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Tuesday, February 05, 2013

What Mainstream Criminal Procedure Overlooks (and Why)

In the words of a friend of mine, who worked for years at a very prominent public interest law firm in the South, "everyone is overlooking everything."  By this, I mean that the adjudication portion of the criminal procedure syllabus for the most part leaves students with no idea what goes in the sorts of low-level criminal courts so nicely described by Amy Bach in her book "Ordinary Injustice," which might be thought of as a journalistic follow-up to Malcolm Feeley's pathbreaking work, "The Punishment is the Process." 

I'm going to hazard the thesis that the reason we have no idea what goes on in the courts that process the bulk of our criminal cases is an "elite" focus on doctrine.  First, these courts are largely invisible to "doctrine."  They do not produce many opinions, their other operations are hard to access from the comfort of a law-school office or library, and so there is a paucity of materials readily at hand produced by the courts. Because of our reliance on "well reasoned opinions" (or at least pedagogically-useful-badly-reasoned ones), the gold standard for teaching criminal procedure is either the elite federal court system, or the differently elite state appellate court system, which do produce opinions that are readily accessible from a computer or library. 

Second, state trial and (especially) municipal courts are often bereft of "doctrine."  There is little doctrine in municipal court, where lawyering depends upon interpersonal interactions between members of the court "workgroup" (as the sociologists put it).  In these courts, appeals to doctrine may actually be counterproductive: a nuclear option utilized only when workgroup relationships break down or do not yet exist. 

Third, in order to access the operation of these low-level courts we depend upon either anecdotal data or social science data.  The first is unreliable but emphasizes "practice-based knowledge" of the sort that is currently popular; the latter is much more reliable and useful, but emphasizes a discipline that is generally held in disregard by law faculties in the United States (but not, intriguingly, in Europe or the British Commonwealth countries). 

Fourth and finally, (as Alexandra Natapoff compellingly argues) we tend to prioritize felonies over misdemeanors, on some scale of seriousness, despite the fact that for many individuals the impact of a misdemeanor may be as severe as some felonies.  Accordingly, we have little or no knowledge about what happens to the 13 million people who cycle through the misdemeanor system and who are afforded a rough and ready sort of justice. 

While I don't think this is the whole story, I think it is a start.  [I do think that another part of the story is who is writing the scholarship: primarily scholars employed in clinical programs, low-level judges, and criminologists and sociologists working through the data.  My sense—though anecdotal—is that there is a little bit of snobbery about the producers of this scholarship, though I’d be happy to be wrong about that.  I’ll discuss this part of politics of scholarly production and recognition in a subsequent post.]

Problem-solving courts afford one window into this type of court, albeit a specialized version of the system.  What they reveal is a system of justice that is marginal, political, and administrative, dominated by the judge as much as the prosecutor, and in which the Sixth Amendment notion of rights to counsel and adversarial testing are largely absent.  Furthermore, the ideal of an administrative system of justice based on legal-rational decision-making largely absent: the decisions are made through a mixture of conflict and collaboration that is often actively non-bureaucratic (as Feeley first argued). 

Over the next few days I’ll engage a little with some of the great scholarship out there that has yet to make its way into the traditional course.  But one central point worth making is that the focus on low-level criminal courts, given the nature of the process (non-doctrinal) and the sort of issues raised is—if it is to be descriptively accurate and normatively productive—must be both inter-disciplinary and practice-oriented.  The sort of interdisciplinarity I have in mind looks at how practice happens on the ground, and how political institutions, like courts, operate.  One nice example of the latter is Lisa Miller’s book, The Perils of Federalism, which looks at crime, politics, and criminal justice at the community level in Philadelphia.

It ought to be the sort of thing that the various theories of punishment—sociological, criminological and philosophical—attend to.  Often, however, these are top-down theories, primarily concerned with the policies (actuarialism, control, risk) and officials (legislators, perhaps prosecutors, appellate judges) that are perceived as having wide political influence over the criminal justice system: but certainly not low-level judges.  What I am proposing, then, is a bottom-up look at the criminal justice system for the sorts of institutional resistances to legislation that (as criminologist Pat O’Malley argues) are often invisible from the top down perspective of governance.   Problem-solving courts offer a neat example of this sort of institution.  

Posted by Eric Miller on February 5, 2013 at 10:22 AM in Criminal Law, Legal Theory | Permalink


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Not really on point to this interesting series of posts, but are you suggesting that U.S. legal academia is *less* interested in social science than europe? That is very much not my experience, at least in tax & private-law fields, where the europeans are thorough doctrinalists & the americans are all becoming econometricians. Is criminal procedure different over there?

Posted by: BDG | Feb 5, 2013 12:38:45 PM

BDG: really good question. I don't mean to imply that Europe is better than the US on the interdisciplinary front. I'm sure they simply have different interdisciplinary emphases. From a criminal law/criminal procedure perspective, there appears to be a much closer connection between law and social science in the UK at least, as Edinburgh (my alma mater), Oxford (where I just spent a sabbatical), Strathclyde University, and so on all closely link law and sociology of law/criminology. It may be that there is much less of an overlap on the commercial side of things; and it may be that the trend on the European continent is to much greater separation than in the UK.

Posted by: Eric J. Miller | Feb 5, 2013 1:03:04 PM

Thanks, Eric. I should note that I over-generalized; the dutch & italians are perhaps more interested in the social science of private law than we are, but the english & germans seem utterly disinterested.

Posted by: BDG | Feb 5, 2013 6:44:27 PM

Calling problem-solving courts a "system of justice that is marginal, political, and administrative, dominated by the judge as much as the prosecutor, and in which the Sixth Amendment notion of rights to counsel and adversarial testing are largely absent" boggles the mind. The National Drug Court Institute and National Assn. of Drug Court Professionals materials and training all emphasize Constitutional rights including due process and the right to counsel, the role of counsel including the defense and the necessity for procedural justice. Assuming P-S courts are "low level" does not include the best practice of targeting high risk/high need offenders in post-conviction felony cases. There are few "low level" diversion courts still operating as drug courts are too intense an intervention for those eligible for diversion.

Posted by: Judge Peggy Hora (Ret.) | Feb 10, 2013 10:42:20 AM

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