Ending the Year Right: Building Procedural-Fairness Skills   Leave a comment

You’ve made it to the Procedural Fairness Blog, so we know you’re interested in this subject. As one year ends and another begins, many of us think about New Year’s resolutions that might lead to self-improvement in the coming year.

So we’ll wind up 2013 and start 2014 on the Procedural Fairness Blog with things judges might do to raise their game from a procedural-fairness perspective.

Step One is going to be easy: Watch a 90-minute online webinar with Minnesota trial judge Kevin Burke on Wednesday, December 11, at 2:00 p.m. Eastern time. Just click the link for registration information.

Kevin has made more presentations on procedural fairness to judges in the United States, Canada, and other countries than anyone else. And he helped to develop the skills of judges throughout the Minneapolis trial bench when he served multiple terms as the chief judge there. While chief judge, Kevin had social scientists on the court staff who studied the impact of procedural-fairness methods on those who came through the courts, including criminal defendants receiving probation orders and civil defendants receiving protection-from-abuse orders.

Kevin’s specific presentation on December 11 will focus on the handling of self-represented litigants, an increasing priority for all judges. Kevin will cover all the basics of procedural fairness; then he’ll apply these principles to the handling of the self-represented.

Kevin’s own docket these days is family-law cases—divorces, child custody, and protection-from-abuse cases—where dealing with the self-represented is a daily occurrence. Join him on December 11 for both an overview of procedural-fairness concepts and some helpful thoughts about effectively dealing with self-represented litigants.

This webinar is sponsored by the Center on Court Access to Justice for All, a project of the National Center for State Courts.

(Note: the link to access the webinar has changed.)

Steve Leben

The Power of Shared Values: Procedural Fairness and the Red Hook Community Justice Center   Leave a comment

An evaluation report published last week concluded that the Red Hook Community Justice Center located in Brooklyn, New York, reduces recidivism and crime in the geographic area it serves. The evaluators conclude that a key factor is the public’s view of the court—and its judges—as legitimate:

“[B]ased on the available evidence, it appears that the Justice Center’s impact on crime and recidivism results primarily from the Justice Center’s ability to project its legitimacy to offenders and the local residential community rather than from strategies of deterrence or intervention.” (Lee et al, 2013, p. 164.)

This finding is consistent with a growing body of research showing that problem-solving courts are perceived by offenders as more procedurally fair than regular courts, and it is this difference that explains why offenders in adult drug courts fare better in terms of compliance with court orders and in recidivism.

This comprehensive evaluation of a community court offers a new dimension to our understanding of the role of the courts in securing voluntary compliance with the law. Ethnographic and other components of the evaluation demonstrate the extent to which the Justice Center is regarded as a truly local institution that shares the values of local residents. Recent procedural fairness research on policing in England and Wales emphasizes the importance of a “moral alignment” existing between the criminal-justice system and the public as a pathway to legitimacy and compliance. The study found evidence that the public’s perception that they have shared moral values with the police promotes voluntary compliance with the law, and that this perception complements the separate shared norm that there is a perceived obligation to obey police-officer commands, which is itself fostered through procedural-fairness principles. Thus, the public perception of shared moral values with those in authority complements the effect of authorities making decisions in what is perceived as a procedural fair manner.

Those combined forces—shared moral values and procedural fairness—seem to be at work in the Red Hook Community Justice Center. Before discussing that, though, some background is in order.

The Red Hook Community Justice Center opened in 2000 to serve the physically and socially isolated neighborhood of Red Hook. Planning for the Justice Center began at a time when the area was regarded as one of the crime-infested and run-down areas in New York City. The neighborhood is dominated by one of the largest public housing developments in the country. As part of the recent evaluation project, a team of urban ethnographers from John Jay College carried out extensive observations in the area served by the Justice Center. They also surveyed local residents and offenders. Other members of the research team interviewed key individuals from local organizations, such as the tenants’ association. The findings about procedural fairness stem mainly from evidence collected in that manner.

The following aspects of the Justice Center contributed to building legitimacy in the eyes of the local community.

Jurisdiction: The Justice Center is a multijurisdictional court, with the assigned judge hearing criminal misdemeanors, housing cases, and juvenile-delinquency cases. Inclusion of the landlord-tenant cases allows the Justice Center to make a difference in one of the core concerns of local residents: the quality of their housing and their relationship to the New York Housing Association. Through the housing court, the Justice Center made an immediate contribution to residents’ quality of life and provided them with a counterweight to the policies and actions of the New York City Housing Authority.

