Archive for June 5, 2020

Procedural Fairness as Part of the Healing Process   1 comment

We’ve all been struggling with the events of the past weeks, and certainly the challenges of the global pandemic. Judges are often accustomed to staying in the background on contentious political or societal issues, and for good reason.  But some of our colleagues have started speaking out forcefully about the problems in our justice system and the need for reform.  North Carolina Chief Justice Cheri Beasley released a statement in which she said, “Too many people believe that there are two kinds of justice. . . In our courts, African-Americans are more harshly treated, more severely punished and more likely to be presumed guilty.”  The Supreme Judicial Court of Massachusetts similarly said, in a letter from the court to the judiciary and bar, “we need to reexamine why, too often, our criminal justice system fails to treat African-Americans the same as white Americans, and recommit ourselves to the systemic changed needed to make equality under the law an enduring reality for all.”

            Those are difficult, painful words to hear.  But as the Massachusetts court acknowledged, reform will be “uncomfortable,” entailing “difficult conversations, challenging introspection, hard decisions.”  We need to open ourselves up to discomfort if we’re ever going to see meaningful change.

            The more systemic reform alluded to above is well beyond the scope of this blog post, but I do want to just focus for a moment on the role that procedural fairness can play here.  Procedural fairness, at its core, seeks to ensure not only a level playing field between the parties, but also to educate the participants about how they will be treated and the checks in place to maintain even-handedness.  Much of the work that the AJA has done in this area has provided concrete examples on how trial and appellate court can internalize these practices every day.

            As we confront what might be described as a crisis of confidence in our broader system of justice, one thing that we, as judges, can do immediately is place a renewed emphasis on procedural fairness. Go dust off that benchcard, re-read it, and reflect on the ways that you can implement that in your courtrooms. But, more importantly, start a dialog about it – share it with your colleagues, discuss best practices, and help keep procedural fairness top of mind for your fellow judges.  Equally important, take some time out of your day to remind lawyers and litigants about the procedural fairness steps being followed in your courtroom. We might tend to take such things for granted, but I would submit that there’s never been a better time to verbalize these points.

            Procedural fairness, of course, will not solve everything that people are struggling with right now, but it’s a start and a step in the right direction. And it’s something that you can do right now, without waiting for committees or reports from task forces. So take a moment today to reflect on the importance of procedural fairness, and make a renewed commitment to yourself to focus upon it. — Pierre Bergeron

Posted June 5, 2020 by judgebergeron in Uncategorized