Archive for the ‘Problem-Solving Courts’ Tag

Evidence That Practicing Procedural Fairness Gets Better Results    Leave a comment

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.

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

Procedural Fairness in Australian Children’s Court Cases   Leave a comment

Guest Blogger: Michael King

Procedural justice, therapeutic jurisprudence and problem-solving or solution-focused courts have brought increased focus on the actions of judges and lawyers in court in terms of their potential to enhance or diminish litigants’ and public respect for court orders and the justice system. With this development has come increased appreciation of the significance of language, body language and processes in the legal process.

A case decided by the Supreme Court of New South Wales illustrated how what is regarded as a common courtesy in general society when used in court may be seen to be alienating or even offensive by a party or witness to the proceedings. The case reminds judges and lawyers against complacency and of the need to be careful in their selection of language and use of mannerisms and processes.

The case involved an application to the Supreme Court in its inherent wardship jurisdiction for an order that a child be returned to the care of the mother. Exercising jurisdiction under statute, a magistrate sitting in the Children’s Court of New South Wales had placed the child in the care of the Minister for Human Services. Typically children’s courts in Australia exercise both criminal and welfare jurisdiction over children. If a child is need of care and protection, authorities can apply to the court for an order placing the child in State care or seek other orders.

Much of the judge’s decision involves the merits of the application, but the judge also examined the actions of the magistrate and one of the lawyers in court and their effect on the mother of the child. The first issue related to whether the court had properly included the mother in the process leading to the court making an interim care order. The judge held that it had not and suggested that in the process, the court may have contributed to the mother’s hostile attitude towards the Department for Human Services. The judge acknowledged the pressures of a busy court list, but stressed that even with such pressures courts should meaningfully include parties in the decision-making process.

The second issue related to certain practices used by counsel at the final order hearing. Essentially, the judge frowned on the practice of lawyers and the magistrate exchanging “good morning” or of a lawyer saying “good morning” to a witness, a practice that was used at the final order hearing.

Here are relevant passages of the judge’s decision:

The history of the proceedings

[6] The Department applied to the Children’s Court on 28 April 2009 for an interim order under s 79(1) Care Act allocating parental responsibility for Anna to the Minister. I have read the transcript. The application came before the Court on 29 April. Present were Ms Wilson, who had given birth only two days before, the Department’s solicitor and Mr Chapman, solicitor, who represented the interests of Anna. How Mr Chapman came to be appointed as Anna’s separate representative was not explained to Ms Wilson.

[7] Ms Wilson said that she would like an adjournment to enable her to instruct a solicitor. After some discussion with the Department’s solicitor and Mr Chapman, the Magistrate made an interim care order and stood the proceedings over 11 May. Unfortunately, Ms Wilson was not even asked by the Magistrate what was her attitude to the making of an interim care order. The transcript shows that the discussion seemed to be confined to the Magistrate, the solicitor for the Department and Mr Chapman, and it appears that Ms Wilson was entirely overlooked. One can imagine that Ms Wilson, without the benefit of legal representation and in a state of some shock at having her new-born baby taken from her two days previously, was in a vulnerable and confused state at this hearing. The fact that she was not even consulted as to the Magistrate’s proposed course of action and that its consequences were not explained to her by the Magistrate could well have given her an impression that her rights were being disregarded entirely.


Some observations about the conduct of the case in Court

[102] As I said at the beginning of this judgment, some aspects of the case call for comment.

[103] The first is the way in which the first hearing in the Children’s Court on 29 April 2009 was conducted. A reading of the transcript left me with the strong impression that what had occurred might well have contributed significantly to the hostility which Ms Wilson demonstrates to the Department and to her apparent lack of co-operation in a number of directions hearings in the Children’s Court.

[104] As I have recounted at paras 6–7 above, no one explained to Ms Wilson what was going on in court or asked her if she had anything to say. As a result of what appeared to be a rather quick and “in club” discussion between the Bench and Bar Table, an interim care order was made. The most important person in the courtroom at that time — the mother whose child had been taken from her at birth two days ago — was ignored.

