Procedural Fairness For Courts and Judges   resource and discussion on procedural fairness

I am genuinely excited to announce some new resources on procedural fairness in courts and beyond. These resources can be found at a companion web page, ProceduralFairnessGuide.org, and they have been made possible by the National Center for State Courts, the American Judges Association, and the website ProceduralFairness.org. Let me review what’s now available.

Training Materials. The National Center for State Courts has produced four training videos that can be used to teach judges and court staff about procedural-fairness principles. The situations include an employee at the court clerk’s counter dealing with an upset self-represented litigant, a busy criminal first-appearance docket, and judges on the bench distracted either by paperwork or their computers. Discussion guides are available for trainers who would lead the discussion and train participants. Participant guides offer lists of further resources related to each scenario.

AJA Fairness Interviews. The American Judges Association invited nine national leaders to a meeting on how to improve perceptions of fairness in America’s courts, and we recorded interviews we did with them. Those interviews are now on the web, and they provide a rich background of key procedural-fairness concepts and applications:

• Start with the interview with Professor Tom Tyler, the leading scholar in the United States on procedural justice in both the court and law-enforcement contexts. He provides an overview of all of the basic concepts along with practical advice for judges in the courtroom. Every new judge should be given a link to this video.
• Emily Gold LaGratta of the Center for Court Innovation discusses CCI projects to implement procedural-fairness principles in courts around the country as well as specific suggestions individual judges can implement.
• Professor Terry Maroney discusses how judges can get better at dealing with their own emotional reactions in court, as well as those of other court participants. She also talks about what emotions best enhance–or detract from–perceptions of fair treatment.
• Utah State Court Administrator Dan Becker talks about the work the Utah courts do on a regular basis to measure the perceived fairness of trial courts throughout the state, as well as how that data can be used to improve court performance.
• Joanne Slotnik, who headed up Utah’s Judicial Performance Evaluation Commission at the time of the interview, talks about how that commission used procedural-fairness principles as the basis for citizen observers to evaluate the work of Utah’s state trial judges. She also discusses common problems the observers saw and ways judges might improve their on-the-bench performance.
• Consultant Dale Lefever explains that better relationships lead to better outcomes, which in court means better compliance with legal orders. Drawing on training programs he has done for decades with both doctors and judges, he explains how a judge can build better fairness skills, including how to use videotape to evaluate one’s own performance.
• Kent Wagner, who heads the Colorado Office of Judicial Performance Evaluation and previously directed judicial-education programs in Colorado, talks about the significance of procedural-fairness principles to the evaluation of judicial performance, the types of comments commonly made about judges in evaluation surveys, and areas judges might focus on for improvement.
• Bert Brandenburg, the Executive Director of Justice at Stake at the time of the interview, provides background about public opinion of the courts, including what people want from courts and judges. He makes specific suggestions about how judges can respond to the public’s concerns.
• Carl Reynolds, a policy advisor at the Council of State Government’s Justice Center and formerly the Texas State Court Administrator, talks about measurement tools that can be used to assess court performance in fairness as well as how to train judges about procedural-fairness concepts.

There also are two video statements from state supreme court chief justices about the emphasis placed on procedural-fairness principles in the courts of their states. Then-Alaska Chief Justice Dana Fabe (who recently retired) speaks about the decision to place a poster pledging fairness at the entrance to every courthouse in Alaska. Utah Chief Justice Matthew Durrant talks about the emphasis that Utah has placed on procedural fairness–something that he put front and center in a State of the Judiciary message to the Utah Legislature.

Podcasts. Three audio podcasts are now available synthesizing the AJA procedural-fairness interviews. Prepared by Justine Greve (M.A., American Studies), a staff member with the Kansas Court of Appeals, these podcasts (running 8 to 10 minutes each) provide an easy way to hear the themes from all of the interviews, with clips from several of the interviews in each podcast:

• Improving Judicial Behavior. Listen to this podcast for tips about how to improve a judge’s communication from the bench.
• Procedural Fairness in Judicial Training and Evaluation. This podcast focuses on how the principles of procedural fairness can be used to evaluate judges and help them become better at what they do.
• Procedural Fairness as a Model for Modern Authority. In this podcast, we consider changing ideas about what leads the public to accept an authority figure’s legitimacy. The interviewees argue that procedural fairness is the modern model for the proper exercise of authority, leading those involved to view the judge as worthy of their trust.

