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
From time to time, it’s useful to take stock of some of the evidence that demonstrates that the judge who spends the time to learn procedural-fairness principles and who shows the discipline to practice them regularly is doing something valuable. Toward that end, let’s consider a study of drug courts operating in 29 different locations around the United States.
Like many other studies, this one concluded that drug courts do produce both significant reductions in relapse to further serious drug abuse and significant reductions in criminal behavior. But the researchers asked a critical question: Why does this occur? And that’s where the principles of procedural fairness came squarely to the fore:
“Role of the Judge: The primary mechanism by which drug courts reduce substance use and crime is through the judge. Drug court offenders believe that their judge treated them more fairly than the comparison group, including demonstrating greater respect and interest in them as individuals and greater opportunities to express their own voice during proceedings. Furthermore, when offenders have more positive attitudes toward the judge, they have better outcomes. This was true across all offender subgroups when examining demographics, drug use history, criminality, and mental health. A separate analysis drawing upon the results of structured courtroom observations found, similarly, that drug courts whose judge was rated by members of the research team as exhibiting a more positive judicial demeanor (e.g., respectful, fair, attentive, enthusiastic, consistent/predictable, caring, and knowledgeable) produced better outcomes than other drug courts. Both analyses reaffirmed the central role of the judge.”
Drug courts by design provide greater voice to defendants and opportunities for judges to show respectful treatment of defendants. Judges who do a good job in carrying out these roles get better results—and this appears to be true across various demographic groups. Sounds like a winner to me.
The study, reported in 2011, was done by the Urban Institute, the Center for Court Innovation, and RTI International. The Executive Summary is a quick and easy read.
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.
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 judgehas 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.
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 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.
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.
There is ample material about procedural fairness on ProceduralFairness.org for judges and court administrators to start the process of making themselves and their courts more effective. The question is where to begin that process. There are two levels on which procedural fairness principles can be implemented in order to begin improving court outcomes and public satisfaction.
Most immediately, the individual judge can become more adept at demonstrating the criteria of procedural fairness during their interactions with litigants, lawyers, witnesses and others. Relevant tools on ProceduralFairness.org include descriptions of programs that videotape judges while on the bench to provide them feedback to use for self-improvement, as well as video and print resources that can be used to create judicial education courses on procedural fairness. The “Resources” tab includes “tips for judges” that can serve as a check-list to guide their behavior. Similarly, individual court administrators can become more effective by embracing procedural fairness principles in their interactions with subordinates.
Second, an entire trial court or court division can revise its policies and procedures in ways that seem likely to promote behaviors that are perceived as procedurally fair. These changes can be subtle but still highly effective.
Whether the target for change is the individual judge or an entire court, a possible starting point is to reflect on how knowledge of procedural fairness can help you make sense of successes in the past. Here are two examples of hindsight, brought on by learning about procedural fairness. Both examples come from a series of conversations with presiding trial court judges initiated to learn their reaction to a comprehensive judicial branch-wide program promoting procedural fairness principles.
In the first example, the presiding judge of a medium-size court (circa 30 judges) was already a believer in the program. When she became presiding judge, she was alarmed by the pile on her desk of phone message slips and letters, all containing complaints from small claims litigants that they had not had their day in court. When she asked her assistant about the pile, she learned that that such communications were constantly flowing in. Along with several other judges and her court administrator, the presiding judge went through the complaints. They began to notice a pattern – many of the litigants felt that their case had not been adequately considered. The judges identified as the problem their court’s practice of not giving small claims case decisions from the bench as contributing to this sentiment. Instead of giving the decisions from the bench, the court sent litigants form letters, some weeks after their trial, with the equivalent of “won” or “lost” checked off. A change to the letter remedied the problem. The judges identified five or so main reasons that a small claims litigant might end up on the losing side. With the relevant sentences inserted in each letter, the flow of complaints dwindled and then virtually ceased. The new, reasoned approach communicated that the decisions had been reached through a fair process. For the judges, learning about procedural fairness theory made sense of the success of their revised approach to small claims court.
