Processing

There are many ways to think of justice, and not all of them are mutually compatible. One element of the concept of justice is procedural justice, the application of theories of justice to the processes that are themselves designed to produce or enforce justice. This is often contrasted with substantive justice, or the justice of outcomes.

The philosopher John Rawls breaks down procedural justice into three categories, perfect, imperfect and pure. Perfect procedural justice entails a process that, when it is followed, guarantees a just outcome (as measured against an independent standard). Imperfect procedural justice, by contrast, creates high, but not perfect, odds of bringing about a just outcome when the process is followed properly. Pure procedural justice is different from the other two in that there is no independent standard to compare against, only the process itself.

One of the problems with public forms of justice procedure, like jury trials, is that they're often held to a standard of perfect procedural justice, with members of the public at all levels understanding themselves as informed enough as to what the correct outcome should be that they can judge whether or not the procedure is working properly by whether it returns a result that matches their individual understanding of what the outcome should be.

This BBC article about the trial of Derek Chauvin illustrates that. They selected three people here in the United States, and among other questions, asked them: "What do you think the outcome of this trial will be?"

These were the first part of the answers:

The evidence is there. The facts are there. The testimonies are there. Everything is there and we need to come out with a conviction for sure. I hope the jury is going to come back with the fastest verdict in history and find him guilty of the highest charges.

I think Derek Chauvin should be found guilty. He's got three different charges against him and I don't know the nuances of these different charges, but it's up to the jury to find the perfect charge to find him guilty.

It's difficult to predict, given the political correctness and extraordinary amount of pressure this jury is under.

Guess which of the three is a retired police officer. And I throw that in not to be snide, but only one of the answers doesn't openly presuppose the "correct" verdict. (Not, to be sure, any of the respondents failed to make it clear what they thought the verdict should be.) And police officers, one would expect, would have a different view of the trial process than most other people.

Given that in a jury trial, the jury is, by definition, the finder of fact, a jury trial is, realistically, much closer to pure procedural justice in intent. As a practical matter, determining substantive justice requires knowing the facts of the matter. And that's the jury's role. If facts were never in doubt, there would never be a need to try cases; they could all simply move to acquittal or sentencing. Whether it's due to some natural human habit for narratives or the influence of their social circumstances, people have a habit of forming conclusions and then expecting that the procedures of justice are intended to agree with them. For instance, when asked "What moments stood out to you the most?" one of the respondents (I'll let you guess which one) answered:

The testimony that George Floyd had no carotid artery damage was very compelling to me. This would indicate that he was not suffocated via the neck.

That assumption, that all suffocation would necessarily result in carotid artery damage, jumped out at me, so I decided to look it up. And found a National Center for Biotechnology Information article on Strangulation Injuries. In the Etiology section, it notes the following:

Many “submission holds” within the world of martial arts are known to place direct pressure on cervical structures and can result in strangulation injuries. Along similar lines, police and military combatants are given training on "vascular neck restraint." This effective, but controversial, approach to subduing a target can result in permanent and debilitating injuries or even death.[22]

(And note 22 reads as follows:) “Stellpflug SJ, Menton TR, Corry JJ, Schneir AB. There is more to the mechanism of unconsciousness from vascular neck restraint than simply carotid compression. Int J Neurosci. 2020 Jan;130(1):103-106.”

Based on this, I don't believe that it's true that a lack of carotid artery damage is an indication, in and of itself, that Mr. Floyd didn't not suffocate due to neck compression. Now, I don't know if the trial was televised in its entirety (I'll admit to not following it that closely.) but this could be a reason to avoid such coverage; members of the public are not the finders of fact, and giving them the impression that they should be can create problems (among which can be cherry-picking of testimony).

It's a safe bet that those people who regarded former officer Chauvin as innocent will suspect that the verdict was reached effectively under duress, to avoid social unrest, while had the verdict gone the other way. much of that very unrest would likely have been predicated on the idea that the fix was in from the start.

I suspect that there never will really be 100% acceptance of the idea of pure procedural justice. It's much the same with elections. While an election, by it's very nature, cannot have its final result compared to some independent outcome to see how well they match, time and again, people have protested election results because they believe they understand how it "should" have turned out. I think that a case can be made that what's commonly labelled "anti-democratic impulses" among many national Republicans is merely the sense that elections are broken when they don't return the "correct results," and that anyone who seeks to compare elections to some preconceived notion of right and wrong is liable to fall into the same tar pit.

But this is the problem with the fact that people are neither "angels" nor robots. People expect the processes of justice to serve their needs, and they don't always see the distinctions between their interests and perfect justice, even when those distinctions are pretty significant.