In addition to these podcasts made from the AJA fairness interviews, Justine Greve has also done several other podcasts for our website, ProceduralFairness.org. They have been published here on this blog as they have been done, but they will soon be reposted on the Podcast page at ProceduralFairnessGuide.org as well.

I’m very pleased that these materials–generated through the collective efforts of the National Center for State Courts, the American Judges Association, and the contributors to ProceduralFairness.org–are now available. We’ll still be doing some spruce-up to the website where they’re located, but we think the resources you’ll find there will be helpful in advancing the cause of procedural fairness in America’s courts.–Steve Leben

We don’t know who first said this: “Learn from the mistakes of others; you can never live long enough to make them all yourself.” But we surely know that judges can learn from the mistakes of other judges.  Explaining to a defendant why a judge imposed a sentence and insuring everyone understands that the decision was based upon neutral principles of law, not some personal vendetta, is an essential component of procedural fairness. Reflecting on what should be said in explaining a sentence is among the most effective checks on our implicit biases.

United States District Judge Rudolph Randa said some things at a sentencing that all judges can learn from. According to to a transcript, his remarks included these: “We had huge riots in this city.  Not unlike what happened in Baltimore this week.  And if we had something like this in this city today? With this pathology that we’ve got set in these neighborhoods? The same thing is going to happen here.”

So what did Judge Randa do that judges might learn from? Judge Randa sentenced Billy Robinson Jr. within the recommended range of the federal sentencing guidelines, yet he was not only reversed by the United States Court of Appeals for the Seventh Circuit, he was removed from the case.  As the appellate court put it: “Billy Robinson’s guilty plea was routine; his sentencing hearing was not. . . . During his sentencing hearing, the district court went far afield in its comments.  We are left without the ability to say confidently that the sentence was imposed in accordance with the proper procedures.” United States v. Robinson, No. 15-2019, 2016 WL 3947808 (7th Cir. July 22, 2016).

The protests in Baltimore and events the judge remembered from 1976 had nothing to do with a relatively minor player in a Milwaukee drug case in 2015, the court said.  Judge Randa was also chastised for remarks about crime in urban neighborhoods and about the defendant having had multiple children with different women.  The judge’s remarks “were irrelevant and had no basis in the record,” Chief Judge Diane Wood wrote. “They therefore undermine our confidence in the fairness of the proceeding.”

The appellate court carefully explained its problems with Judge Randa’s remarks at sentencing:

The sentencing hearing took a wrong turn by focusing on urban decay, social unrest, and the judge’s personal experiences in the relevant neighborhood. As we have said before, “it is inappropriate to blame [a defendant] for issues of broad local, national, and international scope that only tangentially relate to his underlying conduct.” Smith, 400 Fed. Appx. at 99 (citing Figueroa, 622 F.3d at 743–44). We need not review all of the comments made during sentencing; a few examples will suffice.

The district judge invoked his own recollections from his college days of Robinson’s neighborhood, noting that many years ago it was a safe place and now it was not, because of the omnipresent drug trade. These references are troubling because they could be “understood as a personal grudge that the judge bore against [Robinson] for dealing drugs in his old neighborhood.” United States v. Wilson, 383 Fed. Appx. 554, 557 (7th Cir. 2010) (nonprecedential). They appear to attribute “issues of broad local [and] national . . . scope”—changing crime rates in cities—to Robinson’s crime, when these issues at best “only tangentially relate to his underlying conduct.” Smith, 400 Fed.Appx. at 99. Robinson was not charged with a violent crime or a crime involving a firearm, nor did his criminal history include any such crimes.

The district judge also went too far when he suggested that Robinson’s crime was related somehow to events elsewhere in the country. The court discussed its belief that Milwaukee today is similar to Milwaukee in 1967, and drew questionable—and irrelevant—parallels between Milwaukee’s 1967 riots and recent protests in Baltimore over police brutality. He noted in particular some protests in Milwaukee over the Vietnam War in 1967 (12 years before Robinson was born)—protests that got in the way of his deployment to a combat zone. He wondered what would happen if something similar were to take place today, and he bemoaned the general lack of discipline, responsibility, and self-direction.

