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When Is Justice Fair? An Integrated Approach to the Outcome Versus Procedure Debate

Published online by Cambridge University Press:  20 November 2018

Jean M. Landis  and
Lynne Goodstein
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Abstract

Defendants’ perceptions of the fairness of their criminal processing outcomes have been the stated concern of some criminal justice reformers. Past research has suggested that these perceptions are influenced by characteristics of the outcome received as well as by characteristics of the process through which the outcome is imposed. This analysis tests a theoretical path model of perceived outcome fairness, which examines the relative influence of both outcome and process characteristics, using survey data collected from 619 prison inmates incarcerated in Minnesota and Illinois. The results indicate that factors related to both outcome and process significantly influence sample inmates’ perceptions of their criminal justice processing outcomes and together explain a substantial portion of the total variance. However, two process-related characteristics are found to be the most powerful predictors of perceived outcome fairness. Inmates’ perceptions that they are fairly treated by their lawyer, judge, and prosecutor are the strongest correlates of perceived outcome fairness, followed by the mode of disposition through which their outcomes are imposed; inmates who plea bargain are more likely than those who go to trial to perceive their outcome as fair.

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Articles
Information
American Bar Foundation Research Journal , Volume 11 , Issue 4 , Fall 1986 , pp. 675 - 707
Copyright
Copyright © American Bar Foundation, 1986 

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References

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2 E.g., the current proliferation of determinate sentencing reforms is based in part on the assumption that criminal sanctions, and the processes through which they are imposed, could and should be more fair than those existing under indeterminate systems of sentencing. Implicit, at least for some critics of indeterminacy, is the assumption that this increased fairness will be perceived as such by the criminal offender. Another arena of reform debate centers around the practice of plea bargaining. Underlying many criticisms of this practice is the concern that for various reasons, e.g., due process shortcuts, diminished confidence in the attorney-client relationship, low visibility and consequent high incidence of coercion and abuse, plea bargaining is “unfair” in fact and is so perceived by criminal defendants.Google Scholar

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11 Tyler, supra note 8. Other theoretical support for the importance of the perceived relativity of outcomes could be found in the underlying premise of psychological and adaptation-level theories. Tyler discusses the link between outcome satisfaction and expectations that is inherent in such theories: outcomes that are worse than expected result in dissatisfaction. He goes on to demonstrate empirically that expectancies likewise affect perceptions of outcome fairness. This point is supported by J. H. Mc-Ginnis & K. Carlson, Offenders' Perceptions of Their Sentences, 5 J. Off. Couns. Serv. & Rehab. 27 (1981). From this perspective, inmates who receive sentences that are congruent with what they anticipated should be more satisfied than those whose sentences are more severe than anticipated. Concomitantly, those who have the benefit of realistic expectations are in a better position to be satisfied by the received outcome than those whose expectations are unrealistic.Google Scholar

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19 That “voice” or process control has value in and of itself regardless of its actual influence on decisions is the value-expressive interpretation of the role of voice. The rational, or social-exchange, model of the influence of voice hypothesizes that voice is important only when participants believe that their expressed opinions will actually influence decision making. This rational model also suggests that under some circumstances process control through voice, without actual decision control, can heighten perceptions of injustice and dissatisfaction. E.g., when participation is an obvious formality for a preordained decision, participants may react with anger and frustration. For a concise review of the literature on process control, see Tyler et al., supra note 4; P. Houlden, S. LaTour, L. Walker, & J. Thibaut, Preference for Modes of Dispute Resolution as a Function of Process and Decision Control, 14 J. Exp. Soc. Psychology 13 (1978); C. Hulin & B. Maher, Changes in Attitudes Toward Law Concomitant with Imprisonment, 58 J. Crim. Law & Criminology 245 (1958); E. A. Lind, S. Kurtz, L. Musante, L. Walker, & J. Thibaut, Procedural and Outcome Effects on Reactions to Adjudicated Resolution of Conflicts of Interest, 39 J. Pers. & Soc. Psychology 643 (1980).Google Scholar

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24 See Heinz, , supra note 12, for criticism of inferring the results of these experimental studies to the “real life” of the criminal court.Google Scholar

25 Tyler, supra note 8.Google Scholar

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28 Dershowitz, supra note 1. The focus of this study, “perceived outcome fairness,” is based on the assumption that perceptions of outcome fairness are conceptually distinct from perceptions of treatment by criminal justice participants. It is here reasoned that such treatment is a separate issue, as it is integral to the adjudication and sentencing process and is temporally antecedent to the actual outcome decisions. Therefore, evaluations of how one is treated throughout criminal justice processing is conceptually aligned with procedure rather than outcome. Traditionally, social-psychological studies of procedural justice treat evaluations of outcomes and procedures as independent. Thibaut & Walker, supra, note 17; Walker et al., supra note 17. However, this practice has met with recent criticism alleging that criminal defendants are unidimensional in their evaluations of fairness (see Heinz, supra note 12). Such criticism notwithstanding, for the present exploratory purposes the face validity provided by the conceptual distinction and the temporal relationship to the outcome support the distinction between the perceptions of treatment and perceptions of outcome. This approach finds some support in Walker et al.'s finding that the relationship between the two perceptions is unidirectional: perceptions of outcome fairness had no effect on perceptions of procedural fairness.Google Scholar

29 The Supreme Court has recently reinforced the notion that indigent clients should not expect meaningful input into the presentation of their case. In Jones v. Barnes, 463 U.S. 745 (1983), the Court ruled that appointed counsel is not required to present on appeal all nonfrivolous points that are requested by the client.Google Scholar

