Role of voice in the legal process*

• Author: Liana Pennington,Amy Farrell
• Date: 01 May 2019
• DOI: http://doi.org/10.1111/1745-9125.12205
• Published date: 01 May 2019

Received: 27 December 2017 Revised: 27 November2018 Accepted: 27 November 2018

DOI: 10.1111/1745-9125.12205

ARTICLE

Role of voice in the legal process*

Liana Pennington1Amy Farrell2

1Department of Criminal Justice, Saint

Anselm College

2Department of Criminology and Criminal

Justice, Northeastern University

Correspondence

LianaPennington, Depar tment of Criminal Jus-

tice,Saint Anselm College, 100 Saint Anselm

Drive,Manchester, NH 03012.

Email:lpennington@anselm.edu

Fundinginformation

GardinerHowland Shaw Foundation; North-

eastern University;National Science Founda-

tion,Division of Social and Economic Sciences,

Grant/AwardNumber:1060009

∗Wewould like to thank Jody Miller and three

anonymousreviewers for their helpful sugges-

tions.We are grateful to Patricia Ewick, Donna

M.Bishop, and Mar y E. O’Connell, as wellas

the Violenceand Justice Research Lab at North-

eastern Universityfor comments on an earlier

versionof this ar ticle.We also thank the many

parents,juveniles, and other family members

whowere willing to share their stories for this

research.

Abstract

As communities face unrest and protest because of per-

ceived racial bias and decreased trust and confidence in the

criminal justice system, it is critical to explore mechanisms

that foster institutional legitimacy. Voice is a central

element in the procedural justice framework because it is

anticipated to promote process control as well as a shared

understanding between institutions and communities. As

a concept, however, voice is undertheorized. Measures of

voice used in legitimacy research may result in oversim-

plification of the concept, not fully capturing the struggles

disadvantaged people face in trying to exercise influence

in the court system. Through the use of rich data from

qualitative interviews with youth and families involved

in the juvenile justice system and in-depth observations

of juvenile court events, we explore what voice is, the

mechanisms through which people try to assert voice, and

how voice matters in the legal process. Respondents sought

voice for many reasons, including to validate their experi-

ences, to affirm their membership in a community, and to

assert concerns about perceived police misconduct. Con-

trary to traditional conceptualizations of voice as a static

event (e.g., having voice or not having voice), voice was

a process of negotiating dialogue between court officials

and court participants throughout the legal process.

KEYWORDS

juvenile justice, legal mobilization, legitimacy, procedural justice, voice

Criminology. 2019;57:343–368. wileyonlinelibrary.com/journal/crim © 2019 American Society of Criminology 343

344 PENNINGTON AND FARRELL

1INTRODUCTION

The American criminal justice system is undergoing a crisis of legitimacy (Fagan, 2008). Public con-

fidence in the system is near historic lows (Norman, 2016), and throughout the country, communities

are experiencing unrest concerning police misconduct and abuse targeted in poorer neighborhoods and

against people of color (Guarino, Lowery,Ber man, & Moyer,2015; Wines, 2014). The treatment of the

poor and members of racial minority groups by the criminal justice system has been called the “civil

rights issue of our time” (Popovici, 2015). A great divide has emerged in people’s perceptions of the

justice system, with Black individuals reporting much less trust and confidence than Whites in both

the police and the courts (Newport, 2016; Rottman & Hansen, 2001; Tyler & Fagan, 2008). This loss

of legitimacy threatens the healthy functioning of our system of justice, particularly when the commu-

nities that least trust the criminal justice system are disproportionately affected by and dependent on it.

Having voice and being able to assert claims during interactions with legal authorities is a key factor

in individuals’ assessments of whether authorities act fairly and are legitimate (Baker et al., 2014;

Cohen-Charash & Spector, 2001; Lind & Tyler,1988). When individuals believe they have been treated

fairly in the justice process, they are more likely to see the justice system as legitimate (Lind & Tyler,

1988; MacCoun, 2005; Tyler, 1990). Voice also has importance in more multidimensional under-

standings of legitimacy that incorporate dialogue about lawfulness (see Bottoms & Tankebe, 2012;

Tankebe, Reisig, & Wang,2016). Despite widespread ag reement about the importance of voice in the

legitimacy process, little empirical work has been focused on describing what voice is, the mechanisms

through which people assert voice, or how voice matters in the legal process. The measures of voice

commonly used in procedural justice and legitimacy research may resultin an oversimplification of the

concept, not fully capturing the struggles disadvantaged people face in trying to wield influence in the

court system. Although scholars have established that individuals often perceive themselves as having

little voice in their interactions with police and courts, we know less about how this process impacts

legitimacy.

The traditional legitimacy framework has been focused on procedural justice as a primary

mechanism to garner people’s obedience and deference to legal authorities (Kaiser & Holtfreter,

2016; Murphy, Tyler, & Curtis, 2009; Sunshine & Tyler, 2003; Tyler, 1990). Researchers testing

the relationship between procedural justice concepts such as voice and perceptions of fairness and

compliance with legal authorities have focused more narrowly on police interactions with the public

(Jackson & Bradford, 2010; Mazerolle, Bennett, Davis, Sargeant, & Manning, 2013; Sunshine &

Tyler, 2003; Tyler & Fagan, 2008), situations that differ in important ways from the more formalized

court settings where officials explicitly call attention to rights and procedures. Legitimacy research is

aimed at expanding the focus to processes of building shared values between diverse legal authorities

and the communities they serve. Bottoms and Tankebe (2012) suggested incorporating a “dialogic

understanding of legitimacy” where claims of power-holders are shared, accepted, and critiqued

by those who ultimately convey on them legitimacy (p. 169). The findings from recent scholarship

show support for the assertion that legitimacy is most effectively garnered when the law represents a

shared moral alignment (Jackson et al., 2012; Tyler & Jackson,2014) and t hat social order arises from

cooperation as opposed to from threats of punishment (Erickson & Parent, 2007). Legal authorities

can have goals other than deference and obedience, including building cooperative relationships with

community members and promoting public engagement (Jackson et al., 2012; Tyler& Jackson, 2014).

Moral alignment is predicated on the ability to find and further share values between community

members and legal authorities. Yet empirical tests of legitimacy are mainly focused on perceptions

of the general population (Tyler, 1990; Tyler & Huo, 2002; Tyler & Jackson, 2014), a group that

may differ significantly from those directly experiencing the criminal justice system. The degree