The Process is the Punishment PDF

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Taught by Nicole Gonzalez Van Cleve...

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The Process is the Punishment Tuesday, December 3, 2019 9:22 AM

12/3 - 12/5 Reading 1. Jennifer Earl’s “The Process is the Punishment: 30 years later.” 1. The Background and Context (Malcolm Feely) 1. TPP describes taxing process that lower criminal courts toward adjudication 2. Historically, time where Supreme Court extending protections to defendants right to counsel and right to trial by one's peers - large numbers of defendants were: 1. Without attorneys 2. None chose to have a jury trial (n=1600) 3. Empirical puzzle: despite expansion of rights, why a meager exercise of those rights? 2. Key Themes in TPP 1. "Open System" approach to courts 2. Substantive rather than procedural justice 3. The "process is the punishment" 3. Lower Courts 1. No jury trials, only 1/3 who faced jail time had counsel 1. When counsel was retained, they facilitated guilty pleas (like what Blumberg wrote) 2. Bail set by police, not by meaningful independent review 1. Twice as many defendants detained prior to adjudication as would ultimately be sentenced to jail 1. Defendants charged with things so low in value that they don't deserve jail time, but they're still detained 3. Defendant waited weeks or months for only "moments"… play "bit parts" not starring role in their own case 4. Sentencing unrelated to seriousness of charge, prior record, or other expected predictors 5. Simple cases taking 8 to 10 appearances while complex cases avoid lengthy engagements through plea bargaining 6. Lower court officials acting more like social workers than lawyers Malcolm Feeley argues that substantive justice is possible even through procedural justice seems absent Feeley's main argument: Substantive justice, or case outcome, is possible even when procedural justice seems absent ● You can have fair outcomes, even when Black defendants aren't afforded any of the

procedural mechanisms 1. Plea Bargaining Model (goes well with Issacstein and Jacob in courtroom workgroup) 1. Substantive justice is offered through cooperative efforts of prosecutor and defense, instead of through due process model of justice through fair procedure and fact finding 2. Theme: procedural protections are only one idea of justice and one route toward substantive justice 1. Open System Model 1. Open system: environmental influences shape court and impact courthouse workgroup 1. Balance between individual and collective interest, constraints, and goals of sponsoring organization, and influence of environment 1. Pretrial Punishment Model 1. The "title track" to his book: "The Process is the Punishment" 1. The process is inconvenient and disruptive. You may be in jail, lose your job, be unable to actively participate in defense 2. Causing several shifts: 1. From punishment after adjudication to pretrial punishment 1. Consequences of pretrial punishment: 1. Loss of job 2. Loss of family responsibilities, welfare 3. Immigration consequences 4. Stigma 5. Abuse and trauma 6. Eviction 2. Punishment should happen after you are found guilty, but what actually happens is that you are punished before, during, and after you are found guilty 2. From judges sanctioning to police/prosecutors being responsible for meting out sanction 1. Supreme court says death is different so the threshold to prove is so high (the evidence has to be beyond a reasonable doubt) 2. Pretrial punishment model says that in practice, police were actually killing people prior to even seeing the prosecutor (Ex. Eric Garner gets strangled by police officer by "selling cigarettes")… that killing is almost a metaphor for the system. 3. Bondmen and defense attorneys participating in sanctioning (not advocacy) by affect how long someone is detained and how long the

process will proceed 1. To maintain your innocence, you must sit in a jail to prove your innocence. In having a defense attorney that fights for client to have a trial, they will have to sit in a jail until their innocence is proven 1. What Feeley argues 2. Ethical limits: disagreeing with a client 1. Private attorney: client had no felony background 3. Diversion in Pretrial Model 1. In theory: 1. Have power to help reduce formal punishment by diverting offenders away from guilty pleas/findings 1. Comes before you ever see the criminal justice program 2. Diversion is contingent on factors like staying clean, staying out of trouble… sounds a lot like probation because they put you under more surveillance, which extends pretrial punishment 2. In practice: 1. Actually increases overall punishment level by increasing pretrial control 2. Defendants face less extensive/shorter sentences (even the minimum sentence) if just plead guilty 1. Key Criticisms of TPP 1. Generalizability 1. Case of Philadelphia… sentences are harsher and therefore, outweigh "process punishments", lawyers do not consider or advise on pretrial costs 1. If the sentences are so harsh, it increases incentive to go to trial 1. If punishments are low, you don't fight… if they are high, more incentive to fight… if they are super high, they are less likely to fight because gambling with defendant's life 2. Defendants' Voices 1. The process is the punishment refers to defendants but we do not hear their account 2. Tension between the negative light in which they are portrayed 3. TPP: Defendants through the Eyes of Professionals… or Researchers? 1. Morally loaded descriptions of defendants. 1. "lacking self-esteem motivation", hailing from a "subculture that spurns conventional values" 2. Blaming the defendant for the quality of their defense 1. An attorney is likely to be able to do more for a motivated

client than he is for some on whose sensibilities have been dulled by alcohol, drugs, and a lifetime of failure 2. Pleading guilty is a moral failure… and it assumes that no one in the stream of cases can be innocent 2. In contrast, professionals are "ethnographically" well-crafted and portrayed 1. Subsequent works have celebrated Feeley for making interviewees real "partners" in producing a new understanding of the law 2. Defendants hardly seen as partners 1. Substantive vs. Procedural Justice 1. Substantive justice is separate and achievable even when procedural protections are not in full use 1. Officials do not abandon this concern with justice, but rather they create a sense of justice which is compatible with their concern for speed and efficiency 1. Is speed and efficiency "just" for defendants? 2. Perhaps procedural protections matter on collective rather than individual basis through "case-worth". Ex. Even defendants with no attorney benefit from defendant attorneys "being there" in the system, if not at their side 2. Substantive justice is concerned with the outcomes, procedural justice is concerned with how just the procedure is and the enactment of the rights (did you exercise those rights) 1. There has to be procedure in place so that everyone is treated the same. So that there isn't extralegal considerations that lead to disparities in outcome...