Four national court organizations released a Procedural Fairness Bench card for trial judges today. The bench card can be found under the new “Bench Card” tab on the front page of our website, ProceduralFairness.org. Or you can just click this link to go directly to the bench card. It’s also being printed as the back cover of the issue of Court Review that’s now in the mail to American Judges Association members.
The bench card is a joint product of the American Judges Association, the Center for Court Innovation, the National Center for State Courts, and the National Judicial College.
The bench card tries to answer the key questions a trial judge might have about procedural fairness (also known as procedural justice):
What is it? It’s a set of evidence-based practices that lead to better acceptance of court decisions, a more positive view of individual courts and the justice system, and greater compliance with court orders. The bench card begins by explaining six closely connected elements of procedural fairness.
Why is it important? Rigorous studies have shown that both acceptance of court decisions and overall approval of the court system are much more closely connected to perceptions of procedural fairness than to other factors.
Can it be measured? Yes, and the bench card provides links to measurement tools that judges and courts can use.
How do I do it? One full side of the bench card describes specific things trial judges can do to practice procedural fairness in court.
Where can I get more information? The bench card also provides links to websites that provide more in-depth materials and to six specific publications.
Michigan trial judge Rosemarie Aquilina is presiding over the sentencing hearing for Lawrence Nassar, the former doctor for U.S.A. Gymnastics. But she’s also running what amounts to a demonstration clinic on how to show compassion to crime victims at sentencing.
The New York Times has a front-page article today on the sentencing hearing, now in its second week. The article is filled with statements Judge Aquilina has made to victims:
“Thank you. What would you like me to know?”
“Leave your pain here, and go out and do your magnificent things.”
“You are so strong and brave.”
“The military has not yet come up with fiber as strong as you.”
“Mattel ought to make toys so that little girls can look at you and say, ‘I want to be her.'” Thank you so much for being here, and for your strength.”
I’ve taught Tom Tyler’s four elements of procedural fairness now for many years: (1) voice, (2) respect, (3) neutrality, and (4) trust/trustworthy authority. Ultimately, you want court participants to feel that they’ve had the opportunity to speak, were treated with respect, and listened to. You also want them to feel that the person wielding the authority is sincere and caring, genuinely out to do the right thing.
Judge Aquilina seems to have hit it out of the park in making sure that victim voices were heard, giving them every ounce of closure that a sentencing hearing can provide, and conveying the very real sense that she sincerely cares about each of them. None of that is easy to do.
I haven’t had a chance to watch the hearings—I have a full-time “day job” as an appellate judge. So I can’t say whether everything she has done was the right thing or the best practice. Legitimate questions can be raised from media accounts on the neutrality element. After all, she still must sentence Nassar, and she must be careful both to be—and to appear—fair in doing so. I am not suggesting she has failed on that point; I simply haven’t seen enough to know. As Professor Stephen Gillers notes in the New York Times article, though, this is a sentencing hearing, not a trial, and Nassar has already pleaded guilty to serious state and federal crimes. So it’s fair for the judge to take that into account at this hearing and even to comment on it.
Set the neutrality issue aside, though, because the significance of this hearing for other judges and those trying to make courts work better comes in the way Judge Aquilina has dealt with the victims. She has provided a model of procedural justice—providing voice, treating victims with respect, and showing that the judge presiding sincerely cares about each of them. And she has done it all in a public courtroom. Those who train judges should carefully look through transcripts or news accounts of this sentencing hearing. Examples of procedurally fair practices abound.
Over the past year, we’ve been talking with authors of recent studies on procedural fairness, asking them to describe their research. Today, we have an interview with three researchers about three different projects, all on the topic of victims and procedural fairness.
Cortney Fisher, our first guest, has a Ph.D. in criminology and criminal justice at the University of Maryland. She talks about the research she did for her dissertation on victim satisfaction.