[105] Every judicial officer is familiar with the pressures of a busy list and looks for a means of getting through it efficiently. The Children’s Court is a particularly fraught and stressful arena of conflict. A case such as the present shows how important it is in the administration of justice that judicial officers do their best to involve litigants meaningfully in the process by which justice is done.

[106] The second matter calling for comment occurred in the conduct of the case in this court but it is not peculiar to this case — it has been observed by a number of Judges in the Supreme Court and it is currently the subject of discussion between this court, the Bar Association and the Law Society. I refer to the practice of advocates, which seems to have developed over recent years, of announcing their appearances to the Bench or beginning the examination of witnesses with the salutation “Good morning, your Honour” or “Good afternoon, Mr Smith”. I am informed that this is a practice which has developed in the Magistrates’ Courts. The Supreme Court is of the view that it is a practice which should be abandoned in contentious litigation.

[107] Lest it be thought that this view is the relic of a stilted and now-outdated judicial self-esteem, let me illustrate, by reference to what occurred in this case, how the practice can cause substantial misperceptions prejudicial to the conduct of a fair trial.

[108] Mr Chapman, who is obviously a highly experienced and capable solicitor frequently conducting cases in the Children’s Court, routinely greeted me with the salutation of “Good morning, your Honour” or “Good afternoon, your Honour” each time he announced his appearance at directions hearings and on each day of the trial. In accordance with the usual etiquette of this court, Mr Moore of Counsel did not. Mr Chapman’s apparent familiarity with the Judge could have caused a misapprehension in the mind of Ms Wilson, already distrustful of the judicial system, that Mr Chapman enjoyed a relationship with the Judge which was something more than merely professional. Such a suspicion should never be allowed to arise. A Judge should not feel compelled to allay such a suspicion by rebuking an advocate for misplaced courtesy.

[109] More importantly, Mr Chapman routinely began his cross examination with the salutation “Good morning, Ms Wilson (or Mrs Wilson)”. He was met with a stony silence. How could Ms Wilson or Mrs Wilson greet politely the man who was avowedly intent on taking Anna away from them by destroying their evidence? A witness in their position would inevitably feel it to be the most odious hypocrisy to be compelled to return the salutation with a polite “Good morning, Mr Chapman”.

[110] Mr Chapman, of course, noted the rebuff and, on occasion, directed a meaningful look at the Bench. I do not think he intended it, but the impression which could well have been conveyed to Ms Wilson and Mrs Wilson was that, even before Mr Chapman had begun his cross examination, he had already unfairly scored a point against them because he had put them in the position in which he could say — eloquently, by a look, not even a word — “You see what rude and unpleasant people we are dealing with here, your Honour”.

[111] I wish to make it clear that, by these remarks, I intend no personal criticism of Mr Chapman. He conducted the case professionally and courteously, in what he saw to be the best interests of Anna. I am sure that, in using salutations as I have described, Mr Chapman was merely following a practice which is now routine in the Magistrates’ Courts.

[112] However, a witness should never be placed in the position of having to greet politely a cross examiner who is an avowed opponent. An advocate should never use this technique to score against a witness. It is far better to avoid the perception that this technique of discrediting a witness is being used unfairly.

[113] For these reasons, the practice of salutations by advocates should be completely abandoned in all courts in all contentious litigation.


This has also been the view of judges of the Supreme Court of Western Australia, one of whom is reputed to have rebuked counsel who said good morning to the judge in court by stating “Mr Z, this is not a social occasion, it is a state occasion”. My own preference in court is for counsel to begin with “Your Honour, I appear for Mr X” or the more formal “May it please the court, I appear for Ms Y”.

The citation for the case is: Wilson v Department for Human Services [2010] NSWSC 1489. The full judgment is available at:

Dr. Michael King is a magistrate of the Magistrates Court of Western Australia and an adjunct Senior Lecturer in the Faculty of Law at Monash University.

Posted February 18, 2013 by proceduralfairness in Courts

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Problem-Solving Courts and Perceptions of Procedural Fairness   1 comment

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.

David Rottman

Posted April 30, 2012 by drottman1 in Courts

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