Process is the Punishment, The

Process is the Punishment, The: Handling Cases in a Lower Criminal Court

MALCOLM M. FEELEY
Copyright Date: 1992
Published by: Russell Sage Foundation
Pages: 364
https://www.jstor.org/stable/10.7758/9781610442015
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  • Book Info
    Process is the Punishment, The
    Book Description:

    First published in 1979, this classic work set the standard for later court studies. Focusing on the workings of the New Haven court system, Feeley explores fundamental questions about how justice is administered in our society and reexamines conventional theories about how the criminal justice system functions. Examining the process and the players, Feeley's analysis, firmly rooted in organizational theory and open systems theory, describes the dynamics of the courthouse and emphasizes interdependencies, adaptation, institutional maintenance, and adversarial relationships in an effort to make sense of the process as it is experienced by those who participate in it. "This book's findings are well worth the attention of the serious criminal justice student, and the analyses reveal a thoughtful, probing, and provocative intelligence....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." —Jerome H. Skolnick, American Bar Foundation Research Journal

    eISBN: 978-1-61044-201-5
    Subjects: Sociology, Political Science, Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-x)
  3. ACKNOWLEDGMENTS
    (pp. xi-xiv)
  4. FOREWORD
    (pp. xv-xx)
    Joseph R. Gusfield

    The paperback edition ofThe Process Is the Punishmentis a welcome sign that legal realism is neither dead nor sick. Malcolm Feeley’s 1979 study has already taken its place as one of the major studies of how laws are administered in the United States. The intensive scrutiny of legal doctrine that law school culture perpetuates has been recognized as a distorted map of how legal institutions operate or even should operate. In their daily lives, human beings act within contexts that are both immediate and remote. Doctrine is remote—written, interpreted, and misinterpreted far from the complex realities of...

  5. PREFACE
    (pp. xxi-xxvi)
    Malcolm M. Feeley
  6. INTRODUCTION
    (pp. xxvii-2)

    Next to the police, the lower criminal courts play the most important role in forming citizen impressions of the American system of criminal justice. Even excluding traffic offenses, each year several millions of people are drawn into contact with these courts as defendants, complainants, or witnesses. Moreover, an appearance in court may have reverberations that affect a person’s spouse, family, friends, and employer.

    In systems operating with a two-tiered criminal court system, roughly divided by misdemeanor and felony jurisdiction, about 90 to 95 percent of all cases are handled in these lower courts. Armed robbery, rape, and homicide are rare...

  7. CHAPTER 1 The Lower Courts: Process and Punishment
    (pp. 3-34)

    Lower criminal courts are a world apart. They bear little resemblance either to the popular image of trial courts or to actual practices of higher trial courts which handle far fewer cases. In the lower courts trials are rare events, and even protracted plea bargaining is an exception. Jammed every morning with a new mass of arrestees who have been picked up the night before, lower courts rapidly process what the police consider “routine” problems—barroom brawls, neighborhood squabbles, domestic disputes, welfare cheating, shoplifting, drug possession, and prostitution—not “real” crimes. These courts are chaotic and confusing; officials communicate in...

  8. CHAPTER 2 Setting and Context
    (pp. 35-61)

    This chapter examines the Court of Common Pleas in the context of the community. It describes the city, the nature of the court’s business, the court’s relationship with the police department, and its formal structure. The chapter continues with an examination of the informal organization of the court, describing the recruitment process for court officials and the importance of the courts for local political organizations. This discussion is only introduced in broad terms here. The next two chapters treat in detail each of the offices and roles of the court’s principal decision makers.

    New Haven is the third largest city...

  9. CHAPTER 3 Judges, Prosecutors, and Defense Attorneys
    (pp. 62-93)

    Although they are not always the central figures in the eyes of the criminally accused, the judge, the prosecutor, and the defense attorney are by far the most visible and potentially most important actors in the criminal process. The judge makes the formal determination of guilt or innocence, rules on motions, and sets sentence; the prosecutor adds, drops, or reduces charges, presses vigorously for conviction, or makes the decision to nolle; and the defense attorney can invoke rights, pursue options, and raise defenses his client has never thought about. How these officials perform their functions is determined in large part...

