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The Ordering of Justice

The Ordering of Justice: A Study of Accused Persons as Dependants in the Criminal Process

Richard V. Ericson
Patricia M. Baranek
Copyright Date: 1982
Pages: 268
  • Book Info
    The Ordering of Justice
    Book Description:

    The authors discuss prospects for changing the criminal process and conclude that the range of reforms that have been advocated, and sometimes implemented, does not lead to an alteration of the accused?s position within the ordering of justice because the system is not truly adversarial.

    eISBN: 978-1-4426-7811-8
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. ii-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Tables
    (pp. ix-x)
  4. Acknowledgments
    (pp. xi-xii)
    RVE and PB
  5. Foreword
    (pp. xiii-2)

    Critics of the functionalist approach to research in sociology usually consider its most serious defect to be its normative, and hence apologetic, character. Guided by their commitment as scientists to what they conceive to be ethical neutrality, and dealing only with empirical aspects of reality, many sociologists write as if it was their duty, as well as their pleasure, to allow the claims of established social institutions to set their working agenda, determining what an appropriate research problem might be. Having accepted such a problem, the sociologist then proceeds to define it as concerned with institutionalmeans,not with ends;...

  6. 1 The Ordering of Justice
    (pp. 3-40)

    The accused in the criminal process is caught up in an organizational machinery not of his own making. Furthermore, as a ‘one-shot’ or occasional actor in the process, rather than a full-time organizational member (Galanter, 1974), he is not in a position to make decisions about most aspects of what is happening to him. Instead, he is subject to the orders or commands of criminal control agents and to the order (systematic patterns of relationships) these agents reproduce in their routine work with the accused and their cases. The options open to the accused are defined by the structure of...

  7. 2 Police Orders
    (pp. 41-75)

    The police command a pivotal position in determining the outcome of criminal cases. They are backed up by a host of enabling rules which allow them to justify a range of alternative decisions about investigation, charging, and the construction of evidence. Several researchers have concluded that conviction and even sentencing outcomes for accused persons are fundamentally influenced by the police. This conclusion has been reached through interviews with accused persons (e.g. Casper, 1972; Klein, 1974; Bottoms and McClean, 1976), through observation of police practices (e.g. Skolnick, 1966; Medalie et al, 1968; Chevigny, 1969; Chatterton, 1976; Sanders, 1977; Helder, 1979; Ericson,...

  8. 3 Lawyers’ orders
    (pp. 76-110)

    One of the few relatively autonomous decisions available to the accused concerns the acquisition of a lawyer. The potential benefits of engaging a lawyer include his or her superior specialist and ‘recipe’ knowledge and his or her access to other criminal control agents to negotiate settlements. The potential costs include the obvious financial burden if a private lawyer is chosen and the loss of control over decision-making. As we show in this chapter, these and other factors enter into the decision about whether or not to have a lawyer. Among the accused we interviewed, three-quarters made the decision to engage...

  9. 4 Order out of Court I: The Process of Plea Transaction
    (pp. 111-151)

    Researchers and commentators on the criminal process stress the pivotal nature of the guilty plea decision, because it involves the simultaneous consideration of past, present, and future aspects of the case.¹ This decision is arrived at as part of a process which transpires outside the courtroom. There is an order out of court which ‘frames’ this decision so that it becomes a routine matter for organizational participants and routinely accepted by the accused. In what follows we consider the constitution of this order and its implications for the position of the accused within the criminal process.

    In Anglo-American legal systems...

  10. 5 Order out of Court II: The Position of the Accused and the Plea Decision
    (pp. 152-178)

    The accused is excluded from the process of plea transaction. Therefore, his perceptions of this process are at a distance from the phenomenon and must be based upon what his lawyer relates to him and the outcome produced in court.

    While accused persons who engaged lawyers did so because they thought it would bring some advantage, they rarely mentioned having the lawyer participate in out-of-court plea transactions as a reason for engaging the lawyer. Among the 75 interviewed accused who engaged a lawyer, only 9 said that they retained the lawyer for purposes of out-of-court plea transaction, and 5 of...

  11. 6 Order in Court
    (pp. 179-215)

    The order out of court–the bureaucratic pressures for expediency, the professional obligations which frame the process of plea transaction, and the formal rights and opportunities that the law gives to the crown and withholds from the accused (cf McBarnet, 1981)–prepares the accused to take up his dependent position in the courtroom. In the courtroom he experiences formality, rules of interaction, unavailability and inaccessiblity of information, and the various remedial routines used to produce order in court. In this chapter we describe and discuss the exclusion of the accused from active participation: his silence in court; his forced trust...

  12. 7 The Reordering of Justice
    (pp. 216-242)

    Accused people in the criminal process are dependent upon the actions of others in taking actions and producing outcomes. They are treated as objects with their wishes often being read as symptoms of their suspect character. They lack organized means of altering their dependent position, in the face of an organization of criminal control that is very large and powerful in its own right and backed up by all the power of the state with its legislative apparatus.

    As the agents of the state work on the accused’s case, they redefine it and transform it in terms of the criminal...

  13. Notes
    (pp. 243-252)
  14. Bibliography
    (pp. 253-262)
  15. Index
    (pp. 263-268)