Community Engagement: The Justice Center and its staff became key participants in local initiatives—for example, leading efforts to reclaim a nearby park from drug dealers; sponsoring a baseball league and establishing other programs aimed at local youth; and making the resources in the Justice Center available to all residents.

The  Judge: One judge has presided over the Justice Center since it opened.  His courtroom interaction with offenders and their families exemplifies procedural-fairness principles. In the Center’s early days, the judge made a lasting impression by his willingness to personally look at the conditions in public housing units at dispute in a case. He is highly visible in the neighborhood not just by regularly attending the meetings of local groups but also walking through the neighborhood.

The Courthouse Culture: Staff located at the Justice Center are expected to follow norms for interacting with visitors to the courthouse, whether they come as defendants or otherwise, that reinforce a sense of procedural fairness.

The evaluation included a formal test of the degree to which the observed reduction in recidivism rates could be attributed to either deterrence through more certain and meaningful punishment or intervention by providing treatment programs. Neither explanation received support. The evidence, although indirect, points solidly to the legitimacy the Justice Center has accumulated by demonstrating that it shares community values and practices procedural fairness in its decision making.

The findings of the evaluation are available in A Community Court Grows in Brooklyn: A Comprehensive Evaluation of the Red Hook Community Justice Center. Both the full report and an executive summary are posted.

David Rottman

How Low Public Trust Threatens the Legitimacy of Court Decisions   Leave a comment

Trust is an essential component of procedural fairness, which, in turn, has been shown to be a key source of legitimacy for decision-makers. All public institutions now face serious skepticism from the public about their trustworthiness. However, a trust  deficit – and the resulting lack of legitimacy – are of particular threat to the judiciary. Legitimacy is essential if courts are to be respected and, indeed, if court orders are to be obeyed. Simply put, failure to maintain and enhance the legitimacy of court decisions imperils the judiciary as an institution and the vital role assigned to the judiciary in our Constitutional tradition.

The threat is real. Today, 75% of the American public thinks judges’ decisions are, to a moderate to significant extent, influenced by their political or personal philosophy. Of course, judges have a range of philosophical views and exercise discretion, so some differences of opinion among judges are to be expected. But 75% of the American public also believes  judges’ decisions are, to a moderate to significant extent, influenced by their desire to be appointed to a higher court.

Two recent articles explain the potentially grave implications.

First,  Politico recently published a contribution by law professors Charles Geyh and Stephen Gillers advocating for a bill to make the Supreme Court adopt a code of ethics. They argue:

[I]t would be a mistake for the Court to view the [ethics] bill as a challenge to its power. It is rather an invitation. No rule is thrust on the justices. Under the … bill, the justices are asked to start with the code governing other federal judges, but are then free to make ‘any amendments or modifications’ they deem ‘appropriate.’ A response that says, in effect, ‘We won’t do it because you can’t make us’ will hurt the court and the rule of law.

Second, Linda Greenhouse, a regular commentator on the New York Times Blog “Opinionator,” recently wrote this post about the Foreign Intelligence Surveillance Court entitled Too Much Work?. Greenhouse writes:

As Charlie Savage reported in The Times last month, Chief Justice John G. Roberts Jr. has used that authority to name Republican-appointed judges to 10 of the court’s 11 seats. (While Republicans in Congress accuse President Obama of trying to “pack” the federal appeals court in Washington simply by filling its vacant seats, they have expressed no such concern over the fact that the chief justice has over-weighted the surveillance court with Republican judges to a considerably greater degree than either of the two other Republican-appointed chief justices who have served since the court’s creation in 1978.)

What do these two pieces mean for judges? Both articles highlight how the judiciary itself, if not careful, can contribute to the erosion of public trust in our decisions. To be sure, the erosion of the legitimacy of judicial decisions is not entirely the fault of the Supreme Court, nor of judges in general.  The media, for example, often refers to which President appointed a judge as a shorthand way to explain a decision.  But that is, in part, why Ms. Greenhouse’s piece is important. The Chief Justice is recognized as a brilliant man. He and every other judge in the United States know the inevitable shorthand the media will use to describe judges and to explain their decisions. And so the Chief Justice, the members of the United States Supreme Court, indeed every judge in this country needs to be particularly sensitive to what we are doing that might either advance trust in courts or contribute to the erosion of the legitimacy of our courts. The bottom line is: Appearances make a difference. There will be decisions by judges at every level of court that test the public’s trust in our wisdom. It is therefore imperative that judges act in a manner that builds a reservoir of goodwill so that people will stand by courts when a decision is made with which they disagree. There may have been an era when trust in the wisdom and impartiality of judicial decisions could be taken as a given. But if there was such an era, we no longer live in it. Trust and legitimacy today must be earned.

