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The simple idea that could transform US criminal justice

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What if judges for petty crimes talked to defendants with respect, got them help for their problems, and urged them to think constructively about the future? A few pioneers of "procedural justice" are beginning to show results.

That's a great idea. It just might work!

This is new to me, but I believe them.

The concept of procedural justice was first formulated by a social psychologist named Tom R Tyler. Entering Columbia University in 1969, Tyler started college at a moment when respect for the law was at a low point. Racial segregation had been outlawed in the US only five years earlier, but was still defiantly enforced in many parts of the south. The US was fighting a war in Vietnam that was widely considered immoral and illegal. “My entire generation was preoccupied with the question of why we would or wouldn’t obey laws, and whether the law was legitimate,” he said.

The question continued to preoccupy Tyler throughout his time in college. Unlike other researchers in his field, what interested him was not why people break the law, but why they do not. Even criminals, he noted, follow the law most of the time. In his 1990 book Why People Obey the Law, Tyler came up with a novel explanation.

Criminal justice systems everywhere run on the assumption that people obey the law because they are afraid of punishment. B Tyler argued that the key factor is legitimacy: people obey the law because they believe the state has the right to tell them what to do. Broad legitimacy matters more than whether people believe an individual law to be right or wrong – although the public’s view about individual laws can influence broad legitimacy.

In the courts, Tyler argued, legitimacy is created by the perception of fairness. But while lawyers and judges tend to assume that fairness refers to the outcome of a case, that is generally not what matters most to the people who come before a court. For example, Tyler and a colleague asked defendants to describe the process and the outcome of their cases, and whether they willingly accepted the court’s decision. Through statistical analysis, the researchers found that defendants were far more likely to willingly accept the court’s decision if they felt they had been treated fairly. Indeed, this was much more important to defendants in this regard than a favourable outcome.

In other words, an offender is more likely to do what the authorities tell him and refrain from committing further crimes if he feels that he is treated with respect and fairness – regardless of the judge’s ruling. “This discovery has been called ‘counterintuitive’ and even ‘wrongheaded,’” stated a paper published in 2007 by the American Judges Association, “but researcher after researcher has demonstrated that this phenomenon exists”.

* * *

Does procedural justice get better results than the practices employed in traditional courts? Court Innovation is just beginning the first formal evaluation of Part Two, but Mulligan-Brown, who now heads Newark Community Solutions, said that an average of 70% of defendants complete their mandates and avoid jail – a very high level of compliance with court orders. Another important marker is the drastic reduction in arrest warrants that the judge issues for no-shows. Pratt said that in traditional court she would sometimes have to issue dozens of warrants per day. Now she is down to three or four per day.

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