Victims’ perceptions of procedural and distributive justice of a class action lawsuit may shape legal case theory, future injunctive relief, and policy directions primed for the prevention of sexual violence within prisons. This is the bottom line of a recently published article in Psychology, Public Policy, and Law. Below is a summary of the research and findings as well as a translation of this research into practice.
Featured Article | Psychology, Public Policy, and Law | 2017, Vol. 23, No. 1, 39-52
Do Sexually Victimized Female Prisoners Perceive Justice in Litigation Process and Outcomes?
Sheryl P. Kubiak, Michigan State University
Hannah J. Brenner, Michigan State University
Deborah Bybee, Michigan State University
Rebecca Campbell, Michigan State University
Cristy E. Cummings, Michigan State University
Kathleen M. Darcy, Michigan State University
Gina Fedock, University of Chicago
Rachael Goodman-Williams, Michigan State University
Sexual victimization during incarceration has been declared cruel and unusual punishment. Although the Prison Rape Elimination Act mandated new standards, the problem persists. Class action litigation is an alternate strategy to ensure prisoners’ rights are protected. However, even when such litigation is successful, there is little known about the participants’ perceptions of whether justice was attained in the process (procedural) or outcomes (distributive). Neal v. MDOC (1998), a class action settled on behalf of 809 women sexually abused by staff during incarceration, is a landmark case with national implications. Understanding participant perceptions can enhance those implications. Using surveys mailed to participants residing in the community with valid addresses (n = 399), 156 women responded (39% response rate). Three scales measured procedural/distributive justice and a path analysis used explanatory variables as multivariate regressors on the scales to determine how individual and contextual factors affected perceptions. Perceptions of justice were positively associated with women’s motivations to ‘do the right thing’ and their feelings of empowerment. Perceptions of prison improvement were positively related to themes that the corrections department was punished; negatively associated with staff retaliation. Predictably, women who were currently unemployed and seeking employment had lower scores on the Financial Benefit Scale whereas those endorsing security from settlement funds rated it higher. Because of the intersections of race, class, gender, and legal status, incarcerated women are rarely heard or validated. This lawsuit provided an opportunity for both. Importantly, women less positive about justice wanted their individual perpetrators punished—an unattainable goal in this class action.
class action litigation, justice, prisoners, sexual victimization, women
Summary of the Research
“Over the past 25 years, a variety of policy changes and legal actions have attempted to curtail sexual victimization of confined individuals in prisons, jails, and detention centers. The Supreme Court declared sexual victimization during incarceration cruel and unusual punishment (Farmer v. Brennan, 1994), emboldening the passage of the Prison Rape Elimination Act (PREA) in 2003. Although PREA establishes standards to address and prevent abuses in prison, the problem persists as many states have yet to fully implement. Recent national surveys in the U.S. estimate that 4% to 10% of prisoners experience sexual victimization during incarceration. Surprisingly, across studies, correctional staff members reportedly perpetrate about half of the victimization incidents” (p. 39).
“While both PREA and the Supreme Court decision sought national-level reforms, another strategy has been to employ the use of litigation. In particular, class-action lawsuits are viewed as an integral legal strategy for advancing changes in correctional policies/practices, as well as offering monetary and injunctive relief (e.g., putting a stop to harmful behavior) especially for sexual assaults perpetrated by correctional staff. Although scholars have examined the general merits of class action litigation as a legal strategy on behalf of prisoner plaintiffs, there is a dearth of research on the individual class member’s perceptions of fairness regarding the legal process and outcomes associated with any such litigation” (p. 39-40).
“The primary remedies of a class action lawsuit are monetary compensation, (“damages”) and/or equitable relief, such as an injunction to halt the defendant’s harmful behavior. The goal of civil action is not necessarily to protect public safety or punish the perpetrator of the criminal action, but primarily to ‘make the harmed person whole.’ Because only some of the class members have an active part in litigation and decisions are made on behalf of the class, class action lawsuits are critiqued by legal scholars as unconstitutionally denying victims procedural due process and for limiting litigant autonomy” (p. 40).
“Perceptions of justice and fairness are motivated by three conceptual factors: (a) maximizing self-interest, primarily in an economic sense, characterized as distributive justice; (b) the need for status, social value, and inclusion demonstrated by a respectful process, otherwise known as procedural justice; or (c) questions of basic moral right and wrong . . . Although the literature, and this study, are primarily interested in the integration of concepts related to procedural and distributive justice, it should be noted that the third conceptualization of justice, which focuses on moral rights and wrongs, provides the background for the research as well as the class action litigation understudy. Theories of justice framed by morality—moral preferences, moral conventions, and moral imperatives—mirror the human rights framework used to litigate the Neal v MDOC case” (p. 40).
“In civil litigation, distributive justice refers to the perceived fairness of amount and type of allocation in the forms of monetary and injunctive relief whereas in criminal law the outcome can be conceived as conviction versus no conviction, or severity of the sentence. Perhaps most interesting, from a legal perspective, is that perceptions of outcome favorability differ from perceptions of outcome fairness. In other words, even if the outcome favors one individual, that individual may perceive the outcome as unfair in relation to the group” (p. 40).
