The concept of procedural justice invokes the idea that treating people in a humanizing and respectful manner is not only the right thing to do, but can improve the effectiveness and transparency of an organization. Unfortunately, on too many occasions we have seen pretrial processes that reflect anything but these values.
We have watched first appearance hearings where people are paraded in like cattle, or pulled one-by-one from a holding cell, where the judge stood at an already-raised platform, hovering eight feet over a defendant who likely didn’t sleep the night before. We have listened to mystifying jargon and acronyms, and attempted to follow confusing and opaque proceedings. We have witnessed defendants told to be quiet and let their attorneys speak for them, when they had barely been acquainted, assuming they even have an attorney at this hearing. We have watched pleas to be released on recognizance to allow someone to go back to work, or care for their children or elderly relative, not just go unheard, but viewed as a nuisance to the court. And when released, we have seen people struggle to understand what their obligations are to the court, and offered little support in meeting those obligations.
This is why we offered procedural justice as one of our Smarter Pretrial training and technical assistance topics (funded by the U.S. Department of Justice Bureau of Justice Assistance). We wanted to help jurisdictions change that dynamic.
Tom Tyler, a leading academic on the subject, has identified some key principles in procedural justice. The following is quoted with permission from Tyler’s article, Procedural Justice and the Courts, in Court Review, a periodical of the American Judges Association. The elements include:
Voice - People want to have the opportunity to tell their side of the story in their own words before decisions are made about how to handle the dispute or problem. Having an opportunity to voice their perspective has a positive effect upon people’s experience with the legal system irrespective of their outcome, as long as they feel that the authority sincerely considered their arguments before making their decision. [excerpt]
Neutrality - People bring their disputes to the court because they view judges as neutral, principled decision makers who make decisions based upon rules and not personal opinions, and who apply legal rules consistently across people and over cases. To emphasize this aspect of the court experience, judges should be transparent and open about how the rules are being applied and how decisions are being made. Explanations emphasizing how the relevant rules are being applied are helpful.
Respect - [excerpt] People want to feel that when they have concerns and problems both they and their problems will be taken seriously by the legal system. Respect matters at all stages, and involves police officers and court clerks as well as judges. It includes both treating people well, that is, with courtesy and politeness, and showing respect for people’s rights.
Trust - Studies of legal and political authorities consistently show that the central attribute that influences public evaluations of legal authorities is an assessment of the character of the decision maker...People infer whether they feel that court personnel, such as judges, are listening to and considering their views; are being honest and open about the basis for their actions; are trying to do what is right for everyone involved; and are acting in the interests of the parties, not out of personal prejudices.
The San Francisco Pretrial Diversion Project (SF Pretrial) selected procedural justice as their subject of Smarter Pretrial technical assistance. According to SF Pretrial, the ultimate goal of employing procedural justice was to “make the pretrial justice system more navigable, transparent, and humanizing for justice-involved populations.” As part of their efforts, for example, SF Pretrial designed written information about their program that was clearer and more complete, as well as in both English and Spanish. SF Pretrial also began including principles of procedural justice in their staff training, emphasizing eye contact, engaged demeanor, openness to questions, and clear communications.
The potential for procedural justice to help create a new paradigm of pretrial justice could be significant. SF Pretrial implemented procedural justice-informed changes during the same time as the Humphrey decision and conversations around pretrial justice via SB 10 so it is impossible to directly attribute specific causes, but four key measures—judicial concurrence rates, release rates, appearance rates, and public safety rates—showed improvements after the implementation of procedural justice concepts. Other studies have shown that treatment courts that employ procedural justice have improved rates of completion.