. . . .

The district court also used “colorful” language to “dispense with arguments that [it] did not appreciate.” See Figueroa, 622 F.3d at 743. In response to Robinson’s statement that his family supports him, the court said, “I don’t care how nice you are. How much your family loves you. I mean, my family loves me, too.” And in response to Robinson’s statement that he and his fiancée intended to move to Alabama in order to leave behind negative influences in Wisconsin and Illinois, the court pointed out that Robinson had five children by four different mothers, and questioned whether he was really prepared to support all five. Robinson’s childcare arrangements might be relevant to his sentence for some purposes. The fact that he has children with multiple mothers is not, however, “the real problem” (in the judge’s words) that his sentence is meant to address.

Judges should tailor a sentence to fit the facts and circumstances of the crime committed and the background of the defendant.  Prior offenses are usually easy to determine.  But when one moves to mental or moral propensities or social background, or pontificates about the effect crime as a way of explaining general deterrence, implicit bias can infect the decision—unless the judge is very careful.

The right to allocution dates back to 1776.  Allocution provides an opportunity for a defendant to explain—in his or her own words.  Although not every state has held the right to allocution to be a fundamental right, it is in essence the first component of procedural fairness: voice.

LEARNING FROM OTHERS

Steps to Getting Good at Sentencing:

• Prepare Mentally

The transcript in United States v. Robinson makes clear that everyone was prepared. Judge Randa had read the presentence report and knew about the defendant. But was he mentally prepared? Interaction with a defendant at sentencing is not an easy task. Being mentally prepared is the essential first step.

• Voice and the Right to Allocution

One of the most prevalent reasons people do not speak in court is intimidation.  Added to the intimidating atmosphere of a court environment at sentencing is fear: “Be careful what you say for fear of offending the judge.”  If intimidation and fear of a defendant to speak are allowed to permeate a sentencing, voice and the right to allocution can become hallow.

• Saying Less Is Not Necessarily Better

There is a temptation to react to Judge Randa’s situation and conclude less is better. It is not. Sympathy can be appropriate at sentencing. Explaining why something that is important to the defendant cannot be recognized as legally relevant also is an essential part of good sentencing. 

• Emotion Is Part of the Sentencing Process

Regulating your own emotions and those of others is a part of all court proceedings—and particularly of a sentencing. Some sentencings can evoke anger in a judge. While anger may or may not be appropriate to the situation, contempt of an individual is never acceptable. Victims can express anger and a prepared judge needs to regulate their emotions. Remorse is an emotion some defendants have and some defendants rather poorly fake. A defendant’s failure to show remorse is a powerful factor in many a judge’s decision on sentencing.  Yet, there is little evidence that remorse can be accurately determined. There is significant evidence that race can create obstacles to accurately evaluating remorse.  See Susan A. Bandes, Remorse and Criminal Justice, 8 Emotion Review 14-19 (Jan. 2016) (first published on October 23, 2015).–Kevin Burke

Sorry for the short notice, but when I was checking some things out on the web today, I came across a great program set for Wednesday, July 27, from 2 to 3 p.m. EDT. Two Yale law professors, Tom Tyler and Tracey Meares, will present the program, entitled “The Importance of Enhancing Procedural Justice in Interactions with Juveniles.”

I’ve already signed up because every time I’ve heard Tom Tyler speak about procedural justice (what I typically call procedural fairness when talking about court proceedings), I’ve learned something new. After all, he has been the leading researcher in this area over the past three decades, and he also has a feel for making things practical and understandable. I haven’t heard Tracey Meares, but she has been doing interesting work in the areas of police legitimacy, communities, and legal policy; I’m sure the interaction between Tyler and Meares will make the program a good one.

The official program description says that they will “describe recent research demonstrating the particular salience of procedural justice to juveniles, a group that has frequent contact with the criminal justice system and whose orientation toward the law is still being established. Tyler and Meares will discuss how criminal justice actors can use the insights of this research to improve their legitimacy in the eyes of young people in their communities.”

Just click the link to go to the program description on the Yale Law School website. From there, hit the link to “webinar” to register. There is no charge for the webinar.–Steve Leben

The National Center for State Courts has produced four videos that can be used in training programs for judges and court personnel about procedural fairness. The videos are available at proceduralfairnessguide.org.

