Special Issue on Procedural Fairness - American Judges Association

The public will notand should notregard the courtsystem withsatisfaction andperceived fairnessunless theincarcerative crisisis tackled and therehabilitativechallenge is met.mindful of the victim), thestage may be set for a morepositive long-term outcome.D. VOICE NOT AFFECTINGTHE LITIGANT’S CASETJ, then, can roost very wellwith procedural fairness.Consider one final issue fromthe White Paper. Judges Burkeand Leben note the well-establishedbut curious finding thatlitigants feel good about havingvoice even in a post-decisioncontext, where their voicecannot in any way influencethe decision. Still, in policy terms, the authors agreed, for ethicalreasons, that “litigants should not be granted an arbitraryvoice in the courtroom merely to pacify this need to speak andparticipate.” 25But TJ has tackled a similar problem in the context of victimparticipation in the criminal process. A victim often participatesby preparing a Victim Impact Statement. But a recentTJ suggestion proposes also a Legal System Victim ImpactStatement (LSVIS), where a victim after-the-fact discusses theprocess from the time of victimization until after the trial:treatment by the police, treatment during trial, etc.Of course, a LSVIS cannot have any impact in the victim’scase itself. But its preparation can satisfy a victim’s need forvoice and the statement can, with proper distribution/dissemination,be useful in improving the system for future cases. Solong as the victim is fully aware that the statement solicited canhave no impact on his or her own case, the ethical issue evaporates,the need for voice is satisfied, and the system can perhapsbe improved for future cases and for the treatment offuture victims. 26CONCLUSIONIn recent years, TJ has “partnered” with related approaches,such as preventive law and with problem-solving courts, especiallydrug treatment courts. In the case of preventive law, TJgave preventive law an ethic of care and a rich interdisciplinaryapproach, and preventive law gave TJ practical office procedures,such as the “legal checkup,” whereby lawyers couldwork with clients to apply the relevant law therapeutically. 27In the case of drug treatment courts, those courts offered TJactual laboratories with practical procedures to examinethrough a TJ lens, and TJ offered drug treatment courts a numberof principles or “instrumental prescriptions” that mayenhance their functioning. 28In the case of procedural justice, TJ has long looked to theprocedural fairness literature to improve the therapeutic functioningof the law. Now, procedural fairness should look to TJand develop a relationship that is a truly two-way street.The need for a robust reciprocal relationship is actually anurgent one. One need only consider the chilling statistics ofthe recently released Pew Report, 29 showing one in 100 U.S.adults (and numbers much, much higher for persons of color)behind bars, placing the U.S. in first place worldwide in incarceratingits population, to know we are in desperate need of allsensible solutions. We might expect the federal criminal justicesystem to offer some leadership. But consider JudgeMerritt’s lament in his recent dissent in the Sixth Circuit caseof U.S. v. Jeross:This is another drug case in which our systemof criminal law has imprisoned for many years twomore lives and torn up two more families bygrossly excessive sentences imposed in the “Waron Drugs.” There are many reasons that our federalsystem of punishment has turned in thisdirection, not the least of which is the advent duringthe last 20 years of our irrational set of sentencingguidelines that judges apply by rote on adaily basis. We are constantly adding new prisonerslike these defendants with long periods ofincarceration to the more than two million menand women now incarcerated in the hundreds ofprisons and jails around the country. These sentencingguidelines hold that mitigating factors likefamily ties, mental illness, education, and the likelihoodof rehabilitation are simply “not relevant”in the sentencing process. Judges’ minds areclosed down and sentences ratcheted up by applyingconvoluted conversion formulas like the onejust recited in the majority opinion. The recentBlakely-Booker-Cunningham line of SupremeCourt cases has given judges an opportunity to ridthe system of some of the worst aspects of guidelines,but we judges soldier on by applying the oldmandatory system as though nothing of significancehad happened. The cost to the taxpayersand in human lives has become enormous andshows no signs of change. 30For all we know, the defendants in Jeross may have receivedall the procedural fairness called for in the White Paper. Butthere comes a time – and we now seem to be well past it –where outcome is as important as process. The public will notand should not regard the court system with satisfaction andperceived fairness unless the incarcerative crisis is tackled andthe rehabilitative challenge is met. Of course, this is everyone’sbusiness, not just the courts’. But for the courts to play their25. Burke & Leben, supra note 1, at 12.26. REHABILITATING LAWYERS, supra note 3 at 325.27. PRACTICING THERAPEUTIC JURISPRUDENCE: LAW AS A HELPINGPROFESSION (Dennis Stolle et al. eds. 2000).28. JUDGING IN A THERAPEUTIC KEY, supra note 3.29. PEW CENTER ON THE STATES, ONE IN 100: BEHIND BARS IN AMERICA2008, available at http://www.pewcenteronthestates.org/uploadedFiles/One%20in%20100.pdf.30. U.S. v. Jeross, No. 06-2257 (6th Cir. April 4, 2008) (Merritt, J.,dissenting).80 Court Review - Volume 44