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Procedural Justice
 
By
Michelle Maiese


Updated June 2013 by Heidi Burgess and Sarah Cast

Originally published January 2004
 

Fair treatment is often identified with those procedures that generate relevant, unbiased, accurate, consistent, reliable, and valid information.

Rules or procedures must be consistently followed, and impartially applied.
What Procedural Justice Is

The notion that fair procedures are the best guarantee for fair outcomes is a popular one. Procedural justice is concerned with making and implementing decisions according to fair processes. People feel affirmed if the procedures that are adopted treat them with respect and dignity, making it easier to accept even outcomes they do not like.[1]

But what makes procedures fair? First, there is an emphasis on consistency. Fair procedures should guarantee that like cases are treated alike. Any distinctions "should reflect genuine aspects of personal identity rather than extraneous features of the differentiating mechanism itself."[2]

Second, those carrying out the procedures must be impartial and neutral. Unbiased decision- makers must carry out the procedures to reach a fair and accurate conclusion. Those involved should believe that the intentions of third-party authorities are benevolent, that they want to treat people fairly and take the viewpoint and needs of interested parties into account.[3] If people trust the third party, they are more likely to view the decision-making process as fair.

Third, those directly affected by the decisions should have a voice and representation in the process. Having representation affirms the status of group members and inspires trust in the decision-making system. This is especially important for weaker parties whose voices often go unheard.

Finally, the processes that are implemented should be transparent. Decisions should be reached through open procedures, without secrecy or deception.



S.Y. Bowland talks about African American's lack of trust in the American justice system and its processes.

Many believe that procedural justice is not enough. Reaching fair outcomes is far more important than implementing fair processes. Others maintain that insofar as fair procedures are likely to "translate" into fair outcomes, they are of central importance.[4]

The Many Realms of Procedural Justice

Fair procedures tend to inspire feelings of loyalty to one's group, legitimize the authority of leaders, and help to ensure voluntary compliance with the rules.[5] This is true in a variety of settings, from the work place, to political organizations, to legal contexts.

Issues of procedural justice thus arise in the making of many different types of decisions. In the context of legal proceedings, procedural justice has to do with ensuring that a fair trial takes place. The application of law is supposed to ensure impartiality, consistency, and transparency. In order to ensure that retributive justice is served and that offenders receive fair punishments, judges, and juries must be unbiased and evenhanded in their sentencings.[6]

Drug sentencing laws in the U.S. have, for instance, been challenged as being procedurally unjust. In particular, federal sentencing structures hand out tougher sentences for crack cocaine than for powder cocaine, a substance more popular with white, wealthier users. The outcome of the wide disparity has been a racial imbalance in federal prisons, which are overcrowded with poor African American,  offenders. Powder cocaine offenders, meanwhile, are thought to “get off easy,” despite scientific evidence that neither substance is more addictive than the other. The Fair Sentencing Act (FSA), a law passed by Congress in 2010, aimed to correct unfair sentencing procedures by reducing the sentencing disparity between crack and powder cocaine from a 100:1 to an 18:1 weight ratio. Nonetheless, many activists are calling for further reforms, including applying the FSA retroactively, which would correct past injustices, and eliminating the disparity entirely.[7]

In the realm of distributive justice, implementing fair procedures is a matter of setting down rules that everyone should follow in acquiring and transferring goods. Many believe that following certain rules of allocation will lead to the fairest distribution of wealth.

There is also an important relationship between justice-based principles and negotiation. Fair processes yield reliable information that can be used in the decision-making process. Participants must agree beforehand to the processes of dialogue or exchange that are being used, and be given an equal voice in any decisions that are made.

Fair rules of collaboration are central to successful mediation or negotiation processes, insofar as they are the best tools for reaching a decision acceptable to all parties.

Fair procedures of negotiation or legal proceedings are also central to the legitimacy of decisions reached. In those cases where parties feel forced to accept the results of a decision-making process they think was unfair, there may be a backlash effect.

Another example of a procedural injustice is the practice of racial profiling, a violation of constitutional rights in the United States. A class-action suit brought by Hispanic drivers in Maricopa County, Arizona, alleged that police deputies under the leadership of Sheriff Joe Arpaio were illegally using race as grounds to stop, detain, and hold the occupants of vehicles. In May 2013, a federal judge ruled that the patrols had indeed “incorporated race as a consideration into their operations” and banned Sheriff Arpaio’s unfair operating procedures.[8]

The Importance of Fair Processes in an International Context

In any instance where nations come together to negotiate or make decisions about international policy, fair processes of collaboration are crucial. Fair procedures, ones that allow all parties to voice their interests, should be adopted in developing treaties, and other international agreements. Even the military must take care to follow standard procedures.

In those cases where standard military or arms-control procedures are not followed, a crisis situation may result. For example, nations who conduct military exercises without following agreed-upon notification procedures may escalate a conflict.

Even in war, there are standard procedures to be followed. Terror tactics, for example, do not qualify as a fair process of warfare. Innocent civilians cannot be military targets. The rules of jus in bello can thus be thought of as a special instance of procedural justice.

When fair procedures of warfare are not followed, and human-rights violations result, international tribunals often intervene to address these transgressions. Any war crimes adjudication that takes place should, like legal proceedings at the local or national level, follow established procedural rules.
 


[1] Morton Deutsch. "Justice and Conflict," in The Handbook of Conflict Resolution: Theory and Practice, ed. M. Deutsch and P.T. Coleman (San Francisco: Jossey-Bass Inc. Publishers, 2000), 45. More recent edition (2011) available here.

[2] Robert T. Buttram, Robert Folger, and B.H. Sheppard. "Equity, Equality and Need: Three Faces of Social Justice," in Conflict, Cooperation, and Justice: Essays Inspired by the Work of Morton Deutsch, eds. B.B. Bunker and Morton Deutsch (San Francisco: Jossey-Bass Inc. Publishers, 1995), 272. <http://www.amazon.com/Conflict-Cooperation-Justice-Inspired-Deutsch/dp/0787900699>.

[3] Ibid., 273.

[4] William Nelson. "The Very Idea of Pure Procedural Justice," Ethics, vol. 90, no. 4 (July 1980): 506. <http://www.jstor.org/stable/2380450>.

[5] Tom R. Tyler and Maura A. Belliveau. "Tradeoffs in Justice Principles: Definitions of Fairness," in Conflict, Cooperation, and Justice: Essays Inspired by the Work of Morton Deutsch, eds. B.B. Bunker and Morton Deutsch (San Francisco: Jossey-Bass Inc. Publishers, 1995), 297. <http://www.amazon.com/Conflict-Cooperation-Justice-Inspired-Deutsch/dp/0787900699>.

[6] Jeffrey A. Jenkins. The American Courts: A Procedural Approach, (Jones & Bartlett Publishers, 2011). <http://books.google.com/books?id=yvT5SVwbakUC>.

[7] Julie Stewart. "Crack Laws Must Be Repaired." The Huffington Post. June 10, 2013. <http://www.huffingtonpost.com/julie-stewart/crack-laws-must-be-repair_b_3404776.html>.

[8] Tim Gaynor and David Schwartz. "Arizona Sheriff Joe Arpaio Racially Profiled Latinos, Federal Judge Rules." Reuters. May 25, 2013. <http://www.huffingtonpost.com/2013/05/24/arpaio-racial-profiling_n_3333907.html>.


Use the following to cite this article:
Maiese, Michelle. "Procedural Justice." Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado, Boulder. Posted: January 2004 <http://www.beyondintractability.org/essay/procedural-justice>.

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