Another “home grown” example of procedural fairness is a practice that surfaced in conversation with the presiding judge of another medium-sized trial court in the same state. Her court has adopted the practice of formally swearing in all new staff as court employees. The presiding judge personally administers the oath, with other judges and court staff as an audience. For this judge, hearing about procedural fairness made sense of the apparent benefits the court has gained from the inclusive, respectful manner in which it treats its employees.
In sum, a look to past experience may be a useful starting point for those considering the potential value of taking a procedural fairness approach to personal improvement or court reform. Ask yourself what has worked and what has not worked, and think if the lens of procedural fairness offers insights into how to do a better job.
David Rottman
In my blog post last week I looked at the way in which serving on a trial jury is associated with a strong perception that trial courts decide cases in a procedurally fair manner. Former jurors report coming away from jury service holding a higher level of trust and confidence in the courts than they had beforehand.
Can we identify other court experiences that are associated with strong perceptions of experiencing procedural fairness? Available research points to problem solving courts as the most promising candidate. Defendants in drug treatment courts (DTC) report experiencing higher levels of procedural fairness than do comparable groups of defendants processed on the same kinds of charges through traditional criminal courts. The available research identifies that the relative advantage in defendant perceptions of procedural fairness is a key, and perhaps the primary, reason why drug court defendants have lower recidivism rates than their counterparts in traditional courts. One relevant study is a DTC evaluation conducted by prominent criminologist Denise Gottfredson in the criminal courts of Baltimore, Maryland. Drug treatment court-eligible defendants were randomly assigned either to the DTC or to the traditional court. DTC defendants were less likely to re-offend: “More specifically, [the study] suggests that the DTC program, especially the judicial hearings, contributes to an offender’s perception of fairness and due process, thereby increasing his or her willingness to fulfill his or her part of the negotiated DTC agreement.” (Source: D. Gottfredson et al., How drug treatment courts work: an analysis of mediators, Journal of Research in Crime and Delinquency, 2007, p. 28).
The recently concluded Multi-Site Adult Drug Court Evaluation supports the explanation for the lower recidivism rate associated with DTCs put forward by Gottfredson and her colleagues. Although labeled”attitude to the judge,” and associated by the report writers with the field of “Therapeutic Jurisprudence,” the scale is based on DTCs’ perceptions of the “judges competence, impartiality and concern for their [defendants] general well-being.” The report concludes that “the most striking finding in this research is the power of the judge, and judicial interactions with the offenders, to promote desistance.” (Source: Chapter 6, by John Roman et al., “How do Drug Courts Work?”, pp. 94-120). That sounds like a procedural fairness effect.
These findings from research on drug courts appear to be generalizable to at least some of the other types of problem-solving courts. Research conducted by the Center for Court Innovation in community courts and in housing courts also finds that specialized problem-solving courts are viewed as more procedurally fair by litigants than are traditional court dockets that process similar cases. Thus far, however, only drug treatment courts provide solid evidence that there is a direct link between enhanced perceptions of procedural fairness and a reduction in recidivism and greater compliance with court orders.
Generally, however, the impact of direct experience with the courts is more hit or miss for civil litigants and criminal defendants. In fact, the bulk of research suggests that court experience is as likely to diminish as it is to increase trust and confidence in the courts. The available research shows that procedural fairness is least likely to be perceived in high volume courts, with defendants in traffic court, on average, reporting the lowest levels of procedural fairness and of trust and confidence in the courts. (See, for example: D. Rottman, Trust and Confidence in the California Courts: Findings and Recommendations, Judicial Council of California, 2005)
My next blog post will consider what lessons we can draw from the evidence available on what is conducive to high and what to low levels of perceived procedural fairness.
Procedural Fairness For Courts and Judges 