The videos explore how procedural-fairness principles may best be deployed in situations faced by judges and court staff. Four video scenarios are provided, and each one includes discussion questions and links to additional materials about the topic.

The four video scenarios are:

• The Multitasking Judge (5:18): A judge conducting a hearing on whether to modify a no-contact order in a pending domestic-violence case also signs a stack of routine orders during the hearing.
• The Counter Clerk and the Upset Litigant (2:42): A mother who has just received a court order taking away her children comes to the Clerk’s front counter for information. The clerk may–or may not–be able to help.
• The Criminal First-Appearance Docket (3:04): A judge must process more than 100 defendants making their first court appearance in criminal cases.
• The Computerized Judge (9:15): A judge hearing a proceeding to terminate a mother’s parental rights sits in a modern courtroom where he accesses the court file on one computer, the court calendar on an iPad, and texts about emergency warrants on an iPhone. This leads to a motion for mistrial based on the judge’s inattention.

These video segments can be used as part of a training program on procedural fairness. Kevin Burke and I have tried some of them out in the past year; they help to crystallize for an audience some of the problems that can come up–and the video scenarios set in the courtroom are all based on real court hearings.

For judges or court staff who may be leading a training program in this area, the National Center for State Courts has also produced guide to each scenario for discussion leaders. Those guides provide additional background about each scenario; they can be accessed with a password that can be requested. (Information about that can be found under the “Leader’s Guide Login” tab at proceduralfairnessguide.org.)–Steve Leben

Like everyone else, I was surprised last weekend to hear that Justice Antonin Scalia had died. Whether you agreed with him or not, he was a justice whose work changed the legal world.

I teach a law-school course on statutory interpretation. Coincidentally, at our first class after Justice Scalia’s death, our scheduled topic was his methodology for interpreting statutes. Before Scalia, courts often started with the legislative history, not the text. As he noted in a 1989 opinion, a brief to the Court had recently said, “Unfortunately, the legislative debates are not helpful. Thus, we turn to the other guidepost in this difficult area, statutory language.” After Scalia began pointing out arguments like that, everyone came to agree that you must start with the statutory text—and often you will end there as well, even if you also check the statute’s meaning against legislative history, statutory purpose, or past precedents.

But Justice Scalia brought more to the Court than the substance of his arguments—he also had an often-acerbic style and, in recent years, what seemed an openly partisan bent that contributed to the drop in public approval of the Court. Linda Greenhouse has put together an excellent review of where the Court sits today and how it got there (“Resetting the Post-Scalia Supreme Court”), published yesterday in the New York Times. She deals with both substance and style. Our blog is not concerned with the substance of Supreme Court opinions; we are concerned with the appearance of fairness in judicial proceedings. One of the basic tenets of the procedural-justice movement is that no matter who may win on the merits of a case, it’s important that those on all sides believe the judicial hearing was fair to them.

And this brings me back to the Greenhouse op-ed, in which she suggests that it’s time for the justices to hit the reset button. She recognizes that her column may seem “uncharitable, even tasteless” so soon after Scalia’s death, but she makes some good points, including some that Minnesota judge Kevin Burke and I have made in presentations around the country and in comments here on the Procedural Fairness Blog.

One key observation is that public disapproval of the United States Supreme Court—which had long enjoyed broad public support—has reached a new low. The Gallup Poll at the start of the Court’s term last October showed 50% disapproving of the way the Court handled its job, with only 45% approving. Equally important is that people now view the Court in a highly partisan way.

Viewing the Court as partisan rose sharply with the Bush v. Gore decision—after it, 80% of Republicans approved of the job the Court was doing compared to only 49% of Democrats. Those numbers evened out again until shortly after the appointments of Chief Justice John G. Roberts, Jr., and Justice Samuel Alito. In late 2006, 75% of Republicans approved of the Court while only 48% of Democrats did.

But once President Barack Obama began making appointments, approval scores flipped—by mid-2009, 75% of Democrats approved of the Court compared to only 49% of Republicans. And the most recent Gallup survey in mid-2015, after decisions on same-sex marriage and the Affordable Care Act, showed only 18% approval among Republicans (compared to 76% for Democrats and 49% for Independents).

