Procedural Justice

This article focuses on the psychology of procedural justice (PJ) and the law. PJ is a judgment about the fairness of the procedures employed to resolve conflict. Psychological research shows that PJ enhances satisfaction with conflict procedures and outcomes independent of actual dispute outcomes or outcome fairness. Among the procedural criteria that enhance fairness are having one’s say, neutrality, benevolence, and respect—an effect that occurs in legal contexts across cultures. Research has shown that procedural fairness effects are diminished and outcome effects are enhanced when outcomes are favorable or when they pose threats to central moral values. The psychology of retributive justice concerns the fairness of responding to rule violations or legal infractions. PJ research can assist in the evaluation of alternative dispute resolution procedures, such as mediation and restorative conferences.

Procedural Justice and the Law

The earliest research on the psychology of fairness focused on people’s beliefs as to whether the outcomes of their conflict were fair. This distributive justice research was the first to conduct empirical tests of the proposition that people’s satisfaction with the resolution of conflict is influenced by outcome fairness rather than exclusively by outcome favorability—a proposition that dates to Aristotle. Although the original demonstrations of distributive fairness effects on satisfaction were not conducted in legal settings, subsequent research established the importance of outcome fairness for people’s satisfaction with the resolution of conflicts in legal settings as well. For example, a study of felony defendants found that their belief that their sentence was fair was a better predictor of their satisfaction with the outcome of their case than was the duration of their incarceration.

The first systematic research concerning the psychology of procedural fairness was conducted by John Thibaut, a professor of psychology, and Laurens Walker, a professor of law. Their seminal work led them to theorize that disputants’ satisfaction with the resolution of their conflicts was influenced by the fairness of the conflict resolution procedures as well as the fairness of the outcomes produced by those procedures. Furthermore, they proposed that beliefs about procedural fairness were influenced by the manner in which control was distributed between disputants and potential third parties in litigation procedures (e.g., autocratic, adversarial, or negotiation procedures). Finally, they asserted that beliefs about procedural fairness were a critical determinant of litigants’ (and observers’) procedural preferences and their satisfaction with legal procedures and outcomes.

Thibaut and Walker’s theory of PJ postulated that disputant process control and decision control were critical determinants of procedural fairness and satisfaction. The adversarial procedure was asserted to be superior because of its optimal distribution of control—allocating process control to the litigants or their lawyers (permitting each party to present evidence on their behalf) and decision control to the judge (thus ensuring that a decision would be imposed, even in high-conflict settings). One early study compared the procedural preferences of undergraduate students from four countries (France, West Germany, Britain, and the United States). This study found the adversarial procedure (common to U.S. courtrooms) to be perceived as fairer and preferred to alternative procedures by U.S. residents as well as by citizens in the European countries where the adversarial procedure is not legally institutionalized and where judges typically exert a greater degree of process control than in U.S. courtrooms.

Most important, Thibaut and Walker’s laboratory research was the first to demonstrate what is referred to as the fair process effect: that the use of fair procedures enhanced disputants’ acceptance of contested outcomes. This was a profoundly important finding for the fields of psychology and law, and it has been replicated in numerous studies of people engaged in actual disputes in legal settings. While subsequent PJ research focused heavily on the procedural criteria of process control (or “voice”) and decision control, research has also established that numerous other procedural criteria, including correctability, consistency, decision accuracy, and ethicality, also enhance procedural fairness.

Challenges to Procedural Justice Theory

The original PJ theory was developed out of research conducted in high-conflict settings (legal disputes). It assumed that disputants were motivated to obtain fair outcomes, and therefore preferred procedures that permitted them to express their views about appropriate outcomes and be influential in shaping those outcomes. Although the theory was well supported, some findings did not fit well with its predictions. For instance, the theory predicted that process control was important because it increased the likelihood of obtaining fair and beneficial outcomes. However, research showed that voice (i.e., process control) enhanced fairness even when disputants did not think that their voice was influential. This noninstrumental voice effect led two psychologists, Tom Tyler and Allan Lind, to propose a group value theory of PJ. This theory has profoundly influenced subsequent research and theory on PJ.