“Fair procedures fulfill an individual’s need to feel they are respected and valued members of society and have been referred to as procedural justice . . . Within litigation, the theory of procedural justice posits that any litigant is more likely to express satisfaction with the justice system when they are able to actively participate in the system, perceive that the process is respectful and fair, and have a voice in the proceedings. In addition, if litigants feel that the legal process is fair, they are more likely to accept the outcome as fair, even if the outcome is personally negative. Conversely, when procedural justice does not occur, participants may feel psychologically harmed or experience other negative perceptions regarding the justice or fairness of the legal process or findings” (p. 40).
“Historically in class action litigation related to prisons, injunctive relief has mandated changes to provide accessible mental health treatment, to improve conditions of confinement, to alter education in juvenile systems, and to implement active measures to prevent sexual victimization. A major gap in the existing scholarly work is the perspectives of the fairness of legal processes and outcomes from prisoners in any litigation . . . Taken together, victims’ perceptions of procedural and distributive justice of a class action lawsuit are essential components to fully evaluate the efficacy of the legal action. Such perspectives may shape legal case theory, future injunctive relief, and policy directions primed for the prevention of sexual violence within prisons” (p. 41).
“This study examines the experiences of incarcerated women who participated in a successful class action, Neal v. MDOC (1998). This class action was brought on behalf of women who had been sexually abused by correctional staff in Michigan prisons between 1993 and 2006. Neal v. MDOC (1998) is a historic case with far-reaching ramifications, in terms of legal precedent, for addressing custodial sexual abuse within prisons nationally. Despite this, there has been little systematic inquiry into the satisfaction of prisoner plaintiffs with this or any legal action, and specifically regarding their perceptions of procedural and distributive justice. Therefore, this study examines how women involved in the lawsuit retrospectively assess the process and outcomes of this litigation, expressed in terms of overall justice or total fairness” (p. 41).
“The survey instrument utilized for this study contained open and closed-ended questions that queried multiple domains related to experiences of the legal process as a class member and satisfaction with litigation outcomes. From the closed-ended questions three scales were developed to measure perceptions of fairness and satisfaction with the litigation and its outcomes, and serve as the dependent variables in further analyses: Total Justice Scale, Prison Improvement Scale, and Financial Benefits Scale. Several closed- and open-ended questions were examined as possible correlates of the dependent variables. These include the injury level experienced, time of joining the litigation, as well as age, race, financial settlement amount, current employment status, time since release from prison, recidivism, and motivation for joining the litigation . . . Of the 399 surveys that reached class members, 156 returned them completed; this was a 39% response rate” (p. 43).
“Results from the survey on the closed-ended questions found that the mean of the Total Justice Scale was 3.69 (SD 0.98), denoting that collectively women’s perceptions of total justice were between neither agree nor disagree and slightly agree. However, when looking at the single item that asks whether women believe that “overall, justice was served,” the majority (60.7%) either agreed or strongly agreed with this sentiment. Three items in the Total Justice Scale queried procedural justice and three distributive justice items. Higher scores on items of procedural justice demonstrate that the majority of women agreed or strongly agreed that the litigation gave them voice (83.3%), was part of a healing process (75.3%), and allowed them to feel believed (89.1%). Conversely, items representing distributive justice indicate that fewer women agreed that the department (54.3%) or officers (51.0%) were adequately punished, or that they were adequately compensated for the harassment and abuse endured (41.5%)” (p. 45).
“The Prison Improvement Scale mean was 3.34 (SD 1.20), indicating that women with incarceration experience in the post-settlement period, may be ambivalent about the improvements since the mean reflects a score somewhat above “neither agree nor disagree.” However, individual scale items with higher mean scores indicate that the majority of women agree or strongly agree that prison policies have improved (63.8%), that it is safer to report abuse (60.3%), and that overall the prison environment is safer (62.4%). Lastly, the Financial Benefit Scale mean was 3.29 (SD 1.25), somewhat above “neither agree nor disagree”—also indicating variation among the women in their level of satisfaction with the settlement funds awarded to them. Although overall the majority of women agreed or strongly agreed that their lives were improved as a result of the financial settlement (64.6%), the women were less positive when asked whether the award improved their lives in prison (27.2%) or community (46.5%)” (p. 46).
“A path model was presented relating the explanatory variables with three aspects of satisfaction with the litigation; justice, prison improvement, and financial benefits. The Total Justice Scale showed relationships with a number of thematic codes as well as several other variables. Women who indicated that they had joined the litigation “because it was the right thing to do” had more positive views that justice had been served, as did those who mentioned that the litigation had given them a voice or made them feel empowered, that it had resulted in new policies, and that the department of corrections had been punished. Lower assessment of the extent to which justice had been achieved was related to mention that system change had been insufficient, that the individual perpetrators of sexual assault had not been punished, and to women’s dissatisfaction with the amount of money they received in the settlement. Women who received more than $30,000 in settlement also had lower assessments of the extent to which justice had been accomplished. Collectively, these variables accounted for 38% of the variance in responses to the justice scale” (p. 46).
