to enhance perceptionsof distributive fairness, in addition to enhancing perceptionsof procedural fairness.OUTCOME VERSUS PROCESS IN THE COURTSThe outcomes that occur to citizens from actions by the justicesystem can be, and often are, life-altering: loss of liberty,life, or reputation; compelled or prohibited behaviors; transferof substantial sums of money. One can construe these outcomesas a distribution of punishment and/or rewards to theaffected parties. Courtroom procedures, for their part, are foreignand time-consuming at best, and terrifying at worst. Inlight of the high stakes, it would seem to be a “no-brainer” forjudges and other court personnel to make the procedures asfair and “user-friendly” as possible, for litigants as well as otheraffected parties (e.g., witnesses, jurors). 10 Significantly, judgeshave more leeway in the procedures they use than in the outcomesthey deliver, which are constrained by evidentiaryguidelines, legal precedent, sentencing guidelines, and thespectre of appellate review, among other factors.Perhaps because of these constraints, “judges focus on thefairness of case outcomes instead of the process.” 11 The problemhere is not that judges focus on outcomes more thanprocesses, but that they focus on outcomes largely to the exclusionof processes. A simple thought experiment illustrates thedesirability of focusing on outcomes more than processes.Suppose that Defendant A and Defendant B have both beencharged with first-degree murder, a crime that they did notcommit. They are tried separately, in the same courtroom andwith the same evidence. In Defendant A’s trial, he is notallowed to testify, the judge shows clear favoritism to the prosecutor,and court personnel treat A in a rude and condescendingmanner. Nonetheless, the jury acquits. In Defendant B’strial, he is allowed to addressthe court, the judge is scrupulouslyimpartial, and court personnelare extremely solicitousand respectful. Nonetheless,the jury convicts. Clearly, theprocess in B’s trial is more fair,and anyone would prefer the Bcourt’s procedures. But on thewhole (taking distributive andprocedural concerns together),which situation is better?The concern withhow best toallocate resourcesor outcomes hasa long history,dating back atleast as far asAristotle....Would you rather be Defendant A or Defendant B? A’s situationseems better from a societal perspective, because the courtreached the right outcome, albeit by suboptimal procedures.Moreover, most, if not all, people would choose to beDefendant A rather than Defendant B. In this situation, outcometrumps process.Now suppose the hypothetical is the same, except that Aand B did, in fact, commit the crime. What then? Again, most,if not all, people would choose to trade places with DefendantA, even though, from a societal perspective, a murderer hasbeen set free. The manner of B’s trial might provide him someconsolation, but it is likely to offer him only small comfort. Ofcourse, in more ambiguous cases, outcome would not necessarilytrump process; and as Burke and Leben describe, a fairprocess can go a long way toward softening a harsh outcome.Similarly, an unfair process can make a positive outcome lesssatisfying. But pushed to the extremes, outcome matters morethan process.PRINCIPLES OF DISTRIBUTIVE JUSTICEAs mentioned above, judges’ allocation of outcomes is constrainedby a variety of factors. Nonetheless, except wheremandatory sentencing guidelines apply, criminal judges retaina fair degree of discretion, and civil judges also have considerableflexibility in fashioning a remedy, in terms of both the typeof remedy (e.g., monetary vs. other restitution) and theamount. In allocating some resource, decision makers can relyon several different principles of distributive justice. Whenjudges mete out punishment (in criminal cases) or redistributemoney (in civil cases), it behooves them to be sensitive to thevarious principles that could be applied, and the different goalsthat those principles serve.7. See, e.g., MILLER, supra note 4; John T. Scott et al., Just Deserts: AnExperimental Study of Distributive Justice Norms, 45 AMER. J. POL.SCI. 749, 750-51 (2001).8. See, e.g., MORTON DEUTSCH, DISTRIBUTIVE JUSTICE (1985); NORMANFROHLICH & JOE A. OPPENHEIMER, CHOOSING JUSTICE: ANEXPERIMENTAL APPROACH TO ETHICAL THEORY (1992); MELLERS &BARON, supra note 4; JOHN RAWLS, A THEORY OF JUSTICE (1971);Philip Michelbach et al., Doing Rawls Justice: An ExperimentalStudy of Income Distribution Norms, 47 AMER. J. POL. SCI. 528(2003); Scott et al., supra note 7.9. In some circumstances, the failure to reach an outcome is the outcome.This happens, for example, when there is a hung jury, whena law firm postpones a decision about making a junior associate apartner, or when a university places an applicant on a waiting list.Because these “non-decisions” nonetheless carry consequencesfor those involved (e.g., the defendant still can be retried, theassociate still does not share in the firm’s profits, the applicant stilldoes not have a university to attend), they function as unique outcomesand therefore do not change the analysis.10. For a review of some of the procedural innovations that have beentried, especially with jurors, see Monica K. Miller & Brian H.Bornstein, Juror Stress: Causes and Interventions, 30 T. MARSHALL L.REV. 237 (2004).11. Burke & Leben, supra note 1, at 14.Court Review - Volume 44 73
