Effective Counsel Leading to Procedural Fairness

an unbalanced scaleI first learned about the concept of procedural fairness within justice systems in the early 2000s while working at the Department of Justice. The concept seems quite intuitive to me yet when observing court practices, I was struck by how many courts don’t naturally incorporate the elements of procedural fairness into their daily work.

The term procedural fairness and procedural justice are often used interchangeably. However, if you have heard from or read Judge Kevin Burke’s work on the topic, he places the emphasis on the importance of using the term procedural fairness. The idea is to focus on access and fairness, as opposed to access and justice. And I tend to lean towards using procedural fairness as well because it speaks to creating fair outcomes. Scholarly papers on procedural fairness recommend four key elements:

  • Respect for people and their rights
  • An individual’s voice
  • Neutrality of decision-making, and
  • Promoting understanding of the process

When thinking about what it takes to implement the procedural fairness elements, I see the role of public defense instrumental in helping courts improve their perceptions of fairness. An effective and well-resourced public defender should be able to have a direct effect in improving how a client perceives their court experience. For instance, taking time with the client could be perceived as being respectful by the client thus leading to a positive and fair experience. In order for a public defender to be able to spend this time with their client, s/he needs to have a reasonable workload and be well-resourced. In my opinion being well-resourced requires support and funding from state and local government. This ties directly to the first element of procedural fairness, respect for people and their rights, in this case, the right to counsel as afforded by the Sixth Amendment of the US Constitution.

A 2017 publication by the Center for Court Innovation, To Be Fair, interviews many criminal justice practitioners on their experiences as it pertains to procedural fairness in a courtroom. When asked about obstacles faced by court personnel in implementing procedural fairness, Melba Pearson, deputy director for the American Civil Liberties Union (ACLU) of Florida responded, “The biggest obstacle is funding. As caseloads increase, if you’re not increasing the number of staff, you’re going to have overworked prosecutors and defense attorneys who are not able to really take the time with each case as they should. And in not being able to take the time, procedural justice gets affected because you take shortcuts.” In order to ensure an individual’s voice is being heard, attorneys on both sides need to take the time to understand the case, and defense attorneys need to have enough time with their clients and help them articulate and voice their story in court.

Another dear friend of mine, Leah Garabedian, former chief criminal justice strategist in Harris County, Texas, was asked about the importance of procedural fairness. She responded, “We have to start somewhere, and I believe that procedural justice allows us to start from a place that has substance. It has research behind it and has a real measure of impact. When we don’t adequately fund and politically support the function of defense, what we end up with is a system that is unbalanced. We don’t have a check on those other factors.”

The findings in Engaging System Actors in Support of the Right to Counsel echoes the concerns laid out by those interviewed in To Be Fair. One of the research-based recommendations listed in the document also promotes how effective public defense is at the heart of being procedurally fair in the courtroom.

“Root the message in the Constitution, fairness, and efficiency. A core message that resonated across all stakeholder groups stresses the values of fairness and equal justice and the fact that public defense is a constitutional right. It should also tie improved public defense to the overall efficiency of the criminal justice system.”

An effective and well-resourced public defense system is key to a fair justice system. Unfortunately, without support for public defense delivery systems, we risk not only being procedurally unfair, we risk not abiding by the constitutional Right to Counsel.

Learn more about our national Right to Counsel campaign here.