Group Value and Interactional Justice Theories

Whereas PJ theory is an instrumental theory that emphasizes disputants’ concern with control, the group value theory emphasizes people’s concern with their social relationships with groups and institutions and the authorities representing those institutions; it asserts that when people encounter authorities who represent valued groups (such as legal institutions), they look for information concerning their group belonging and group standing. This theory also asserts that three procedural criteria are particularly influential for beliefs about group standing and, hence, fair treatment: neutrality; benevolent authorities; and respectful treatment. In this view, voice—the opportunity to express one’s views, even without any influence on one’s outcomes, enhances procedural fairness for symbolic rather than instrumental reasons because it communicates one’s favorable group standing.

A related theory, interactional justice theory, likewise asserted that interpersonal concerns such as polite treatment shape judgments of procedural fairness.

An extensive body of research, including experiments conducted with undergraduate participants in psychology laboratories and surveys of citizens about their actual legal encounters (e.g., encounters with judges or the police), provides strong support for the central claims of the group value and interactional justice theories. This research shows that fair treatment enhances people’s satisfaction with legal authorities, legal institutions, and outcomes. Furthermore, this fair treatment effect remains after controlling for the absolute outcomes and the distributive fairness of these legal encounters; it occurs in civil and criminal cases and among misdemeanors and felons and participants and observers.

Whereas the earliest research was strongly supportive of the claim that process control and decision control increased procedural fairness, more recent research has supported the group value theory’s claim that neutrality, benevolent authorities, and respectful treatment increase procedural fairness because of what this treatment communicates about people’s relationships with valued groups and authorities.

Moderators of the Influence of Procedures and Procedural Fairness

Researchers have also examined the conditions under which procedural fairness exerts more or less influence on legal attitudes and behavior. Two lines of research concerning moderating influences have been particularly influential. One has shown that the impact of procedural fairness is diminished when outcome favorability is high (and is enhanced when outcome favorability is low). A second has investigated the moderating influence of moral beliefs on the importance of procedural fairness. While the research described above shows that fair procedures lead to increased acceptance of undesirable outcomes, or increased perceptions of distributive fairness (a “fair process” effect), additional research has demonstrated that the fair process effect is diminished when people view certain trial outcomes (such as convicting a guilty defendant or acquitting an innocent one) as morally mandated. This research suggests that among those who perceive a particular outcome as morally mandated, the fair process effect does not occur. For these people, due process affects outcome satisfaction less than their belief that the morally mandated outcome was obtained.

Justice Approaches to Legitimacy and Compliance with the Law

Deterrence approaches to compliance with the law are guided by the instrumental perspective that people’s compliance is shaped by their estimates of the penalties that will result from noncompliance. According to a deterrence perspective, the likelihood of crime decreases as the certainty and severity of punishment for crime increase. PJ research and theory suggests an alternative, normative approach to compliance: People will voluntarily obey the law when they believe it is the right thing to do. Morality and beliefs about legitimacy (of the law or legal authorities) are normative perspectives on compliance. A legal authority is said to have legitimacy when people think it is appropriate to comply with their decisions because the authority deserves to be in power and is entitled to obedience.

While research in legal settings has shown that compliance with the law is influenced by beliefs about the likelihood and severity of punishment, other research that compares expectations about punishment and beliefs about legitimacy as determinants of compliance shows that legitimacy is more influential. A considerable body of research in legal and other (e.g., organizational and political) settings indicates that authorities and institutions are perceived as more legitimate, and elicit greater levels of compliance with their decisions, when they enact procedures fairly. For example, one study asked civilians about their encounters with the police. This survey found that citizen’s reports that they were treated fairly were influenced by procedural criteria such as process control, neutrality, and respect and that as beliefs about fair treatment increased, so did citizens’ beliefs about the legitimacy of the legal authorities and their intent to comply with the law.

Cross-Cultural Views

The question of the cross-cultural generalizability of PJ theories has been addressed in numerous studies, starting with the earliest work by Thibaut and Walker. Research described above showed that European residents showed the same preference for adversarial procedures over autocratic ones evidenced by the U.S. residents, despite the fact that the adversarial procedures are not institutionalized and are less familiar to participants in these European countries. Similar findings have been replicated in other countries, including Hong Kong, Japan, and Spain. Similarly, cross-cultural research has supported the claims of the interactional justice and group value theories.

