Procedural justice
June 23, 2015 3:54 AM   Subscribe

Calabrese was using what have become the four principles of procedural justice: first, that people who come before a judge trust that the process is impartial; second, that they are treated with respect; third, that they understand what is going on and what they are expected to do; fourth, that they have a voice. Defendants find the procedure fairer when they are allowed to state their views. Experimental evidence shows that this is true even when they are allowed to speak only after the judge has announced their decision. No one likes to lose a court case. But people accept losing more willingly if they believe the procedures used to handle their case are fair.
How Newark and Red Hook are trying out this one simple trick that could transform US criminal courts for the better.
posted by MartinWisse (20 comments total) 31 users marked this as a favorite
If there was one motto, one commandment for public service - be humane.
posted by Devonian at 4:29 AM on June 23, 2015 [3 favorites]

Interesting concept, I do wish the criminal justice system was more compassionate with the lower level offenders. The drug war and ramp up in policing in the last decades have done a lot of damage to the general outlook, connotation?, that is associated with the police and the justice system as a whole.
I also hadn't heard 'beware the rooster who takes credit for the sunrise', I like that as a simple correlation /= causation metaphor.
posted by TheJoven at 5:40 AM on June 23, 2015

this one simple trick that could transform US criminal courts for the better

Attorneys hate him!
posted by Naberius at 6:38 AM on June 23, 2015 [12 favorites]

Red Hook is a great program. At work. I'm designing a court using a lot of these principles in a different court context.

Generally, there is some really innovative stuff going on in US trial courts: court-based legal services, triage/early neutral evaluation processes, technology-assisted pro se courts, treatment diversion, automatic expungment for some defendants/crimes.

The problem is that it's all being done one courtroom at a time (mostly for reasons that are the judicial equivalent of office politics), making the access to justice even more arbitrary. I'm hoping for a ground swell of public support--well, I'm hoping but not at all hopeful. Another problem with court reform is: everyone assumes they will never ever be in court for any reason, so make the process fair or more efficient is pretty low on the public list of priorities.
posted by crush-onastick at 6:52 AM on June 23, 2015 [12 favorites]

Hilariously, I was actually once judged, as a teen, by Judge Calabrese! Happy and unsurprised to see his name again.
posted by corb at 7:00 AM on June 23, 2015 [3 favorites]

“So Mr Cawley, what did you learn about yourself?”

“I need to cut the nonsense.”

I would like to see this exchange a lot more. For one thing, it could shorten the upcoming Presidential debates pretty fiercely.
posted by GenjiandProust at 7:40 AM on June 23, 2015 [1 favorite]

“So Mr Cawley, what did you learn about yourself?”

“I need to cut the nonsense.”

I wish the reporter had said what crime Cawley had been charged with. For a 30-day sentence, I'm guessing drugs, but then, I figure that 90-plus percent of the cases in these courts are because of a recreational amount of drugs (either possession or proximate effects).
posted by Etrigan at 7:53 AM on June 23, 2015

More seriously, I am kind of stunned by the idea of using courts not only as systems of arbitrary punishment but as triage centers -- obviously, not everyone going to court can be helped, but it's not doing us any good to host a permanent nuisance-crime underclass in a revolving-door relationship with the state if any of them can be helped.

I work on a campus with a huge number of services to help students, and I deal with a lot of students who have no idea those services are there, and that lack of knowledge hurts their success. If the court system can redirect even a small part of the flow of the criminalized poor into programs that might help them get to a better place, it is a win-win for everyone, and very fiscally responsible.

On the other hand, it may be too sensible and human to see wide adoption.
posted by GenjiandProust at 7:55 AM on June 23, 2015 [2 favorites]

To clarify: "triage" courts are courts with a process to assess cases early and assign appropriate resources to them. For instance, a triage process in a family court will move cases to settlement services before bringing them to a judge or assist the family in finding therapy-supervised supervision or getting a guardian ad litem prior to moving the case forward. A triage process in a high volume foreclosure court will basically weed out the uncontested homeowner is walking away cases from the ones with real defenses or potential for re-negotiated mortgage in order to cut down on the time everyone spends sitting around a busy courtroom for 30 seconds in front of the judge to re-set to a later date.

There are, however, plenty of pilot court programs which assess criminal defendants for addiction or mental health issues and get those people into services, like we think of "triage" in a medical context. They are usually referred to as "diversion"or "treatment alternative" courts in the legal profession. There are even a couple of courts doing this in a non-criminal context, usually family courts.
posted by crush-onastick at 8:51 AM on June 23, 2015

Judge Calabrese . . .

In New Jersey?

According to a recent study that I just made up, 73% of all judges in the state of Ohio are named either Calabrese or Celebrezze -- although each one pronounces their name differently.

Anthony O. Calabrese
Anthony O. Calabrese, Jr
Anthony O. Calabrese III
Deena R. Calabrese
J. Philip Calabrese
Anthony Celebrezze
Anthony J. Celebrezze
Anthony J. Celebrezze, Jr.
Anthony J. Celebrezze III
James Celebrezze
James P. Celebrezze
Frank D. Celebrezze
Frank D. Celebrezze, Jr.
Frank D. Celebrezze, III
Frank Celebrezze
Leslie Ann Celebrezze
Nicholas J. Celebrezze
. . . ?
posted by Herodios at 8:52 AM on June 23, 2015 [5 favorites]

The nod to Tom Tyler is an eye-opener for me (I'm a patent attorney, but I do other random legal things that guys-in-a-garage-type entrepreneurs tend to need: corporation setup, employment, NDA, contract disputes, trade secrets, etc.)

