Procedural Justice

By
Michelle Maiese, Heidi Burgess, and Sarah Cast

Originally published January 2004, Updated June 2013 by Heidi Burgess and Sarah Cast; Current Implications added by Heidi Burgess in July 2020
 

MBI MOOS LogoCurrent Implications

I am writing this section in the summer of 2020, about two months after George Floyd was killed by police in Minneapolis, Minnesota. Protests, not just about that incident, but about police brutality and systemic racism more broadly broke out across the United States and soon afterwards, across the world. The demands were not just for the arrest, charging, and conviction of the police officer(s) who directly or indirectly killed Floyd (one did so directly by kneeling on his neck, others did so indirectly by standing by and doing nothing.) The demands also were to "defund the police," as it was assumed that the police were so corrupted by racism that they couldn't be reformed.  Rather, they had to be eliminated and replaced by other organizations which, it is hoped, would do a better job of keeping cities safe.  More...

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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 intention of third-party authorities is impartiality—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.

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.

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.

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]


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

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.
 

Current Implications

I am writing this section in the summer of 2020, about two months after George Floyd was killed by police in Minneapolis, Minnesota. Protests, not just about that incident, but about police brutality and systemic racism more broadly broke out across the United States and soon afterwards, across the world. The demands were not just for the arrest, charging, and conviction of the police officer(s) who directly or indirectly killed Floyd (one did so directly by kneeling on his neck, others did so indirectly by standing by and doing nothing.) The demands also were to "defund the police," as it was assumed that the police were so corrupted by racism that they couldn't be reformed.  Rather, they had to be eliminated and replaced by other organizations which, it is hoped, would do a better job of keeping cities safe.

To my knowledge, that hasn't really been tried anywhere for an extended period of time, so it isn't really possible to tell whether or not it might work. But some examples are coming to the surface of situations where police have backed off doing their jobs as completely as they usually do, and the results were mixed: it proved a disaster in Baltimore (see Bret Stephens's column and Alec MacGillis's  longer feature article), but apparently less so in New York where the police have fairly routinely staged "slowdowns" during periods of anti-police rhetoric.[9] According to Haven Orecchio-Egresitz's article in the Insider, complaints of crimes actually went down in New York when police staged slowdowns, not up, reinforcing the notion that cities would be better off without police. [10]

I would argue that rather than demanding that police be defunded, which only addresses one small part of the criminal justice system (if that), people would be better off looking at the systemic injustice built into the entire criminal justice system—which is, in essence, systemic procedural injustice.  As Maiese explains in this article, justice isn't just about punishing people for wrong doing (that's retributive justice). It is also about following fair and equal procedures in so doing.  George Floyd's death reminded us that police arrest procedures used with Blacks is often different than procedures used to deal with whites. That is clearly a case of procedural injustice.  But so, too, is every other aspect of the criminal justice system.

What is not being said, yet should be, is that we need procedural justice reform in all aspects of the criminal justice and social services systems.  Look at what "procedural justice" entails. 

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 intention of third-party authorities is impartiality—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.

Clearly, none of those provisions are true when one looks at the criminal justice system's differential treatment of Whites and Blacks. In an extensive report in the Washington Post, Radley Balko reviews hundreds of studies looking at the differential way Whites and Blacks are treated in the U.S. criminal justice system.[11] It is abundantly clear that Blacks are less often treated with respect and dignity, like cases are not treated at all alike, with Blacks being dealt with more harshly throughout the arrest-jail-trial-sentencing-prison process. The intentions of third parties—police, wardens, judges, lawyers, and juries are not seen as impartial, nor are they trusted to make fair decisions. Blacks seldom have a voice or representation in the criminal justice process (except for the overworked court-appointed lawyers they are assigned if they can't afford a lawyer of their own), and the processes used by the system to make decisions is not at all transparent. 

But if police are "defunded" and other organizations are put into authority to deal with any problems that arise, will they do any better at providing procedural justice?  One of the suggestions being made is that the police shouldn't be dealing with overdoses and other health and mental health problems.  Social workers, public health workers, and others trained in drug use, health care and mental health should handle such cases instead.  There are also important questions about what it would take to enable these workers to respond on an emergency basis to situations where the exact nature of the problem is unknown and the risk of violence is significant. Even if these problems could be overcome, there is a danger that these professionals, too, could carry racial biases.  (See, for example, Khaira M. Bridges' article on Implicit Bias and Racial Disparities in Health Care.)  [12]

So, the key issue, it seems to me, is not funding or defunding police, but rather, reforming, and adequately funding, the entire process through which society handles justice related issues.

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[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>.

[9] Bret Stephens. "American Crime and the Baltimore Model" New York Times. July 17, 2020. https://www.nytimes.com/2020/07/17/opinion/policing-crime-baltimore.html and Alec MacGillis. "The Tragedy of Baltimore." New York Times Magazine, March 12, 2019. https://www.nytimes.com/2019/03/12/magazine/baltimore-tragedy-crime.html

[10] Haven Orecchio-Egeresitz "Police have traditionally protested anti-police rhetoric by making fewer arrests. Right now that's exactly what the public wants." The Insider. June 16, 2020. https://www.insider.com/police-have-historically-protested-by-making-fewer-arrests-its-become-2020-6

[11] Radley Balko. "There’s overwhelming evidence that the criminal justice system is racist. Here’s the proof." The Washington Post. June 10, 2020. https://www.washingtonpost.com/graphics/2020/opinions/systemic-racism-police-evidence-criminal-justice-system/

[12] Khiara M. Bridges. "Implicit Bias and Racial Disparities in Health Care." American Bar Association's Human Rights Magazine Vol 43, No. 3. https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-state-of-healthcare-in-the-united-states/racial-disparities-in-health-care/

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>.