Kevin Burke

State-Court Leaders Urge Action on Procedural-Fairness Agenda   Leave a comment

Two of the most influential organizations of American state-court leaders have adopted a resolution urging greater implementation of procedural-fairness principles throughout the court system.

Meeting jointly in Burlington, Vermont, the Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA) adopted a resolution challenging state supreme courts and state-court administrators to consider employing several strategies designed to promote procedural fairness. Among the recommendations are:

· Measuring litigant satisfaction in the area of fairness using a tool such as the “access and fairness” measure that is part of the National Center for State Courts’ CourTools program.

· Encouraging the integration of research on procedural fairness and effective decision-making processes into judicial-education programs.

· Identifying opportunities for judges to get honest feedback and mentoring.

· Practicing procedural-fairness principles in the treatment of court personnel.

· Championing procedural-fairness principles in messages to the public, the media, and other branches of government.

· Holding judges and court staff accountable for operating courts in a manner consistent with procedural-fairness principles—treating everyone with respect, allowing the opportunity to be heard, and providing adequate explanations of court orders.

The resolution noted several specific resources developed to help courts in addressing procedural fairness—including this website! Among the other resources specifically mentioned were two American Judges Association white papers: Procedural Fairness: A Key Ingredient in Public Satisfaction (2007) and Minding the Court: Enhancing the Decision-Making Process (2012).

The resolution was jointly adopted by the Conference of Chief Justices and the Conference of State Court Administrators on July 31, 2013.

Wanted: Guest Blog Entries Regarding State Procedural-Fairness Activities! On a related note, we want to stay on top of activities to promote procedural fairness. Last month, we were pleased to present a guest blog entry from Alaska Chief Justice Dana Fabe, who wrote about the new “Pledge of Fairness” that was posted earlier this year in every Alaska courthouse. If there have been recent activities in your state that others might find of interest, please check out the process for submitting a guest blog post here at the Procedural Fairness Blog. We hope to hear from you soon.

Procedural Justice Research Applied to Judicial Behavior in Settlement Sessions   Leave a comment

Guest Post by Bobbie McAdoo, Professor, Hamline University School of Law

A new book, The Multi-Tasking Judge (Thomson Reuters, Tania Sourdin and Archie Zariski, eds.) contains a chapter that readers of this blog will find interesting: “The Application of Procedural Justice Research to Judicial Actions and Techniques in Settlement Sessions.” (Available to download at http://ssrn.com/abstract=2282055)  The co-authored chapter (Nancy Welsh, Professor at Penn State Dickinson School of Law, Donna Stienstra, Senior Researcher at the Federal Judicial Center, and Bobbi McAdoo, Professor at Hamline University School of Law) contains a work-in-progress questionnaire designed to assess lawyers’ perceptions of the procedural justice offered in judicial settlement sessions. The questionnaire could potentially have multiple users: judges seeking confidential feedback on their management of settlement sessions; individual courts or court systems seeking systematic information regarding their judges’ settlement efforts; and those working on larger empirical research projects.

The questionnaire asks about: 1) the concrete judicial actions that occur during settlement sessions; 2) the relationship between these concrete actions and lawyers’ (and clients’) perceptions of procedural and substantive justice; and 3) the influence of contextual factors upon such perceptions (e.g., whether the settlement judge is the presiding judge, whether the judicial action occurred in joint session or caucus, etc). The lawyer questionnaire is the first of a planned set of questionnaires on judicial settlement that will eventually include questionnaires for clients and judges.

Readers of this blog are invited to send comments and suggestions to the authors for the next iteration of the questionnaire; and/or to offer assistance in pre-testing the questionnaire. Nancy Welsh is at nxw10@psu.edu; Donna Stienstra is at dstienst@fjc.gov; Bobbi McAdoo is at bmcadoo@hamline.edu.

The chapter also provides an interesting brief contextual history of judicial settlement in the U.S., including the evolution of relevant rules of civil procedure and judicial ethics provisions and the current state of judicial performance evaluation.

