The Process Is the Punishment: A 30-Year Retrospective

Prior to the 1960s and 1970s, most research on procedural justice in the criminal justice system focused on the Supreme Court. This is still the case, to some extent, in law review articles, which focus on watershed Supreme Court decisions to the exclusion of the courts that handle the bulk of everyday criminal cases. In the late 1960s, this trend started to change. Several classic studies on lower courts, focusing on plea bargaining, charging decisions, and public defense work, were published, challenging traditional notions of what a day in the courtroom "should" look like, and bringing to the forefront commonplace processes and events that the constitutional discourse kept hidden. Some of these included Milton Hewmann's groundbreaking study of plea bargaining, an underwhelmingly discussed phenomenon in light of its prevalence; David Sudnow's anatomy of plea bargaining based on stereotypization of cases according to their conformity to ideal types of "normal crimes", and Eisenstein and Jacob's analysis of felony case disposition. A major contribution to this literature was the classic award-winner The Process Is the Punishment: Handling Cases in a Lower Criminal Court, by my teacher, mentor, and friend, Malcolm Feeley.

In the book, Feeley provides an anatomy of the Court of Common Pleas in New Haven, Connecticut, analyzing its workings and processes from an organizational perspective. He comes to a (then) startling conclusion: The vast majority of defendants plead guilty. Virtually everyone foregoes his or her right to a jury trial. Judges, prosecutors, and defense attorneys, are jaded and overworked. Defense attorneys find themselves engaging in social work, rather than legal work. And, most important, the system generates powerful organizational incentives that push defendants to plead guilty, just so that they can avoid the process itself. Despite the fact that most defendants were not sent to jail, but rather had to pay fines, the process was so byzantine, unfathomable, and unpleasant, that most defendants did everything they could to avoid it. The concern about criminal stigma stemming from conviction was not as significant an incentive to insist on a jury trial; most defendants (disproportionally black and poor back in the 1970s as well) already had criminal records, and it was the daunting court process that they aimed to avoid.

Feeley's findings were not meant to be entirely generalizable to other lower court settings. In fact, one of his main points was that justice could differ from one microcosm to another, and that each county had its own procedural personality, affected by the relationship between the court, the prosecution, and the defense, local politics, and the perception of heavy caseloads. Nevertheless, the main argument highlighted an important piece of the plea puzzle: a lower criminal court is more of a Middle Eastern bazaar than a sterile supermarket with prices neatly marked by every offense.

What has changed in the thirty years since the publication of Feeley's classic? A great deal - and not a lot. The picture in terms of plea bargaining has not changed. The vast majority of defendants in lower courts still plead guilty. As the Department of Justice reports, 97 percent of all felony convictions within a year were obtained through a guilty plea (there are no misdemeanor cases on file). California statistics are difficult to obtain; databases are siloed in a way that makes it tricky to generalize, but some preliminary (albeit dated) numbers are available from the CA Attorney General's office, suggesting similar trends.

Since 1979, incentives for plea bargaining have grown. The rise of determinate sentencing and of punitive sentencing schemes such as the Three Strikes Law has shifted the bulk of discretion from judges and parole boards to the hands of legislators and prosecutors, putting more bargaining chips on the criminal justice table. Rather than bargaining the sentence, the parties routinely bargain the charge, as well as a plethora of other provisions, such as whether the offense will be "counted" as a strike. We know (from Jeanne Woodford's talk at the conference, and from John Pfaff's study) that the majority of prison inmates are in prison for a very short time; it is not the length of sentence, but rather the volume of incomers, that is overcrowding California prisons and jails. Many of these are the product of plea bargaining in order to avoid much longer sentences.

This leads us to one significant change from 1979: sentences have gone up. In that sense, these days, the punishment is also punishment. It is not just process avoidance that leads defendants to plead guilty, though it may play a part in their decisionmaking process. The existing of more chips on the table, underscored by the war on drugs and by growing concerns about sex offenders, provides the prosecution with unprecedented power to enhance a sentence in multiple ways, and while these are not always used, they certainly impact the negotiation process in important ways.

Another important development is the fact that some processes are less punitive than they used to be. Problem-solving courts, community courts, and other specialized institutions have sprung and changed the landscape of criminal justice. Also, therapeutic justice is back, albeit for a small portion of cases concerning drugs and mental health. While there may be coercive and problematic elements in these specialized processes as well, the experience is to a large extent more benign than in the chaos of an ordinary criminal court.

There are important indications that, since the late 1970s, public defense has become more prevalent, and its quality has improved in many jurisdictions. These encouraging developments may be dampened by the distubring scarcity of resources for public defense, which we highlighted elsewhere.

The atmosphere of nepotism and political dealings within the court, which Feeley carefully examines in the book, may also have changed. Perhaps, as argued in Benjamin Smith's interesting post at the Center for Court Innovation blog, Changing the Court, lower courts have become less parochial in their internal bureaucracies. However, it seems to me that the impact of politics on the process has become more pronounced at the higher, policymaking level. The mechanism that many conference speakers (particularly Mark Leno and Jonathan Simon), according to which politicians cannot afford to be "soft on crime", is hugely influential precisely because of the rising effect that legislative discretion has on the bargaining process.

Finally, we should keep in mind that observing lower courts is a change catalyst in itself. Much of the changes occurring in bargaining and sentencing policies has been affected by increased public attention to the courts' inner workings. In that sense, the "starship Enterprise" of courtroom observers can never really follow the "Prime Directive": paying more attention to hidden phenomena, and bringing them to light through high-quality research, is an important enterprise in generating change. Newer generations of scholars, which have been raised on Feeley's work, are indebted to the groundbreaking work of the 1970s, which is still a model of classic meticulous ethnography, and which is a continuing inspiration for courtroom research.