It is clearfrom thisbrief overviewthat multipledistributive justiceprinciples arerelevant to boththe criminaland civil justicesystems.Theoretical and experimentalresearch on distributive justicehas identified a number ofdistinct principles that peoplerely on in making (or inexpressing preferences for)allocation decisions. Differentresearchers use slightly differenttaxonomies, but the mostcommonly cited principles areequality, efficiency, need, andmerit (also referred to as desertor proportionality). 12 Equalitydictates that all affected partiesreceive the same allocation. So, for example, all workersreceive the same raise, all families on welfare receive the sameamount of food stamps, and so forth. Strict mandatory sentencingis an example of the equality principle in criminal justice.13 Perhaps the best example of equality in civil contexts isworkers compensation, by which injured parties receive compensationaccording to a predetermined schedule. In such asystem, the same injury is always worth the same amount,regardless of individual circumstances. 14Departures from equality reflect an adherence to other justiceprinciples. For example, a concern with efficiency meansthat aggregate productivity can be increased by awarding someindividuals more of a resource than others. It might makesense to award higher raises to more senior, more productiveemployees than to less productive ones, if doing so makesthem still more productive, and the company as a whole benefits.15 The goal of general deterrence in legal contexts can beexplained in terms of efficiency. One can justify punishingsome defendants—either criminally or civilly—more severelythan others, for comparable actions, if doing so would makesociety as a whole function better in some way. For example, itmight make sense to force a financially robust product manufacturerto pay more in damages for a defective product than aless solvent manufacturer, if requiring equal payment wouldforce the less solvent company out of business, thereby losingother valuable products and services that it might provide.Inequality can also be justified by a disparity in need. In thefood stamp example given above, one could argue that a familyof eight should receive more aid than a family of fourbecause the family of eight has greater needs. 16 Need plays animportant role in the resolution of legal disputes, especially incivil cases. So, for example, if the sole breadwinner in the familyof eight were incapacitated due to another’s negligence, heor she would typically recover greater damages than the solebreadwinner in the family of four (all else being equal).Finally, the distribution of resources can vary according tomerit, in which some individuals deserve more/less than others.Multifarious factors contribute to merit, subsuming things thatare both mostly innate (e.g., intelligence, beauty) and thosethat are largely acquired (e.g., wealth, prestige). 17 Importantly,there is also a strong behavioral component, in terms of howmuch the individual’s own actions have helped generate particularoutcomes. Merit-based distribution systems are widespreadin capitalist societies; 18 consider, for example, that mostbusinesses, especially in the private sector, determine salarybased primarily on an employee’s individual efforts, productivity,and success. Experimental research on distributive justicesupports the centrality of concerns about merit, especially interms of income distribution. 19 It is also a cardinal concern inboth civil and criminal law, where it is often referred to as proportionality.Thus, a civil litigant’s penalty/reward is oftenexplicitly tied to his or her contribution to the outcome, as inapplying comparative negligence or market share liability.Similarly, criminal punishment is tied closely to a defendant’sculpability (i.e., desert), and a variety of aggravating or mitigatingfactors can raise or lower the punishment.It is clear from this brief overview that multiple distributivejustice principles are relevant to both the criminal and civiljustice systems. The choice is not simply between one oranother principle, as multiple principles can, and do, applysimultaneously. Research on allocation preferences has shownthat individuals take a pluralistic approach and rely on multipleprinciples in a “complex yet structured” manner. 20Although these principles lurk beneath the surface of judicialdecision making, they are rarely explicit. A rare instancewhere a judge-like arbiter did explicitly consider which distributivenorms were most appropriate occurred in theSeptember 11th Victim Compensation Fund, administered by<strong>Special</strong> Master Kenneth Feinberg. 21 The statute that enabledthe fund 22 required a calculation of each claimant’s presumed12. See, e.g., Scott et al., supra note 7, at 524-25; see generally MILLER,supra note 4; RAWLS, supra note 8.13. In practice, most “mandatory” sentencing guidelines provide atleast a little wiggle room, by setting a range of allowable sentencesrather than specifying a precise, invariant sentence. These rangesallow for the influence of other principles, such as need or merit,in conjunction with a rough sense of equality.14. Though even here, departures from equality may be justified byother factors, such as the injured person’s age, showing again theinfluence of the other justice principles.15. This would especially be true in an employee-owned company,where less productive employees share directly in their coworkers’increased productivity.16. In ordinary discourse, people are often tempted to say that thefamily of eight deserves more, but that conflates the principle ofneed with the principle of merit, or desert (discussed infra). Forpresent purposes, the family of eight has done nothing to makethemselves more “deserving,” beyond having produced moremouths in need of feeding.17. See generally RAWLS, supra note 8, at 73-74.18. Justice preferences can be quite different in non-capitalist societies;see, e.g., Duane F. Alwin et al., Comparative ReferentialStructures, System Legitimacy, and Justice Sentiments: AnInternational Comparison, in SOCIAL JUSTICE AND POLITICAL CHANGE109, (James R. Kluegel et al. eds., 1995).19. E.g., Michelbach et al., supra note 8, Gregory Mitchell et al.,Judgments of Social Justice: Compromises between Equality andEfficiency, 65 J. PERS. & SOC. PSYCH. 629 (1993); Scott et al.,supra note 7.20. Scott et al., supra note 7, at 764; see also FROHLICH & OPPENHEIMER,supra note 8; MILLER, supra note 4; Michelbach et al., supra note8; Mitchell et al., supra note 18.74 Court Review - Volume 44
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nomenon exists. 6 Thus, procedural
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PERCEPTIONS OF PROCEDURAL FAIRNESS
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up to the courtroom, but also the w
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