“Several of the same open-ended responses were also related to the Prison Improvement Scale—new policies and punishment of the department of corrections (positive) and Insufficient System Change (negative). Women who mentioned retaliation by prison staff had a more negative view of prison improvement. Years since release from prison was also related to assessment of prison improvement, with those whose release was longer ago perceiving more prison improvement. Collectively, these variables accounted for 26% of the variance in the Prison Improvement Scale. Lastly, only two variables were related to the Financial Benefits Scale. Those who mentioned that the settlement provided them with a sense of security reported higher satisfaction with financial benefits, as did those who were currently unemployed and wanted a job reported. Together, these two variables accounted for 6% of the variance in the financial benefits scale. Not associated with any of the litigation satisfaction scales were the woman’s current age or race, the level of abuse severity, point at which they joined the litigation, or motivations for joining other than that it was the right thing to do” (p. 46).
Translating Research into Practice
“Much like previous procedural justice research that demonstrates that those who were given a voice and actively participated felt greater satisfaction with the litigation, we found that the women involved in this case felt they had voice and were believed and those who endorsed a feeling of empowerment through being able to voice their concerns, were more likely to perceive that justice was served. This finding was somewhat surprising in the context of a class action, as legal scholars argue that class actions deny participants procedural justice. However, the perceptions of prisoner plaintiffs in this case may be explained by context: their claims originated from the closed system of prison, where they were previously denied the ability to be heard. Moreover, due to the intersections of race, class, gender and legal status incarcerated women are a largely disempowered group who may have felt that their stories were never told. This opportunity to tell their stories in court, or to an attorney who took them seriously, may explain feelings of empowerment as a result of the entire legal process” (p. 47).
“Perhaps counterintuitively, those who received larger monetary awards also perceived lower levels of overall justice. This may be due to the concept of outcome favorability, which posits that even though the outcome favored an individual personally, she may have felt it was unfair to the group and have some feelings of guilt with her good fortune. In the Neal case there was an extremely wide disparity in settlement amount among the women . . . Although the precise amounts awarded to individuals may not have been public knowledge, there are few secrets among incarcerated women. It is plausible that those receiving greater awards knew others who suffered similar abuse, but received less. This may have evoked feelings of guilt at individual personal settlement in relation to the group” (p. 47).
“In addition to those who received greater awards perceiving lower levels of justice, those who were generally dissatisfied with their award also perceived lower levels of justice, especially in relation to the hurdles of the litigation. Perhaps, despite the best efforts of attorneys to monetize injury compensation, no dollar amount may eradicate the loss of self that is experienced in a sexual assault; particularly the helplessness and invasiveness of the staff-perpetrated abuse experienced by those who are incarcerated . . . However, it is important to note that many women endorsed the importance of the intangible benefits of the settlement, even if they were unhappy with their total amount in relation to others or in relation to the injury suffered” (p. 47).
“Relatedly, women who felt that the individual perpetrator was not punished perceived less overall justice. Although punishment of an individual perpetrator was never contemplated as part of this legal action—the only punitive measure in this type of civil rights action is against the institution, not the individuals—it is unclear whether women did not understand the goals of the specific type of litigation or remain frustrated that perpetrators were not criminally punished for their actions. Either way, the wish remained that officers would have been punished” (p. 48).
“Finally, women who expressed a motivation for involvement in the class as “the right thing to do” had higher perceptions of total justice. Because many of the women experienced great personal hardship for their involvement in the case, there seems to be a personal belief in a higher moral objective associated with the expected outcomes of the case. Although not expressly tested in our model, perhaps women’s beliefs that there are moral imperatives, despite group membership or status as prisoners are reflected in their perceptions of justice in this case. Certainly, the underlying legal theory used in the litigation was a human rights framework that stressed the basic dignity for all citizens, even those within the prison system” (p. 48).
Other Interesting Tidbits for Researchers and Clinicians
“Past research has shown that victims who participate in civil legal action may experience benefits such as positive mental health or feelings of empowerment. Previous studies have found that positive mental health indicators were related to perceptions of justice, but no such associations were found within our data. This may be attributable to our lack of a more precise measurement of mental health, or because the lawsuit lasted over a period of 13 years and was settled in 2009” (p. 49).
“In conclusion, assessing perceptions of justice from litigants—and specifically from women prisoners, a disempowered and rarely heard group, who were participants in a class action for sexual abuses by correctional staff—yields important information for crafting effective law and policy surrounding this issue. There are sharp contrasts between what litigants’ expectations, goals, and views of justice are and what different legal strategies have the capacity to provide. Theories of procedural and distributive justice have an important place in helping attorneys better advocate for their clients. Legal scholars often assess the best legal remedy based on what is most likely to succeed in front of a decision maker, but legal advocates must also be aware of how their clients define fairness and justice in order to craft the most effective legal remedy. Specifically, this study identifies that despite best efforts of attorneys to convey to their clients what is possible through a class action lawsuit, individuals may wish for more individual punishment, be dissatisfied with their settlement in relation to the rest of the group, or face unintended consequences despite system changes” (p. 50-51).
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