process is the punishment

8/12/2019 Process is the Punishment

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merican Bar Foundation

The Process Is the Punishment: Handling Cases in a Lower Criminal Court by Malcolm M.FeeleyReview by: Jerome H. SkolnickAmerican Bar Foundation Research Journal, Vol. 6, No. 1 (Winter, 1981), pp. 283-286

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Book ReviewsMALCOLMM. FEELEY, The Process Is the Punishment: Handling Cases ina Lower Criminal Court. New York: Russell Sage Foundation, 1979.Pp. xxii + 330.

Reviewed by JEROME . SKOLNICKThisbook confrontsus witha perplexingmoralandpublic policydilemma orthe Americancriminal usticesystem.That dilemma:The more our lowercrimi-nal courtsachievewhatFeeley abels the adjudicativedeal -the idealsof dueprocessfor individualsaccused of minorcrime-the more we raisethe transac-tion costs of offering justice. Paradoxically,the costs of justice, even whendefenseattorneysareprovidedfor the indigent,are bornelargelyby the accused

in the lower criminalcourts. If that is true, and Feeley presentsconsiderableevidence to show that it is, then the process, he concludes, is the punish-ment-hence the title of this book. Thus, the more processour adjudicativeidealsoffer in the nameof preventingundeservedpunishment, he morepunish-mentwe actually mpose. That fundamentalcontradiction, hat paradox,is themajor concern and conclusionof this book and, its author argues,the majorproblemof America's ower criminalcourts.Feeley'sstudyis of the lowercourt in New Haven, Connecticut, he Court ofCommonPleas. The court has sentencing urisdictiononly over minor feloniesand misdemeanors.That feature of the studiedcourt is important o all of theoutcomes n Feeley'sstudybecause,giventhe probabilities f minorpenalties nthe lowercourts, the costs of avoidingthese are likelyto outweighthe serious-ness of the penaltiesthemselves.But that mightnot be true for courts involvedwith adjudicatingmore seriousaccusationsof crime.Feeleydefends,withsomepersuasiveness, is researchon a New Havencourtas being fairly representative f lower criminalcourts in urban America. Hearguesthat the right questionis not whetherNew Havenshouldbe regardedastypical: Thecorrect est, he writes, is not to show thatNew Havenis typicalof all Americancitiesor typicalof middle-sized ities, but rather o show that itis not so atypicalas to be unique (p. xx; emphasis n original).Actually, thecommunityof New Havenis atypical.But I suspectthat the structural eaturesand dynamicsof New Haven's lower criminalcourt are fairly widespreadn

Jerome H. Skolnick is Professor of Law at the University of California, Berkeley.? 1981AmericanBarFoundation 283

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284 AMERICAN ARFOUNDATIONRESEARCHOURNAL 1981:283

America. New Haven itself is a peculiar city. It is not middle-sized but rathersmall, with a population of 138,000. In size it is a lot closer to Berkeley than toOakland, Detroit, or Atlanta, and would be no more than a neighborhood inNew York or Chicago. Moreover, the presence of Yale University (the city'slargest employer) affects who lives in New Haven. But the traditionally hostilerelationship between town and gown means that Yale (and particularly its LawSchool) has never had a particularly strong impact on the operations of thelower criminal court of this smallish community.But even if we agree that New Haven's Court of Common Pleas is sufficientlytypical of the operations of America's urban criminal courts, we still might bene-fit from being told more about Feeley's evidence for his conclusions on thisscore. He says (on p. 9) that he surveyed over 1,600 criminal cases and ob-served the court over a period of several months, which seems to me rather ashort time for a participant-observation study deserving of a book-length report.Apparently, Feeley started with one research strategy and later switched toanother:

As I immersedmyself n theoperationsof the court,firstto collectdataand lateras a participant-observer,cameto appreciatehe waysin whichorganization ndattitudeaffected the handlingof cases, factors which are not easily captured nquantitative nalysesand which aremost visibleduringrather han beforethe re-searchprocess.I also beganto question he value of quantitative nalysis n devel-opingexplanatory nalysesof criminal ourts,particularlyower criminal ourts nwhichofficialrecordsarenotoriouslyunreliable ndimportantoutcomesareoftendistinguished y subtledifferencesnot easilycapturedon a close-endeddata collec-tion form. (Pp. 123-24.)From my own experiences investigating American criminal justice, I fullyagree. But I also think that the author then undertakes an obligation to tell usmore about his qualitative methods. What does he mean when he says that heobserved over a period of several months. Does he mean that he was at thecourthouse 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 thesestructured or unstructured? When they were unstructured, were they in the of-fice of a court functionary or was he asking questions of the functionary as heobserved the functionary's work? One could go on to ask other questions: Werethe several months consecutive months? Or were they spread out throughout theyear so as to account somewhat for seasonal variations? In what year or yearswere the months? Were there seasonal variations? If there were, what were thesubtle factors affected by these?If there is a weakness in this study, I think it lies in the author's switch fromrelying principally on quantitative analysis to relying principally on qualitative

analysis. Some of the qualitative analysis is first rate but not as rich and texturedas it might have been had the author planned for a participant-observationstudy. Nevertheless, the book's findings are well worth the attention of theserious 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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No. 1 BOOKREVIEWS 285

