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American Bar Foundation

The Process Is the Punishment: Handling Cases in a Lower Criminal Court by Malcolm M. Feeley Review by: Jerome H. Skolnick American Bar Foundation Research Journal, Vol. 6, No. 1 (Winter, 1981), pp. 283-286 Published by: Wiley on behalf of the American Bar Foundation Stable URL: http://www.jstor.org/stable/828030 . Accessed: 13/03/2014 00:59
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Book Reviews
MALCOLMM. FEELEY,

The Process Is the Punishment: Handling Cases in a Lower Criminal Court. New York: Russell Sage Foundation, 1979. Pp. xxii + 330.
Reviewed by JEROME H. SKOLNICK

This book confrontsus with a perplexing moraland publicpolicy dilemmafor the Americancriminaljustice system. That dilemma:The more our lower criminal courtsachievewhat Feeleylabels "the adjudicative ideal"-the ideals of due process for individualsaccusedof minor crime-the more we raise the transaction costs of offering justice. Paradoxically, the costs of justice, even when defense attorneysare providedfor the indigent,are borne largelyby the accused in the lower criminal courts. If that is true, and Feeley presentsconsiderable evidence to show that it is, then the process, he concludes, is the punishment-hence the title of this book. Thus, the more process our adjudicative ideals offer in the name of preventingundeserved punishment,the more punishment we actuallyimpose. That fundamentalcontradiction,that paradox,is the major concern and conclusion of this book and, its author argues, the major problemof America'slower criminalcourts. Feeley's study is of the lower court in New Haven, Connecticut,the Court of Common Pleas. The court has sentencingjurisdictiononly over minor felonies and misdemeanors.That feature of the studied court is importantto all of the outcomesin Feeley'sstudy because,given the probabilities of minor penaltiesin the lower courts, the costs of avoiding these are likely to outweighthe seriousness of the penaltiesthemselves.But that might not be true for courts involved with adjudicatingmore serious accusationsof crime. his researchon a New Haven court Feeley defends, with some persuasiveness, as being fairly representative of lower criminalcourts in urban America. He arguesthat the right questionis not whetherNew Haven should be regardedas typical:"The correcttest," he writes, "is not to show that New Haven is typical of all Americancities or typicalof middle-sized cities, but ratherto show that it is not so atypical as to be unique" (p. xx; emphasisin original). Actually, the communityof New Haven is atypical. But I suspectthat the structuralfeatures and dynamicsof New Haven's lower criminalcourt are fairly widespreadin
Jerome H. Skolnick is Professor of Law at the University of California, Berkeley.

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America. New Haven itself is a peculiar city. It is not "middle-sized" but rather small, with a population of 138,000. In size it is a lot closer to Berkeley than to Oakland, Detroit, or Atlanta, and would be no more than a neighborhood in New York or Chicago. Moreover, the presence of Yale University (the city's largest employer) affects who lives in New Haven. But the traditionally hostile relationship between town and gown means that Yale (and particularly its Law School) has never had a particularly strong impact on the operations of the lower criminal court of this smallish community. But even if we agree that New Haven's Court of Common Pleas is sufficiently typical of the operations of America's urban criminal courts, we still might benefit from being told more about Feeley's evidence for his conclusions on this score. He says (on p. 9) that he "surveyed" over 1,600 criminal cases and observed the court "over a period of several months," which seems to me rather a short time for a participant-observation study deserving of a book-length report. Apparently, Feeley started with one research strategy and later switched to another: As I immersed myselfin the operationsof the court, firstto collectdata and later I came to appreciate the ways in whichorganization as a participant-observer, and attitude affected the handlingof cases, factors which are not easily capturedin analysesand which are most visibleduringratherthan before the requantitative searchprocess.I also beganto questionthe value of quantitative analysisin devellowercriminalcourtsin analysesof criminalcourts, particularly oping explanatory and importantoutcomesare often whichofficial recordsare notoriouslyunreliable data collecby subtledifferencesnot easilycapturedon a close-ended distinguished tion form. (Pp. 123-24.) From my own experiences investigating American criminal justice, I fully agree. But I also think that the author then undertakes an obligation to tell us more about his qualitative methods. What does he mean when he says that he observed "over a period of several months." Does he mean that he was at the courthouse every day or two days a week? How many months are "several"two, three, six, ten? How much of his work was based on interviews? Were these structured or unstructured? When they were unstructured, were they in the office of a court functionary or was he asking questions of the functionary as he observed the functionary's work? One could go on to ask other questions: Were the several months consecutive months? Or were they spread out throughout the year so as to account somewhat for seasonal variations? In what year or years were the months? Were there seasonal variations? If there were, what were the subtle factors affected by these? If there is a weakness in this study, I think it lies in the author's switch from relying principally on quantitative analysis to relying principally on qualitative analysis. Some of the qualitative analysis is first rate but not as rich and textured as it might have been had the author planned for a participant-observation study. Nevertheless, the book's findings are well worth the attention of the serious criminal justice student, and the analyses reveal a thoughtful, probing, provocative intelligence. The book begins by arguing that the lower criminal courts are informal places