  10. CHAPTER 4 Supportive Figures
    (pp. 94-122)

    The court is a large and diffuse institution with a high degree of specialization and division of labor. Whenever a person is arrested, a dozen or so people besides the judge, prosecutor, and defense attorney are likely to shape the proceedings and affect the outcome. While the due process and plea bargain models focus on these three figures, the Pretrial Process Model emphasizes the decisions of a host of other, less visible people: bail commissioners, bondsmen, counselors, screeners, clerks, stenographers, sheriffs, investigators, and secretaries. These people decide on pretrial release, supply information to prosecutors, judges, and defense attorneys, and often...

  11. CHAPTER 5 Outcomes: Adjudication and Sentencing
    (pp. 123-153)

    This chapter reports on my efforts to account for outcomes at adjudication and sentencing in terms of three sets of factors: legal considerations; social characteristics of principal decision makers; and structural characteristics of the system itself. A great many social scientists have focused on one or another of these sets; my initial goal was to integrate them into a single model and then examine the relative importance of each one. Figure 5.1 depicts this task.

    But during this effort my research strategy changed, and what I once envisioned as the core of a full-length study has now been reduced to...

  12. CHAPTER 6 The Process of Adjudication and Sentencing
    (pp. 154-198)

    At 10 A.M. each day the bailiff calls the main courtroom into session. In one five-second breath his voice above the continuing din announces:

    Oyez, Oyez, Oyez! ThishonorableCourtofCommonPleasfortheSixthGeographicalAreaatNewHavenisnowopenandinsessioninthisplace/Allpersonshavin’causeofactionpendin’orhavin’beendulysummonedareboundtoappearhereinandtakeduenoticethereofandgivetheirattentionaccordin’tolaw/TheHonorableJudgeMancinipresidin’/Kindlybeseated/Notalkin’orwalkin’whilehisHonor’sonthebench.

    This manner of speech and delivery capture well the court’s preoccupation with speed and efficiency. With the arrival of the judge the court goes into formal session, but the intense sideline activity continues. Defense attorneys hold whispered conferences with their clients and prosecutors, badger the clerk for a preferred position on the day’s calendar, or dart about trying to locate clients whose faces they can barely recognize. After they finish this business,...

  13. CHAPTER 7 The Process Is the Punishment
    (pp. 199-243)

    The last two chapters examined sentencing and adjudication, two stages of the criminal process which are featured in most research on criminal courts. This chapter returns to a third concern which I characterized as the pretrial process model in chapter one. It develops the argument that in the lower criminal courts the process itself is the primary punishment. In this chapter I identify the costs involved in the pretrial process, and examine the ways they affect organization, as well as the way a defendant will proceed on his journeys through the court. This examination should help explain why lower courts...

  14. CHAPTER 8 The Myth of Heavy Caseloads: An Exploration and Rejection of an Alternative Explanation
    (pp. 244-277)

    Chapters five and six portrayed a process that bears little resemblance to the popular image of the American criminal courts. Rather than hard-fought trials ending with harsh sentences for the guilty and vindication of the innocent, there are hardly any trials at all. Instead, there is a variety of informal dispositional practices, lenient sentences, and a general spirit of cooperation among supposedly adversarial agents. Moreover, the evidence shows that these practices have parallels in a great many other criminal courts.¹ In the preceding chapter I focused on the importance of the pretrial costs, arguing that often the process itself is...

  15. CHAPTER 9 The Criminal Process and the Adjudicative Ideal
    (pp. 278-298)

    In the opening chapter I argued that courts are not what they appear to be. They are not organizations structured to pursue clear-cut goals; they are aggregates of people pursuing different and often antagonistic interests who at best have established atentative equilibrium with each other. Court officials do not necessarily share a common sense of justice embodied in or derived from fidelity to formal law; instead they have different senses of justice which often emphasize substance over procedure. The system of sanctioning in the lower courts is not lodged exclusively or even primarily in the formal institutions of adjudication and...

  16. Notes
    (pp. 299-322)
  17. Index
    (pp. 323-330)