Alaskans Receive Court’s “Pledge of Fairness”   Leave a comment

ALASKANS RECEIVE COURT’S “PLEDGE OF FAIRNESS”

Guest Post by Chief Justice Dana Fabe, Alaska Supreme Court

As jurists, we know that fairness is key to the work we do. If we expect people to place their trust in courts, they must feel confident that judges and court staff are performing their duties in a fair manner. Alaska’s judges are so fortunate to have benefited from the knowledge and leadership of Judge Kevin Burke and Judge Steve Leben, who have provided training on the issue of “procedural fairness” during our judicial conferences. And we have gained additional understanding of this issue through the efforts of David Rottman of NCSC, Professor Tom Tyler of Yale Law School, and the website www.proceduralfairness.org

As a judge for 25 years – eight in the trial courts and seventeen on the appellate bench – I welcome these vital efforts to promote fairness in our courts. In these times when public discourse about the role of courts is too often fueled by misinformation and mistrust, it’s important that we do what we can to remind the public – and ourselves – about the special duty of courts to uphold the rule of law in a manner that is fair to all concerned.

In my 2013 State of Judiciary address before a joint session of Alaska’s legislature, I put it this way: “What people should expect from a judge is courtesy, respect, and thoughtful consideration.

And what they should expect from the process is to understand what happened, and why.” To promote a climate of fairness in courts across Alaska, I announced a “Pledge of Fairness” to the people of our state, as follows:

PLEDGE OF FAIRNESS
The fundamental mission of the Alaska Court System is to provide a fair and impartial forum for the resolution of disputes according to the rule of law. Fairness includes the opportunity to be heard, the chance to have the court process explained, and the right to be treated with respect. The judges and staff of the Alaska Court System therefore make the following pledge to each litigant, defendant, victim, witness, juror, and person involved in a court proceeding:

We will LISTEN to you

We will respond to your QUESTIONS about court procedure

We will treat you with RESPECT

This message has now been made into a large poster that will be prominently displayed in each of our 44 court locations statewide. Because Alaska is one of the most diverse states in the country – and is home to our nation’s most diverse neighborhood (Mountain View, in Anchorage) – the poster includes text not only in English, but in the top six languages for which interpreter services are most often requested: Hmong, Korean, Russian, Spanish, Tagalog, and Yupik.

As Judge Burke has pointed out, if you go into a hospital lobby, you will often notice a sign containing a clear statement of your rights as a patient: that you are entitled to be treated with dignity and respect and to have your questions answered. Alaskans who come to court should have the same assurances.

It is my hope that this pledge – displayed across our state and translated for as wide a reach as possible – will help elevate the importance of fair treatment among all who participate in the court process. As judges, we may take the duty of fairness for granted, as steeped as we are in basic principles of due process. But for members of the public, fairness is never a given. It’s a promise they hope will be kept each time they enter the courthouse door.

Posted July 8, 2013 by proceduralfairness in Courts

Tagged with , ,

Court Applications for Free Procedural-Fairness Training Are Due June 14   Leave a comment

​The Center for Court Innovation (CCI) has obtained grant funding to provide training to some trial courts on procedural-justice principles. The project is a partnership between CCI, the National Judicial College, and the U.S. Department of Justice’s Bureau of Justice Assistance.

​The training is explicitly based upon Professor Tom Tyler’s work in procedural fairness, and CCI has dubbed the program “The Improving Courtroom Communication Project.” It will attempt to improve procedural justice in a criminal-court setting. The training curriculum will consist of five modules:
• The Role of Procedural Fairness, covering research findings on the impact of procedural fairness in various justice-system contexts;
• Verbal Communication, including how written and oral communication in the courtroom affects fairness perceptions;
• Nonverbal Communication, including how body language, tone, and other nonverbal cues affect fairness perceptions;
• Considering Special Populations, including how communication can be adapted to meet the needs of various court participants; and
• Implementing Procedural Fairness, including group idea-generation and the development of individualized action plans.

​The curriculum was tested in a Milwaukee pilot-training exercise. CCI is now accepting applications and will select three criminal courts to participate in this training program, which will be free of charge to the selected courts. To be eligible, applicant sites must be a local or state court with jurisdiction to hear criminal cases (including multi-jurisdictional courts).

Full information on how to apply for the training can be found at the CCI website. Applications must be received no later than 5 p.m. Eastern time on Friday, June 14, 2013.