with outcomes based more upon the qualities of the relationships among thelegal actors than upon strictly legal factors. These actors include the judges, theattorneys, and the bail bondsmen (who play a more important role analyticallyor normatively than most people would accord to them). Feeley's writings aboutthe bondsmen offer the best descriptive material in the book and whetted my ap-petite for more. The bondsmen turned out to be the lubricants of a creaky sys-tem. But for the two bondsmen, writes Feeley, the rapid-paced processes in thecourtroom might have ground to a halt, an unpleasant thought for court offi-cials 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 thewhereabouts of other attorneys and defendants, which they knew because theywere constantly moving about the courthouse during the day (p. 107). Also,bondsmen do all sorts of other favors for people. They take court personnel outto lunch. They throw parties for prosecutors and for court staffs. They pick upthe tab at bars for defense attorneys and policemen.What Feeley describes is a phenomenon that we are by now pretty familiarwith, namely, that the more we delve into the depths of the criminal justice sys-tem, the more informal, discretionary, and personal is the justice system. YetFeeley concludes that, on balance, the system works rather well or at least betterthan any alternatives that could be imposed, even though he recognizes the limit-less, virtually lawless discretion involved in the lower court adjudicative process.What others might interpret as scandal, Feeley interprets as an inevitable, posi-tive, functional response to a difficult and paradoxical structural situation.In the main, functional analysis tends to affirm the status quo. Feeley's func-tional analysis is no exception. Thus, Feeley concludes that discretion is prefer-able 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 theclient. He thinks that the ideals of due process are laudable but that their prac-tice is terribly time consuming and costly. He argues against Lon Fuller's notionof the distinction between the morality of mediation and the morality of adjudi-cation. Fuller suggested that slipping from one system to another and back againundermines the integrity of the adjudicative process. But Feeley concludes thatFuller is wrong, at least for these courts. Here, he argues, the official partici-pants can assume alternative roles without harming the interests of the defend-ants. He writes:

A judgewho applies ormal,preciserulescanturn aroundandcajolethecomplain-ant anddefendant nto reconcilingheirdifferences,or givepaternalisticdvice o adefendant. . . . By shiftingroles withinthe sameforum,no role canmaintain e-gitimacy,and the moralityof the entireprocess s undermined. ronically, he im-pulseto do justicecontributes o the feeling hatjustice s not beingdone. Suchten-sions are inevitable n any complexsystemof law, but theyareparticularly romi-nent in the lowercriminal ourtswhere he stakesareusually ow and the desireforswift justiceis high. (Pp. 289-90.)The adjudicative ideal, Feeley argues, is concerned with determining whetheran accused person is guilty or innocent. By contrast, in the lower criminal courtsmost defendants don't care whether they are guilty or innocent. They care about



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286 AMERICAN ARFOUNDATIONRESEARCHOURNAL 1981:283

two things: speed of process and penalty. Since penalties are low, speed enjoys ahigher priority. A working person, he argues, will ordinarily prefer a suspendedsentence and a $50 fine to the loss of a day's work.Feeley argues further that the lower criminal court actually performs the socialrole that such reformative institutions as neighborhood justice centers and com-munity courts are intended to perform. Moreover, he avers that increased for-malism might well harshen the criminal process for a great many defendants.

At present argenumbersof defendants ail to appear n court,and manycouldbe consideredpoor risksfor pretrialrelease.Takingthis problemmore seriouslycould meanimposingharsher onditions or pretrial eleaseand increasingpretrialdetention. Stricter ormalismcould mean that substantialnumbersof cases wouldrequireprolongedcourt time to clarifyfacts, mountproofs, and counterwithde-fenses.Whilethesechangesmightresultin a higherappearance atein courtandvindicationof the innocentin some cases, and could conceivably ead to higherstandardsof police conduct,they could also lead to a tendencyto investa greatmanycaseswith a degreeof seriousnesshat few peoplecurrently ive to them, atendencywhichwouldbe resisted iercelybyall involved.Inthelowercourtsa greatmanyappearances reritualisticerminations f problemshatfor allpracticalpur-poses were resolvedwith the arrest tself, an act which defuseda potentiallyex-plosivesituation.Theadjudicativedealnot withstanding,hereare intense eelingsto maintain his view. (Pp. 292-93.)Feeley's strong argument on behalf of the informality of lower criminal courtscontributes importantly to a long-standing debate in American criminal justicebetween those who wish to insure propriety by limiting the discretion of officialsand those who would be more willing to rely on the discretionary judgment ofthose same officials.

My own feeling is that Feeley may have observed just that part of the systemwhere discretion is most acceptable. Police discretion is even more pronouncedthan lower criminal court discretion. But police discretion is unobserved, whilethe lower criminal court embodies elementary checks and balances. At least incourt defendants are represented by counsel. Even if they vary in competenceand solicitude for the defendant's interests, presumably they provide some repre-sentation. Judges-even harried and hurried judges-are also present, observingall the actors in the system.Finally, and most important for Feeley's argument, defendants by and largedo not have very much at stake-they can be hurt at least as much by increasingthe process costs as by the outcome. When, however, we move into levels ofcourt that deal with more serious charges, where the punishment involves impris-onment as well as process, the adjudicative ideal surely must be taken more seri-ously. Moreover, the informality, the lawless discretion we find in the lowercriminal courts, undermines the integrity of the legal process. These courts are,after all, legal authorities deriving their legitimacy through the lawful impositionof sanctions. Feeley's analysis persuades us of the practicability of informalprocessing, but he does little to convince us of its integrity.In any event, Feeley's provocative analysis makes an important contributionto the debate on the role and limits of discretion in American criminal justice. Itdeserves to be read by all those who are interested in the outcome of the debate.


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