Phil Bowen
I have had the great privilege over the last week of listening. Of sitting and absorbing lessons from some of the most interesting minds in justice reform in the English-speaking world.
First, I sat and learned about the strides being made across the globe in developing community courts, the simple innovation that courts can take an active, meaningful and demonstrable role in reducing crime in their neighbourhoods. At the Center for Court Innovation’s third Community Court Conference in San Francisco, we heard from a range of countries and US states about the various ways that community courts were trying to address a whole host of public safety issues: substance misuse, sex trafficking, community reparation. We heard from judges, prosecutors, defense attorneys, social workers, treatment providers; from researchers, policy makers (even the odd White House official), all engaged in efforts to build safer communities.
Then on to Washington State, that green and rainy corner of the country in the Pacific North West. There, Stephen Whitehead and I learned about the Washington Department of Corrections efforts to first pilot and mainstream swift and certain probation. Swift and Certain (the rather unlovely SAC as it is termed) aims to make probation supervision rules clearer, to hold offenders more accountable and to ensure that non-compliance is swiftly dealt with by a sanction (1-3 days jail typically). Once the sanction is over, the offender returns to community supervision, aware that the system means what it says.
Running through these innovations is a special golden thread: fairness. Not fairness in terms of legal and constitutional rights. It isn’t fairness as a euphemism for leniency or undue mercy. It’s feeling like the institutions which have leverage over you are acting fairly toward you in both making clear what the rules are, and backing that up with action, and also fair in giving you a second chance, in ensuring its response its proportional to your behaviour. It’s fairness for offenders, fairness for victims and fairness for communities. It’s recognising that fairness is about accountability as well as about being even-handed and neutral.
In the emerging literature on problem solving courts, from drug courts, domestic violence courts and community courts, we are beginning not to see just that they work but why they work and fairness seems to be the key. Not programming, not deterrence nor severity, but with offenders, victims and communities feeling like they are being treated fairly. What is perhaps most surprising is that the evidence suggests that feeling that the process of the justice system is fair is as, if not more, important than what the outcomes are. Or, to put it more simply, people know they will sometimes lose, but they are more likely to accept it if the process was fair. So, the evidence suggests the ability to deliver this fairness has a number of instrumental benefits. When the police are fair, and perceived to be fair, people tend to obey the law more. If the probation supervision is clear about the rules and sanctions a lack of compliance swiftly and certainly, but also proportionally, re-offending goes down and they are less likely to engage in other illegal activity like drug misuse.
When the court process treats people fairly, even if they don’t agree with the verdict, offenders comply better with court orders. Indeed, in problem solving courts, the research on drug courts and on community courts suggest specifically that it is the role of judge has the greatest impact on perceptions of fairness – in bringing people back for judicial monitoring, in asking to hear their side of the story, in being clear about the rules and enforcing them, about giving people a break when they deserve it.
Away from the individual level, fairness also operates at a community level. If people perceive the police and the courts to be fair, to be respectful, to be neutral and transparent in the way they make decisions, this can increase public trust and legitimacy in the justice system.
Is it, perhaps, too much responsibility to load on fairness? Is that really the only reasons why a number of the innovations I have mentioned work? I am sure it is more complex than that. Like any tapestry, there are interconnecting threads that make the whole cloth. But it does appear that the golden thread of procedural fairness is the key to holding the cloth together.