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.” SeeFigueroa, 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
This blog is full of suggestions for judges who want to be fair and to convey a sense of fairness in the courtroom. But what about judges who want to be wise? Will following tips on procedural fairness help them too? In our latest interview, psychology professor Heidi Levitt suggests that the road to wisdom runs right alongside the path of procedural fairness.
The interviews generated a long list of behaviors and attitudes associated with wise legal decision making—traits that will sound familiar to anyone who has read about procedural fairness. The judges emphasized giving litigants respect and voice, explaining court procedures, and expressing compassion for parties while still upholding the law. They valued curiosity, thoughtfulness, and flexibility to consider individual circumstances. They felt that it was important for judges to be engaged in each case—not only giving their full attention to the parties and the law but also recognizing and dealing with any emotions or bias that might arise.
Wise judges developed strategies for dealing with situations where their own values conflicted with the law or where they felt that the correct legal outcome was not necessarily the fair one. They tended to prefer rehabilitative sentences over punitive ones when possible. They also talked about the sense of isolation judges can feel and suggested seeking out the support and community of other judges.
Levitt and Dunnavant asked their subjects how judicial educators might promote wisdom in law school and beyond. The judges suggested placing more emphasis on pretrial problem solving, interpersonal skills, emotional intelligence, and social justice. They felt that increasing the diversity of the judicial profession would be helpful as well.
As with the other podcast interviews on the Procedural Fairness Blog, this interview was done by Justine Greve (M.A., American Studies), a staff member at the Kansas Court of Appeals. Listen to her interview with Levitt (just click one of the links below) and think about your own experience. Are the wise judges you know also ones who strive to be procedurally fair?
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
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
We’re introducing a new feature of the Procedural Fairness Blog today. For new research on procedural fairness, we’ve already recommended our quarterly research reports. One of the authors of the quarterly reports, Justine Greve (M.A., American Studies), a staff member at the Kansas Court of Appeals, is going to put her past training in public radio to work for us by interviewing authors of some of the new research we think you’ll find of interest.
Her first interview (available in either an abridged or extended format) is with Kelly Frailing and Diana Carreon, who did an interesting study of a drug court in Laredo, Texas, where most of the population is Hispanic–and generally bilingual.
After watching judges and participants switch between Spanish and English at the Laredo drug court, Frailing and Carreon wanted to find out how being able to speak with the judge in Spanish influenced people’s perceptions of fairness in that court. They found that participants saw bilingualism as a positive feature of the court, even reporting that they felt the ability to communicate in Spanish was important to success in their case.
This may seem unsurprising in a community where the vast majority of the population is Hispanic: anyone would feel more comfortable speaking to a judge in his or her primary language. But almost all of these drug-court participants were bilingual from an early age, fluent in English as well as Spanish.
In the interview, Frailing and Carreon discuss their study and interpret their findings, suggesting that language in a court setting may mean more to people than just being able to understand and to be understood. Steve Leben
For more than a year, our website has been posting a Quarterly Research Report featuring the most notable scholarship we’ve found in procedural fairness and procedural justice. The report is edited by Justine Greve, M.A., a staff member at the Kansas Court of Appeals, and Shelley Spacek Miller, J.D., a staff member at the National Center for State Courts.
The Summer 2015 report has just been posted, and one interesting study compares views about police legitimacy among residents of St. Louis County, Missouri, in interviews taken before and after the August 2014 shooting of Michael Brown. Researchers from Southern Illinois University Carbondale had done extensive interviews of nearly 400 people living in high-crime and disadvantaged parts of St. Louis County for a study on policing in 2012 and 2013. Most of the respondents in that survey lived within six miles of where Brown was killed. So the researchers followed up with new interviews of the same people in September and October 2014 to compare public perceptions before and after Brown’s shooting.
The 2014 questioning came immediately after protests, looting, and violence that followed the Brown shooting. The interviews asked questions related to police legitimacy (defined by the researchers as “a view that police authority is valid and to be respected and adhered to”) and to trust in police and procedural justice (defined by the researchers as “a belief that police act fairly, impartially, and respectfully”).
Overall, perceptions of both police legitimacy and trust/procedural justice declined (by 5% and 17% respectively). But the perception rose slightly for nonblack residents (up 2% for each) while falling significantly (by 8% and 26%) for African-American respondents. Views also diverged in feelings about the public and police responses. A majority of nonblack respondents disagreed with the public’s response to the shooting, while a majority of blacks agreed with it. A majority of nonblack respondents agreed with the police response to protests, looting, and riots in the area, while a majority of black respondents did not.
This study, of course, captures views from only a small geographical area, but the respondents certainly intensely experienced the events of that time. It’s one of many new research articles and reports that you can find in the latest Quarterly Research Report.
The Center for Court Innovation (CCI) is seeking courts to participate in an assessment of each court’s procedural-fairness practices. CCI is accepting applications until June 12 from local courts with the jurisdiction to hear criminal cases.
The official Request for Proposals gives full details on the project, but CCI says that it hopes to advance procedural-justice goals “by (1) highlighting promising practices for the field at large, (2) helping jurisdictions identify problem areas, and (3) outlining short- and longer-term plans to implement appropriate interventions.”
CCI suggests that this project “is targeted to criminal courts interested in deepening their understanding of procedural justice and examining whether and how their current practice promotes the core elements of procedural justice: voice, respect, understanding, and neutrality.” The selected sites will gain the feedback of outsiders who are familiar with the background research in this area.
The project will focus on four key areas at each site:
· Providing information about court procedures to court users and to the community;
· Fostering a user-friendly courthouse environment;
· Developing mechanisms to solicit and respond to feedback from staff and court users; and
· Improving the communication strategies used by judges and other court staff.
Project staff will provide suggestions for improving practices in each court.
Procedural Fairness For Courts and Judges 