Can the judiciary—and the American justice system—survive over the long haul with numbers like this? I think it’s a cause for real concern.

Greenhouse worries “that the conservative majority is permitting the court to become an agent of partisan warfare to an extent that threatens real damage to the institution.” She provides both substantive and procedural examples; I want to talk about the procedural-fairness side.

Back in 2012, when the Court heard its first set of cases on the Affordable Care Act, Kevin Burke and I (sometimes also joined by Tom Tyler or David Rottman) did some blog posts assessing how well the justices had done to provide the impression of a fair hearing. (See “Focused on Fairness: The Public Turns Its Attention to the U.S. Supreme Court,” “Supreme Court Gets a Passing Grade on Procedural Fairness—So Far,” “The Healthcare Ruling: The Public Stands Ready to Judge the Judges,” and “The Healthcare Decision: First Reaction.”)  We generally commended them—but we also said that “one justice seemed tone-deaf at times to the principles of procedural fairness: Justice Antonin Scalia.” He was “the only one to introduce partisan politics directly into the discussion,” and he seemingly did so only to get a laugh line in. He also brought up what seemed a needlessly partisan reference to the so-called “Cornhusker kickback,” a charge that a Nebraska senator had traded his vote in exchange for a provision he sought. We said, “Using the term ‘kickback’ in referring to a provision that provided benefits to one state, Nebraska, in exchange for the vote of its senator sounds more like a political attack ad than the sort of question a neutral judge would ask.” We also noted that the provision Scalia referred to, while in the Affordable Care Act, was repealed by another bill before it took effect.

Greenhouse points to other examples and to Scalia’s “frequent parroting of right-wing talking points in recent years.” She suggests that this might be a time for the remaining justices to “tak[e] stock of the court, where it has been and where it goes now.”

I would like to follow up on her column with a few suggestions for the future of the court:

• The justices should approach oral arguments more as an open exchange with counsel than as an attempt to persuade their colleagues of the right result for the case. Often, it’s clear in oral argument how most of the justices will vote. Why not ask more open-ended questions, leaving the debate with colleagues for the case conference among the justices? I am an appellate judge myself, and I will concede that there are times when I try to move the discussion toward a point that I hope will be persuasive to a colleague. But I also try to ask some open-ended question even to the counsel for the side I think will likely lose. Doing so at least gives the attorney a chance to address what you see as his or her weakest point. And I try to ask the side I think likely to win to address its weakest point too, thus insuring that questions are addressed to the weaknesses of both sides.
• The justices should allow television coverage of their oral arguments. I have long thought that one of the reasons they don’t allow it may have been the way Justice Scalia carried on at oral argument. He did not fit a model of procedural fairness, and many of his remarks, particularly if cut up into bite-sized snippets, could have been quite harmful to the Court’s image. But many state supreme courts regularly stream their oral arguments over the Internet, allowing the public to see them at work. If the justices conducted themselves with an awareness of the importance that they appear open-minded and willing to listen to the parties’ arguments, televising the Court’s proceedings could be a key step toward improving the public’s impression of them.
• The justices should write opinions that are designed for the lay reader, not the constitutional lawyer. The decision in Brown v. Board of Education was intentionally made short enough that it could be reprinted in full in a newspaper. Even legal scholars and judges find it discouraging to wade through some of the lengthy and multiple opinions issued in some cases. How can the public have a sense that the Court has handled a case fairly if they can’t understand the Court’s opinion, which is its only work product?

Like Ms. Greenhouse, I don’t suggest that the low public-approval scores for the Court today are all based on Justice Scalia’s actions or even on those of all the justices put together. This is an era of intense partisanship. This is also an era in which trust in all institutions is low (and the Supreme Court’s approval remains higher than the other branches of the federal government).

Given this climate, we must earn the public’s trust today in each encounter we have with them. For the Supreme Court, these encounters occur through media coverage and written opinions, and could be valuably supplemented by allowing video coverage of oral arguments. For the long-term health of the judicial system, we need greater public support, and the public needs to believe that important cases have been handled fairly. Letting them see more of the process, making sure that the process appears to have been a fair one, and writing decisions so that members of the public can understand them would all be good steps to take.—Steve Leben