Encouraging people to obey the law

Originally published in Magistrates Magazine

Phil Bowen

The public has long recognised that the courts are good at
guaranteeing everyone gets a fair hearing. Over the past
decade, the public have consistently said that they have
confidence that the criminal justice system treats accused persons
fairly. This has often been contrasted with the public’s low
confidence in the system’s effectiveness, causing various Home and
Justice secretaries to gnash their teeth, demanding sentences get
progressively more punitive and the ‘system’ bucks up its ideas.
But recent research in the USA and in the UK has shown that
perceptions of fairness are more significant in shaping public
attitudes of the justice system than perceptions of effectiveness.

This work suggests that when people are, or perceive they will be,
treated fairly, they are more likely to obey the law because they see
it as a legitimate source of control. As recent Ministry of Justice
research puts it:‘Fair and respectful handling of people, treating them
with dignity, and listening to what they have to say, all emerge as
significant predictors of … preparedness to cooperate with legal
authorities and comply with the law.’ This ‘procedural’ fairness is not
just relevant for defendants – when victims feel they are not treated
fairly, especially when they feel their views are ignored, they are less
likely to be witnesses again and likely to make that view known to
their friends. Improving perceptions of fairness may be the best way
to improve perceptions of effectiveness.
The potential effect in court
How would a new focus on procedural fairness change practice in
our courts? For one, it indicates we should be especially interested
in ensuring all those who attend court feel treated fairly.
Researchers have identified several critical dimensions: (1) voice (has
the court user’s side of the story been heard?); (2) respect (have the
judge, lawyers, and court staff treated them with respect?); (3)
neutrality (is the decision making process seen as unbiased and
trustworthy?); (4) understanding (can court users comprehend the
language used in court and the decisions made?); and (5) helpfulness
(are court actors seen as interested in court users’ personal
situations to the extent that the law allows?).Work by the Center
for Court Innovation, a US not-for-profit organisation, for example,
has converted this into practice, training court officials and judges in
a number of jurisdictions in better courtroom communication.
It is not just in courtroom communication that fairness can be
implemented. There is evidence that providing opportunities for
offenders to come back to court and discuss with a judge how they
are doing on a community sentence can, in certain types of cases,
reduce the number of breaches and reduce future offending.While
judicial monitoring or sentencer supervision is already used for drug
rehabilitation requirements, the last five years of research in this
area has sharpened our understanding of what works. Firstly, we
know now that the relationship of the offender with the judge in
those reviews is the most powerful determinant of the defendant’s
perceptions of fairness.To ensure a perception of fairness over time,
it indicates that the same sentencer is present at each review. In the
review itself, the defendant should have an opportunity to explain
themselves but the court should also use its authority to set and
maintain clear rules by which the defendant’s progress will be
judged. Secondly, these rules of thumb, long evidenced in their use in
drug courts, now have hard evidence behind them for their use in
domestic violence cases and even low-level nuisance offences.
Lastly, procedural fairness suggests that efforts to improve the
assessment and sentencing of offenders has not only an instrumental
utility but a normative one. The growing number of courts which
have court liaison and diversion services, for example, not only help
improve the court’s ability to sentence more accurately but can help
promote the perception that the court understands the people as
well as the cases it sees. Similarly, understanding the significance of
the relationships that court users have, such as with families and
friends, and ensuring sentences take regard of them, can
demonstrate the court’s understanding of offenders’ lives.
These practical steps have implications for magistrates. It may mean
that they need to spend more time, not less, speaking with
defendants in open court. It may mean that magistrates’ training
should reflect effective practice in courtroom communication. It
may mean that they prioritise sitting in sentencer reviews on a
consistent schedule, to ensure ‘their’ cases are brought back to
them, as already happens in the drug court at West London.To be
sure, how to influence perceptions is always a tricky business. But if
we want people to respect the law, it is clear that the law needs to
respect them.