The Process is the Punishment

"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 to be '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 a verbal shorthand wholly unintelligble to accused and accuser alike, and they seem to make arbitrary decision, sending one person to jail and freeing the next." Read more...

I came across this book in the resource library at the Center for Court Innovation. You can view more excerpts here. Published in 1979, Malcolm Feeley's study consists of intensive observation, interviews and statistical research at the New Haven Court of Common Pleas that examine how the law is applied in practice and how a lower criminal court functions as an organization. Though much has changed since the book was published, the general form of the modern, centralized lower court had emerged by the time of Feeley's study, including the major Supreme Court decisions of the fifties and sixties, the formalization of procedure, expansion and strengthening of the rights of the accused, the professionalization of court personnel, and the universal practice of court appointed public defenders.

One noticeable difference is the racial make-up of the court, then and now. As Feeley says, "defendants in these courts, particularly in urban areas, are predominantly Black, while court officials are predominantly white." While Feeley was writing in a post-civil rights era, it would take another generation before blacks and Hispanics rose into positions of power in the legal field. Today in the Bronx, the leaders in the court system - the chief administrative judge for the Criminal Division and the Bronx County District Attorney - are African-American. Blacks, Hispanics (and many women) make up a majority of the judges we deal with and dominate the ranks of court officers, police officers, and court clerks, while defense attorneys and prosecutors are racially diverse as well.

Another major feature of Feeley's court that seems less prominent now is the role of political patronage and machine politics in the appointment of jobs such as court clerk and judge. This article appearing in the New York Times a few months ago hinted at political nepotism, political corruption scandals involving the Brooklyn judiciary have been extensively covered, and the conventional wisdom is that certain elected seats are still considered patronage prizes. Nonetheless, as I observe and participate in the day-to-day business of the court these factors don't seem as apparent in the Bronx today as they did to Feeley in New Haven, though perhaps someone with his background conducting a study of the type he did would still see this as a major factor today.

Finally, police enforcement practices have gone through substantial changes since Feeley conducted his study. The explosion of crack cocaine, the war on drugs, and the attendant enforcement practices - especially sweeps and trespassing enforcement - followed by the quality of life movement of the nineties, have somewhat altered the make-up of the arrestee population and and their charges while prison populations and rates of incarceration have undergone dramatic increases in New York City and the rest of the country.

Nonetheless, despite being an historical account, most of the book's countless observations and case studies of the different actors in the court process and its clear-eyed analysis of adjudications and outcomes in a high volume, low stakes court process ring as true in the Bronx in 2007 as they did in New Haven nearly three decades ago. Most of all, it is a striking portrayal of how those working in the courts, when charged with applying the law within a cultural, social, and ethical context, strive for some kind of substantive or "rough" justice and an informal kind of problem-solving justice by viewing the context of the whole person and striving to "do the right thing." It's a useful handbook for anyone trying to make sense of the chaotic and sometimes bewildering environment of a busy urban courthouse, which can so often seem mysterious and opaque to outsiders and the public.

It's also a reminder of the importance of lower courts, not just for the adjudication they provide, but for the experience of the law they create for citizens. While major cases will occupy the greatest amount of attention in the media and the public mind, more opinions will be shaped by small daily interactions with police officers and personal experiences with a minor criminal case. As Feeley recounts earlier descriptions made a half century before his writing and draws comparisons with his own observations, of "the bad physical surroundings, the confusion, the want of decorum, the undignified offhand disposition of cases at high speed, the frequent suggestion of something working behind the scenes, which characterize the petty criminal court in nearly all our cities," that could still be true today, it is clearly apparent how the court process itself can potentially have a terribly negative impact on public perceptions of the law, government, and authority, especially among those already disposed to believe that society's institutions do not function in their interest.

Update, 03/06/2009: Also, see what Greg has to say, here, about Process is the Punishment, as well as another book by Feeley, Court Reform on Trial, which Greg says is the best book he's read on reforming criminal court.