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with outcomes based more upon the qualities of the relationships among the legal actors than upon strictly legal factors. These actors include the judges, the attorneys, and the bail bondsmen (who play a more important role analytically or normatively than most people would accord to them). Feeley's writings about the bondsmen offer the best descriptive material in the book and whetted my appetite for more. The bondsmen turned out to be the lubricants of a creaky system. But for the two bondsmen, writes Feeley, "the rapid-paced processes in the courtroom might have ground to a halt, an unpleasant thought for court officials who were anxious to get through the day as early as possible. Prosecutors, judges, and defense attorneys turned to these bondsmen for answers as to the whereabouts of other attorneys and defendants, which they knew because they were constantly moving about the courthouse during the day" (p. 107). Also, bondsmen do all sorts of other favors for people. They take court personnel out to lunch. They throw parties for prosecutors and for court staffs. They pick up the tab at bars for defense attorneys and policemen. What Feeley describes is a phenomenon that we are by now pretty familiar with, namely, that the more we delve into the depths of the criminal justice system, the more informal, discretionary, and personal is the justice system. Yet Feeley concludes that, on balance, the system works rather well or at least better than any alternatives that could be imposed, even though he recognizes the limitless, virtually lawless discretion involved in the lower court adjudicative process. What others might interpret as scandal, Feeley interprets as an inevitable, positive, functional response to a difficult and paradoxical structural situation. In the main, functional analysis tends to affirm the status quo. Feeley's functional analysis is no exception. Thus, Feeley concludes that discretion is preferable to process, at least in the lower criminal courts. In these courts, he argues, the problem is not the heavy caseload but rather the costs of adjudication to the client. He thinks that the ideals of due process are laudable but that their practice is terribly time consuming and costly. He argues against Lon Fuller's notion of the distinction between the morality of mediation and the morality of adjudication. Fuller suggested that slipping from one system to another and back again undermines the integrity of the adjudicative process. But Feeley concludes that Fuller is wrong, at least for these courts. Here, he argues, the official participants can assume alternative roles without harming the interests of the defendants. He writes: A judge who appliesformal,preciserulescan turn aroundand cajolethe complainant and defendantinto reconciling theirdifferences,or give paternalistic adviceto a defendant. . . . By shiftingroles withinthe same forum, no role can maintainlegitimacy,and the moralityof the entire processis undermined.Ironically,the imto the feelingthatjusticeis not beingdone. Suchtenpulseto do justicecontributes sions are inevitablein any complexsystemof law, but they are particularly prominent in the lowercriminalcourtswherethe stakesare usuallylow and the desirefor swift justice is high. (Pp. 289-90.) The adjudicative ideal, Feeley argues, is concerned with determining whether an accused person is guilty or innocent. By contrast, in the lower criminal courts most defendants don't care whether they are guilty or innocent. They care about

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two things: speed of process and penalty. Since penalties are low, speed enjoys a higher priority. A working person, he argues, will ordinarily prefer a suspended sentence and a $50 fine to the loss of a day's work. Feeley argues further that the lower criminal court actually performs the social role that such reformative institutions as neighborhood justice centers and community courts are intended to perform. Moreover, he avers that increased formalism might well harshen the criminal process for a great many defendants. At presentlargenumbersof defendantsfail to appearin court, and manycould be consideredpoor risks for pretrialrelease. Taking this problemmore seriously could mean imposingharsherconditionsfor pretrialreleaseand increasing pretrial numbersof cases would detention.Stricterformalismcould mean that substantial requireprolongedcourt time to clarify facts, mount proofs, and counterwith derate in court and fenses. While these changesmight result in a higherappearance vindicationof the innocent in some cases, and could conceivablylead to higher standardsof police conduct, they could also lead to a tendencyto invest a great that few people currently give to them, a many cases with a degreeof seriousness tendencywhichwouldbe resistedfiercelyby all involved.In the lowercourtsa great are ritualistic terminations of problemsthat for all practical purmanyappearances poses were resolvedwith the arrestitself, an act which defused a potentiallyexideal not withstanding, thereare intensefeelings plosivesituation.The adjudicative to maintainthis view. (Pp. 292-93.) Feeley's strong argument on behalf of the informality of lower criminal courts contributes importantly to a long-standing debate in American criminal justice between those who wish to insure propriety by limiting the discretion of officials and those who would be more willing to rely on the discretionary judgment of those same officials. My own feeling is that Feeley may have observed just that part of the system where discretion is most acceptable. Police discretion is even more pronounced than lower criminal court discretion. But police discretion is unobserved, while the lower criminal court embodies elementary checks and balances. At least in court defendants are represented by counsel. Even if they vary in competence and solicitude for the defendant's interests, presumably they provide some representation. Judges-even harried and hurried judges-are also present, observing all the actors in the system. Finally, and most important for Feeley's argument, defendants by and large do not have very much at stake-they can be hurt at least as much by increasing the process costs as by the outcome. When, however, we move into levels of court that deal with more serious charges, where the punishment involves imprisonment as well as process, the adjudicative ideal surely must be taken more seriously. Moreover, the informality, the lawless discretion we find in the lower criminal courts, undermines the integrity of the legal process. These courts are, after all, legal authorities deriving their legitimacy through the lawful imposition of sanctions. Feeley's analysis persuades us of the practicability of informal processing, but he does little to convince us of its integrity. In any event, Feeley's provocative analysis makes an important contribution to the debate on the role and limits of discretion in American criminal justice. It deserves to be read by all those who are interested in the outcome of the debate.

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