I have always told anybody who'll listen that the courts are not designed to be fair. They're designed to be predictable, because that's what businesses want. They can accurately predict whether the cost of [some technically illegal activity] exceeds the profit they can make from it, and they do it or not depending on whether they can make money. (Sure, you say I'm cynical, but just look at fossil-fuel exploration & recovery, asbestos, tobacco, high-risk banking.)

That fits right in with the "people follow the law because they're afraid of punishment" narrative. Although "afraid" is not the right word: corporations follow the law when the punishment (discounted by the chance of getting caught and punished) exceeds the expected return on the illegal activity.

I had no idea that some people follow the law because "somebody who is fair told me to do X and not to do Y." I'm not sure I'd believe it just from a theoretical social-studies "maybe this is how it works" perspective, but if that's your hypothesis, and you design an experiment to confirm it, and the results support the hypothesis, then I'll buy it. And that's what it sounds like is happening in some courts. Nice!

Now if we could just push the expected value for corporate malfeasance and white-collar crime into negative territory ... Nah, it'll never happen.
posted by spacewrench at 9:39 AM on June 23, 2015 [4 favorites]

that's sort of the issue, spacewrench. Patent or contract litigation has a completely different set of players, motivations and goals than child support. Business litigation is not about people or their lives, but a lot of both civil and criminal litigation is.

The biggest problems are places like criminal courts and say, insurance defense, cases where you get competing paradigms. As far as the insurance companies are concerned, it's just about the risk and apportioning the loss, but the person who was injured? It's about being made whole or feeling they were treated fairly.

In some courts, like family courts, you don't really have the mingling of interests and so it's easier to see whether predictability or a feeling of fairness is more appropriate. We have pretty clear evidence now that a parent who feels heard in a child support proceeding, who is also given very clear expectations about what the court can and cannot do, is much more likely to comply with a final order which is also more likely to adequately represent the family's circumstance. First is manifested in arbitration being the big thing in domestic relations; then it was community courts; now it's co-parenting courts. When family courts were predictable, they were not only unfair; they also did not serve the families well. That's okay because you are literally dealing with someone's life.
posted by crush-onastick at 10:02 AM on June 23, 2015

Patent or contract litigation has a completely different set of players, motivations and goals than child support

Right, but the rules that apply (as well as the strategies that are taught to aspiring lawyers) are mostly the same, and apart from special-jurisdiction courts, things more-or-less work the same way for business & "soft" litigation.

You'd think it might work to just completely split the two different sets of courts into "predictable" and "fair," but you'd have a mess of diverging precedents, plus inevitable fights over which court has jurisdiction (just to name two things off the top of my head).

Ultimately, you need a comprehensive system to try to fix this -- it's not something that can be addressed solely by a judge here or there, or even if every court system in the US started doing it. It's a tough problem, with connections to education, economics, racism, drugs, institutional thuggery, and dozens of other things, and there's little money in solving it (although there's plenty of money in perpetuating it -- prisons, payday lending, etc.)

Stories like these remind me of the "starfish on the beach" parable: sure, it matters to this defendant that the judge he happened to draw is willing to throw him back in the water, but it's no way to save all the starfish on the beach.
posted by spacewrench at 11:01 AM on June 23, 2015 [1 favorite]

this one simple trick that could transform US criminal courts for the better

Turn one lawyer on for a bit, then turn them off. Turn the 2nd lawyer on and go to court. If the bar is warm and off, it was the first lawyer. If its on, its the 2nd, and if its off and cold, the criminal justice system is irreparably broken.

The idea behind procedural justice is that people are far more likely to obey the law if the justice system does not humiliate them, but treats them fairly and with respect.

Why.... that's just crazy enough to work!
posted by Smedleyman at 11:07 AM on June 23, 2015 [4 favorites]

I've lived my life with the conviction that people are pressured to rise or sink to our level of expectations. I try and treat everyone with respect and it's served me well.
posted by BrotherCaine at 12:01 PM on June 23, 2015 [1 favorite]

This is really interesting. I'm wondering how it would effect court workloads if implemented on a large scale.
posted by lownote at 12:02 PM on June 23, 2015

Procedural fairness has been widely studied and is being widely emulated, in both civil and criminal courts. And that is a very good thing. Here are links to a seminal "white paper" (pdf format) on the topic and a national organization in which the authors play a key role.
posted by bearwife at 1:13 PM on June 23, 2015

You can all lay out the legal theory and history, but there's totally something in my eye after reading that article.

posted by rum-soaked space hobo at 1:54 PM on June 23, 2015

Crimes? Criminals? Who are the real criminals? The people getting caught with dime bags of heroin and for stealing food?
posted by wuwei at 3:00 PM on June 23, 2015

Herodios, if that was to me, it was in Red Hook.
posted by corb at 4:52 PM on June 24, 2015

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