New research that examines the role of procedural justice in community court
affirms what we in the ADR field have assumed all along: the presence of procedural justice benefits both the participants and the courts. A study of the experience of offenders and residents with the Red Hook Community Court
in Brooklyn, NY, found that both groups saw the community court as a legitimate authority because of its respectful and fair treatment of all the parties involved and not by falsely lulling, or co-opting, the community into accepting an inherently unjust system.
A community court is a type of problem-solving court that focuses on quality of life offenses, such as public urination and violation of open container laws, and community safety issues. In these courts, the court, social services agencies and the community collaborate to address the offenders’ underlying problems and compensate the community for any harm done. According to the researchers, one purpose of these courts is to improve the legitimacy of the law in the eyes of the community through procedural justice
– the perception that the legal process is fair.
We in the ADR field see procedural justice as an important benefit to participants that can make the experience of ADR processes superior to that experienced in traditional legal processes. To some of those who view the legal system through an anthropological lens, however, procedural justice may not necessarily be a positive part of the justice system. They theorize that authorities can use procedural justice to fool participants into believing that the process is good for them when it is in fact bad. In essence, they can use the appearance of a fair procedure as an inexpensive way to co-opt them, while in fact providing outcomes that are to their detriment.
The research, described in “Tell It to the Judge: Procedural Justice and a Community Court in Brooklyn,” (Avram Bornstein, et al, Political and Legal Anthropology Review
, November 2016), sought to determine which of these perspectives was true for the community court by asking two questions:
- Does procedural justice encourage legitimacy by treating people respectfully or by providing more favorable outcomes?
- Does procedural justice encourage false consciousness among community residents? That is, are authorities using it to co-opt the community?
To answer these questions, the research team interviewed 100 neighborhood residents and 200 offenders who were referred to community court. The Red Hook community was one in which the police had a zero tolerance policy and often stopped residents for minor infractions, or simply because they suspected drug possession. This led residents to mistrust the police and to see their behavior as disrespectful and unfair. This contrasted sharply with their opinion of the judge and staff at the community court, whom they saw as caring and fair. They also saw the outcomes of community court as more lenient and more helpful, as compared to the outcomes of traditional court. In the Red Hook Community Court, outcomes included providing services to the offenders, such as GED classes and drug treatment. The community members contrasted this with the exclusive use of punishment in traditional court.
The research team concluded that both groups gave legitimacy to the community court because of the respectful treatment of the offenders, but were mindful of the fairness of the outcomes as well. When they compared their experience in community court to their experience with both traditional court and the police, they saw the community court as more legitimate and compassionate. According to the researchers, this disproves the theory that procedural justice is simply a useful tool for authorities to co-opt citizens.
While this research may not surprise those of us in the ADR field, it is good to examine one’s beliefs from time to time, and to test one’s assumptions. I’m happy to report that in this particular context, our beliefs have been upheld.