Whereas the earliest tests of cross-cultural generalizability compared PJ effects in various countries, more recent research has shifted from a country focus to a focus on the cross-cultural variability of social values. This work has examined the way in which the cultural variability of social values moderates the influence of PJ criteria such as voice, benevolence, neutrality, and respect. Two dimensions of social values have received considerable attention: individualism-collectivism (the degree to which ties among individuals in society are weak, such as in individualist societies, where people are expected to look after themselves, or strong, as in collectivist societies, where people are integrated into stable, cohesive in-groups that place a high value on harmonious social relations) and power distance (the degree to which people expect or accept inequality in formal power among persons, with high-power-distance individuals being the most accepting of power differentials and low-power-distance individuals being more in favor of equality).

Although the general pattern of findings is supportive of the role of voice, benevolence, neutrality, and respect across cultures, this work has also shown that the strength of the relationships between procedural criteria and procedural preferences and fairness judgments varies with individualism-collectivism and with power distance. For example, people in collectivist societies, such as China, express a greater preference for mediation (a procedure that places greater reliance on cooperation and interpersonal harmony than do adversarial procedures) than people in individualist societies, such as the United States. Similarly, research has shown that individuals in societies high in power distance (such as the Arab and Latin American countries) are more tolerant of disrespectful or unfair treatment from authorities and are less sensitive to variations in opportunities for voice than individuals from low-power-distance societies (such as the Scandinavian countries). Although this research points to cultural variability on power distance and individualism-collectivism, there is also considerable variability among individuals within cultures, and the effects shown to result from cultural variation on these constructs are expected to result from individual differences on these constructs as well.

Retributive Justice

Although there is an abundance of research on procedural and distributive justice, less attention has been paid to the psychology of retributive justice, concerning reactions to rule violation. When an injustice is addressed in the legal system, options for sanction largely involve victim compensation and offender punishment. Research suggests that a primary determinant of the impulse to punish rule-breaking behavior is the perpetrator’s state of mind. If victims and third parties judge perpetrators to have committed harm unintentionally (negligence), psychological reasoning focuses on compensation for harm. However, when perpetrators are thought to have intentionally violated group norms and values, observers are motivated to punish the offender.

Proportionality is a central characteristic of retributive sentencing. The severity of the punishment assigned by observers increases with the perceived seriousness of the offense and the harm caused. Additional factors, such as the offender’s age or previous criminal record, or the observer’s cultural background, can also affect the severity of sanctions. Mitigations and justifications may eliminate or suppress the relationship between the severity of an intentionally committed offense and the severity of the punishment (e.g., when an offender kills someone who threatens his or her own life or the life of another). Studies have found that apologies and expressions of remorse also decrease the severity of the sentences recommended.

Sentencing in the criminal justice system has several underlying aims, including deterrence, rehabilitation, incapacitation, and retribution. Retribution is the only sentencing aim that is nonutilitarian and based on judgments of “just deserts”; as such, it is often considered a retrograde and vindictive motive for sanction. However, research on retributive justice suggests that retribution can be forward looking, in that it aims to ensure that problems of the past do not recur. Retributive justice performs an important role in maintaining the cohesion of social groups and is motivated by group members’ concern for the group’s welfare. Criminal violations of social norms constitute a salient threat to an individual’s well-being, and offenses against innocent victims threaten group members’ stable worldviews, in which one’s environment is perceived as predictable and controllable. Punishment is seen as a stabilizing force, used to prevent future violations of group norms and restore the social order. Research supports the fundamental role of retribution in people’s reactions to norm violations, suggesting that people assign punishment for just deserts rather than utilitarian motives. In addition to the rational, group-stabilizing motivation behind the desire for retribution, recent research demonstrates the role of moral emotions in assigning sanctions for norm violation. The severity of observers’ assigned punishments for offenses increases when those offenses elicit, in particular, anger and moral outrage.

Alternative Dispute Resolution (ADR)

In recent decades, various procedures have emerged as alternatives to the court in resolving legal disputes. They include small-claims mediation, divorce mediation, judicially mediated plea bargaining, judicial settlement conferences, court-annexed arbitration, and summary jury trials. The Dispute Resolution Act of 1998 requires every federal district court in the United States to implement a dispute resolution program where one does not already exist and to improve existing programs. The growing popularity of ADR programs has prompted extensive investigation into disputants’ responses to ADR.

