Incorporating Procedural Fairness into Community Supervision

The evidence supporting the importance of procedural fairness (PF) in maintaining judicial legitimacy and improving defendant outcomes is significant. PF refers to the idea that courts and other criminal justice institution can create a process that is universally perceived as fair and impartial using four key components: voice, respectful treatment, neutrality, and trust.  Substantial evidence establishes that individual defendants are more likely to accept judicial decisions and obey court orders if a judge applies these four key principles.^[1] The evidence underscores that courts and other criminal justice institutions can establish a process perceived as fair and impartial across the board by integrating four key components.

Research exploring the effects of procedural fairness (PF) within the realm of probation supervision is more limited. But a recent study conducted by the Urban Institute suggests, that integrating PF principles into community supervision can result in reduced rates of probation violations.

Another study suggests that the components of PF, in a supervision setting, depend upon the supervising officer developing a rapport and building communication with the probationer.^[2]  Probation officers who prioritized building a rapport with individuals on their caseloads (offered courteous greeting, practiced active listening, solicited input in case planning, etc.) had lower recidivism on their caseloads than officers who employed a more surveillance focused approach.^[3] When a probationer feels that they have the ability to participate in a case by expressing their viewpoint, there is a reduction of re-arrests and positive drug tests.^[4]  

On the other hand, a sense of unfairness often emerges from the surveillance-focused approach to supervision, which characterized the “crime control” era of the United States criminal justice system.^[5] This approach prioritizes enforcement over rapport-building in the probation role, emphasizing compliance through the threat of revocation and subsequent incarceration.^[6] This approach, according to one study, increases the number of violations.^[7]

Combining Procedural Fairness and Probation 

So, what are the best ways to promote PF in probation supervision? It starts with constant, clear, and understandable communication. Probation officers should provide written materials that clearly describe probation conditions, and then review the written material with the probationers using plain language to ensure that they understand the information provided. They should also carefully explain to the individuals how violations can result in sanctions or revocation of their probationary status. This ensures they understand what is expected and the consequences of noncompliance.  The goal is to improve compliance and reduce confusion.

Next, it is important to allow for meaningful participation by giving those on probation a voice. This means providing them an opportunity to participate in the decision-making process and ensuring that their voice is heard. Probationers should be given the ability to express their concerns, and present evidence and arguments in support of their case.   Providing that opportunity ensures that probationers feel heard and valued in the decision-making process.  This in turn will increase compliance and improve outcomes.

Respectful treatment is the second key component of promoting PF in probation supervision. Treat probationers with courtesy and dignity, avoiding stigmatizing language or behaviors, and listening to their concerns or questions. Giving praise is a particularly important way of showing respect to probationers, which has been shown to improve outcomes.^[8]

Neutral decision-making is another key element in promoting PF in probation supervision. This means using objective criteria and evidence to make decisions.   Personal biases or prejudices can and do reduce supervision success.^[9]  Therefore, it is important to ensure that clear explanations for decisions are given and understood. Neutral decision-making can help to ensure that probationers are treated fairly and equitably, regardless of their individual characteristics or circumstances. It can also help to reduce the potential for bias or discrimination in decision-making.

Finally, earning probationers trust is critical to supervision success.  Probationers who believed that their supervisor can be trusted to be fair and treated them with respect reported fewer days of drug use 18 months into the program.^[10]  A probation officer must be knowledgeable about the individual.  A study of Judges established that those with high positive attributes (i.e., judges who were respectful, fair, attentive, enthusiastic, consistent, predictable, caring, and knowledgeable) were able to establish trust, which led to reduced participant drug use when compared to judges who were not considered to be trustworthy.^[11] Judges who were highly trusted were almost twice as effective in preventing drug use as judges who were not highly trusted.^[12]  This same effect can occur for probation officers.

Over 4 million reasons to incorporate Procedural Fairness with Probation

For supervision to be successful, a probation officer must provide probationers with an opportunity to voice their concerns and a sense that they’re treated with respect by a neutral and trustworthy authority. Considering the substantial number of individuals under community supervision in the United States—approximately 3.5 million on probation and another 878,000 on parole, as reported in a 2020 study—enhancing successful outcomes, such as behavior change and reduced recidivism, holds the potential for a significant reduction in crime.

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^[1] https://justicespeakersinstitute.com/wp-content/uploads/2019/09/CR52-1WhitePaper.pdf

^[2] https://www.pnas.org/doi/full/10.1073/pnas.2018036118

^[3] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8277152/

^[4] https://www.ojp.gov/ncjrs/virtual-library/abstracts/are-supervision-practices-procedurally-fair-development

^[5] Paul Cromwell, The Evolving Role of Parole in the Criminal Justice System, in CRIME & JUSTICE IN AMERICA: PRESENT REALITIES AND FUTURE PROSPECTS 405, 411 (Wilson R. Palacios et al. eds., 2d ed. 2002) 

^[6] Id.

^[7] https://www.jsatjournal.com/article/S0740-5472(15)00187-7/fulltext

^[8] Id.

^[9] https://justicespeakersinstitute.com/wp-content/uploads/2019/09/CR52-1WhitePaper.pdf

^[10] Id.

^[11] Id.

^[12] Id.