30 Casper, supra note 3.Google Scholar

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36 The statistical technique used for analysis, which required listwise case deletion, was responsible for the reduction in the number of inmates for whom data were submitted for analysis. Comparisons were made between the inmates included in the LISREL analysis and those respondents who were excluded due to missing data; these results are shown in the following tabulation:Google Scholar

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38 The distribution of this variable could contradict the idea that inmates are a heterogeneous group that as a whole is not inclined to automatically bemoan the unfairness of their treatment. As the majority of inmates sampled perceived that their sentences were more severe than those usually received for similar offenses, it could be argued that these assessments probably were not accurate, but instead reflected either conscious disclaimers of the severity of the offense(s) committed or a subconscious defense against a negative self-conception. A third possibility, however, could be that the inmates sampled were in fact accurate in their perceptions, i.e., the majority actually did receive more severe sentences than were usually given for similar offenses. In an attempt to investigate the accuracy of inmates' perceptions, a subsample of 596 inmates, selected on the basis of sufficiency of information, were categorized according to their “actual relative sentence length”: (1) those who actually received more severe sentences than was usual in their offense category (upper 33d percentile), (2) those who received the “usual” sentence for their offense category (middle 33d percentile); and (3) those who received a lesser sentence than was usual (lower 33d percentile). Inmates' actual relative sentences were then crosstabulated with their perceptions, yielding the following results: 42% did perceive that their sentences were more severe than usual when they were in fact either equal to the usual or less than the usual; 44% were accurate in their perceptions; and 14% perceived that they received less severe sentences than usual, when they had in fact received either usual or more severe sentences. These results suggest that inmates were just as likely to be accurate as they were to misperceive that they have been sentenced with unusual harshness. However, contrary to Casper's 1978 findings regarding the accuracy of his sample (supra note 7), our sample inmates were more likely to misjudge the relative severity of their sentence than they were to be accurate, and they tended to err on the side of severity: they were more likely to misperceive that their sentences were more severe than was usual than they were to misperceive that they were less severe than usual. Although the results of this analysis are interesting in and of themselves, particularly with regard to the heterogeneity issue, we maintain that inmate perception of relative sentence is the variable germane to inmate perceptions of fairness. Future researchers may want to explore what “predispositional” effect, if any, misperceptions of severity have on perceptions of outcome fairness; however, the present data set does not contain sufficient information for an analysis of this kind, nor is such an analysis necessary for examination of the present research questions.Google Scholar

39 Preliminary tabular analysis revealed that a substantial number of inmates who had pled not guilty mistakenly answered the question designed to identify plea bargainers. It further revealed that all these inmates who had pled not guilty indicated that they had done so because they hoped for leniency. As this unanticipated group of responses complicated the use of the plea-bargaining variable, the new variable “mode of disposition” was created that allowed for the separation of those who pled not guilty and those who pled guilty in hope of leniency. The following tabulation shows the relationship between plea and reason for pleading guilty:Google Scholar

40 Casper, supra note 7, noted that it is “difficult to separate the process of plea bargaining from the belief that it instills in the defendant that he has obtained a more lenient sentence.” In our sample, those who plea bargained (32.7%) were only slightly more likely than those who pled guilty with no guarantees to perceive that their sentences were less severe than sentences usually received for similar offenses (29.3%); however, those who went to trial (18.6%) were much more likely to perceive their sentences as more severe than usual than were inmates who either pled guilty or plea bargained. The relationship is shown in the following tabulation:Google Scholar

41 Casper, supra notes 3 & 7; Tyler et al., supra note 4.Google Scholar

42 Walker et al., supra note 17; Tyler, supra note 8; Heinz, supra note 12.Google Scholar

43 Casper, supra note 7.Google Scholar

44 Id.Google Scholar

45 D. Brereton & J. Casper, Does It Pay to Plead Guilty? Differential Sentencing and the Function of Criminal Courts, 16 Law & Soc'y Rev. 45 (1982).Google Scholar

46 Berman, J., Parolee's Perceptions of the Justice System: Black-White Differences, 13 Criminology 507 (1976); Alpert & Hicks, supra note 32; Casper, supra note 7; Krohn & Stratton, supra note 33.Google Scholar

47 Path analysis, using the statistical package LISREL, has been selected for analyzing the proposed model. This technique not only enables the researcher to examine the relationship between independent variables and the ultimate dependent variable but also sheds light on those linkages among prior variables. It allows for a more thorough understanding of the phenomenon under study than simply correlating independent and dependent variables. See Asher, H., Causal Modeling (Beverly Hills, Cal.: Sage Publications, 1976).Google Scholar

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49 Id. 48; M. K. Miller, Potentials and Pitfalls of Path Analysis: A Tutorial Summary, 11 Qualitative & Quantitative 329 (1977).Google Scholar

50 A clear interpretation of this relationship is not possible, as it is conceivable that the charge of conviction for inmates who plea bargain more often represents the result of the bargain rather than the harmfulness of the behavior. On the other hand, it could be argued that due to the general practice of overcharging, the “bargaining charge” is an accurate reflection of the actual harm done.Google Scholar

51 Thibaut & Walker, supra note 17; LaTour, supra note 17; Walker et al., supra note 17; Houlden et al., supra note 19.Google Scholar

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53 Tyler et al., supra note 4. See also note 19.Google Scholar

54 Casper, supra note 3, at 241.Google Scholar

55 Tyler et al., supra note 4.Google Scholar

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