Our other two guests are Stacy Haynes (Associate Professor of Sociology at Mississippi State University) and Alison Cares (Associate Professor of Sociology and Criminology at Assumption College). Together, they have studied how victims and offenders perceive fairness and view the purpose of punishment. They also worked together on a literature review on restitution and the effect it has on victims’ feelings of satisfaction.
The researchers point out that all victims—regardless of demographic factors—are generally looking for the same things: information about the process, the chance to give input, and the sense that they’ve been heard by the court and the offender. They’re more interested in procedural justice than distributive justice. They do want to make sure that the offender doesn’t commit a crime again, but they aren’t necessarily more satisfied by seeing offenders get harsher sentences. They want to believe that the offender will be deterred from futures crimes for some reason other than being locked up.
Offenders, as it turns out, have some of the same desires. They tend to agree with victims on the purposes of punishment as well as whether the procedures and outcomes in their cases were fair. Offenders also benefit from having things like restitution explained to them and are more likely to pay if they realize that the money is going to the victim to help offset the damage they caused.
Restitution is an important part of helping victims feel restored, but even when victims don’t receive restitution, making sure they feel respected and heard can aid the restoration process. Since police officers and judges might not have much time to sit down with victims, the researchers encouraged more widespread use of victim advocates. A victim advocate can explain the process to victims and talk with them about their experiences, questions, and needs. Especially when victim advocates come from a community organization (rather than the prosecutor’s office or the court), they can independently represent victims and devote more time to them than a judge would be able to.
The researchers offer some practical tips for judges and tackle questions like how to consider input from victims while still making sure offenders receive equal justice.
We hope you find this interview useful and interesting. If you’d like to read more, the three studies the researchers discuss are cited below.
In our last post, we looked at the effectiveness of procedural-fairness principles among adolescent offenders. This time we talk with someone researching another group of offenders—inmates in a women’s prison. Thomas Baker and his colleagues surveyed these women to determine the factors that lead to a greater sense of obligation to obey the law. For one, the researchers wanted to determine whether the relationship demonstrated in other studies between perceptions of fair treatment and willingness to obey the law would hold true for this group.
And it did. They found that female offenders who saw the courts as more procedurally just reported a significantly greater obligation to obey the law.
But this study also found a new factor that might be important—the racial similarity or difference between the offender and prosecuting attorneys. For white female inmates, those who had a white prosecutor were significantly more likely to perceive the courts as procedurally just. Nonwhite female inmates perceived the courts as more fair if they encountered a minority prosecutor, regardless of whether the prosecutor was black or Hispanic.
If you came across this title in our quarterly research report, The (Ir)relevance of Procedural Justice in the Pathways to Crime, the title alone might have surprised you. It surprised us too—so we decided to talk to the author for our second interview on recent procedural-justice research. As it turns out, the article doesn’t argue that procedural fairness isn’t important. In fact, as author Megan Bears Augustyn explained, procedural fairness is relevant to many offenders, and it is important for ethical reasons. But when it comes to increasing compliance and satisfaction, she says fair practices don’t have the same effect on everyone, at least in her study with adolescents.
Augustyn has researched adolescent behavior as well as procedural fairness, and she noticed that the effects of procedural fairness were not as strong among adolescents as among adults. She wondered if the results would break down differently for different types of adolescent offenders as well—those who start offending at an early age (usually driven by mental-health issues or problems at home) and those who don’t start offending until they are teenagers (often motivated by peer pressure).
Sure enough, Augustyn found that fair treatment didn’t have much of an effect on the early-onset offenders. Their reasons for offending were too complex to address by simply showing them respect and giving them voice. For the more limited adolescent offenders, however, fair treatment could affect attitudes and help curb illegal behavior.
Augustyn discusses this research and her conclusions in more detail in the interview linked below—available in both extended and edited versions. If you’d like to download the files, just right click the link, then click “Save target as.” Once again, the interview was done by Justine Greve (M.A., American Studies), a staff member with the Kansas Court of Appeals.—Steve Leben
Procedural Fairness For Courts and Judges 