While ADR procedures can be distinguished according to legal and structural characteristics (e.g., whether the procedure is voluntary, whether it is binding, the identity of the third party, the degree of formality, and the nature of the outcome), they can also be distinguished according to the degree of control that disputants retain over the process and the decision. For example, in court-annexed arbitration, participants retain process control in the presentation of evidence but relinquish decision control to the arbiter. In mediation procedures, participants retain process control, presenting their version of events, but also retain decision control, aiming to reach a bilateral agreement. Consistent with psychological theory about PJ, research suggests that the increased levels of participation and voice, as well as the respectful treatment from benevolent authorities that can accompany these alter-native procedures, enhance fairness and satisfaction. Correlational field studies have also found that mediation procedures are more likely to produce decisions that are obeyed than are adjudication procedures.

Restorative Justice (RJ)

Restorative justice (RJ) is an approach to criminal behavior that emphasizes healing victims, offenders, and communities. This variant of ADR is being increasingly adopted by justice systems worldwide. The basic premise of RJ is that crime is a violation of individuals and communities, not merely a violation of law. RJ prioritizes the goal of reparation of harm rather than the traditional punitive goal of just deserts. RJ is fundamentally different from other ADR and traditional courtroom procedures in its emphasis on the psychological importance of group belonging and its core goal of reintegrating offenders into important social groups. The group value model offers clues as to why people support restorative sanctions: Restorative sentencing emphasizes that an offender has lost his or her status as a respected member of the group and should perform reparative acts to regain that status.

RJ consists of a variety of practices at various stages of the criminal legal process, including court diversion, actions taken in conjunction with police and court decisions, reparation boards, and meetings between victims and offenders. RJ procedures are more prevalent in juvenile than in adult justice systems but are becoming more common in dealing with adult offenders. In the United States, RJ programs tend to be privately run or community based, with a number of RJ programs also developed by individual probation departments. Other nations, however, tend to implement RJ programs more systematically, incorporating RJ procedures as one component in a hierarchy of legislated responses to juvenile crime.

One common RJ practice is conferencing, in which the offender, the victim, and their supporters come together to discuss an offense. At the end of a conference, all participants, including the victim and offender, decide on a course of action for the offender to complete. The agreement is an undertaking by the offender to make reparation for the harm caused by the crime and might include, for example, community service or monetary compensation.

Consistent with research showing that ADR procedures engender greater disputant satisfaction, RJ conference participants report fairer treatment than their counterparts who experience court procedures. The RISE project in Australia, one of the few experimental studies of conferencing, randomly assigned cases to either RJ conference or court. Across all offense types included in the study (youth violence, drunk driving, shoplifting, and property crime with personal victims), participants’ fairness judgments were higher in the conference condition. Studies on RJ conferencing have also found that recidivism is lower following conferencing than after court procedures.

Although early evaluations of RJ are promising, both the predominance of nonexperimental studies (with potential selection biases in participants, programs, and types and severity of offenses studied) and the need for systematic examinations of the psychological processes underlying participants’ responses to RJ preclude authoritative conclusions about its effectiveness.

References:

  1. Darley, J. M., & Pittman, T. S. (2003). The psychology of compensatory and retributive justice. Personality and Social Psychology Review, 7(4), 324-336.
  2. Latimer, J., Dowden, C., & Muise, D. (2005). The effectiveness of restorative practices: A meta-analysis. The Prison Journal, 85(2), 127-144.
  3. MacCoun, R. J., Lind, E. A., & Tyler, T. R. (1992). Alternative dispute resolution in trial and appellate courts. In D. K. Kagehiro & W. S. Laufer (Eds.), Handbook of psychology and law (pp. 95-118). New York: Springer-Verlag.
  4. Morris, M. W., & Leung, K. (2000). Justice for all? Progress in research on cultural variation in the psychology of distributive and procedural justice. Applied Psychology, 49(1), 100-132.
  5. Thibaut, J., & Walker, L. (1975). Procedural justice: A psychological analysis. Hillsdale, NJ: Lawrence Erlbaum.
  6. Tyler, T. R. (2006). Why people obey the law. Princeton, NJ: Princeton University Press.

Return to the overview of Trial Consulting in Forensic Psychology.

Procedural Justice

Procedural Justice

Procedural Justice