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Tuesday, February 12, 2013

Individualization En Masse: Pre-Sentence Reports in the Lower Level Court

A central critique of lower-level courts, made recently by among others John King and Alexandra Natapoff, is that the heavy volume of cases leads to rote processing that undermines individualization: what  King describes as the "routine, mechanical, and perfunctory" processing of cases and what Natapoff calls the problem of aggregation

Today and tomorrow I'll discuss the work of Cyrus Tata, whose work understanding the operation of Scottish Sheriff courts provides some interesting nuance to the the problems of aggregation and (I'll suggest tomorrow) actuarialism in the criminal justice system.  Put differently, Tata's work raises issues that are relevant to both the mass adjudication and mass incarceration debates as the operate in low-level courts, and he (along with his collaborators, principally Neil Hutton and Fergus McNeill) provides an essential, bottom-up insight into how the criminal justice process operates on the ground through the relation between judge, attorney, and (the Scottish equivalent of) probation officer.  A selection of their work is available online here, here, and here.

Scottish Sheriffs hear a variety of criminal cases, including both felonies and misdemeanors.  Tata and his collaborators engaged in a four-year study of the preparation of the pre-sentence reports that the Sheriff relies on in imposing sentence after conviction: reports that are prepared by a criminal social worker, who is professionally trained in social work, but who specializes in working with criminals.  As such, these social workers (so Tata tells it) operate at the margins of both the criminal justice and social work professions, struggling to assert their professional identity and ensure that they are properly appreciated by criminal justice professionals and social workers alike.  

Tata and co.'s study looked at the manner in which criminal social workers prepared the pre-sentence reports, and how the social workers sought to influence the Sheriff's sentencing decisions.  They also examined the manner in which the Sheriff read the sentencing reports, and the use that the offenders' attorneys made of the reports in interacting with judge and client.  A remarkable feature of the study is that it included drafting control or objective reports to uncover the nuances of the social workers' attempt to appeal to the judges; and focus groups of judges to gauge their response to the reports.  

Three features of the study are worth drawing out for purposes of thinking about mass adjudication.  The first is that the judges tended to skim the "personal history" section of the report, despite the fact that the Scottish Legislature had specifically required a detailed discussion of personal history as a means of moderating sentencing.  Judges jumped pretty quickly to the "criminal history" section of the report and mostly based their sentencing decisions upon that part of the report.

The second is that judges (and attorneys) nonetheless demanded a detailed personal history section, one that did not advocate on behalf of the defendant (and so did not usurp the professional role of both the judge-as-decision-maker and attorney-as-advocate), but nonetheless presented a relatively full picture of the defendant as an individual: his schooling, family circumstances, and so on.

The third is that attorneys often kept past pre-sentence reports on file, enabling them to gain more easily the trust of their clients by representing that they (or one of their colleagues) "remembered" them.  Again, the idea is that the attorney can treat the offender as "individualized," by asking about children or success with addiction treatments and so on.  

One of Tata's conclusions was that the pre-sentence report contributed to the speed (and so volume) of the plea process: the central worry raised by John King.  Here, Tata indicates, the personal details contained on the pre-sentence report operate primarily to inoculate diligent, due-process oriented judges to worries of aggregation and mass adjudication.  Someone—the criminal social worker—has individualized the offender sufficiently for the judge to pass to the criminal history portion.  

Furthermore, the pre-sentence report allows the attorney to effectively pressure the offender into an earlier plea: the client trusts that his counsel knows him and his case well enough to asses, based upon the detail demonstrated by the attorney in the interaction; and the pre-sentence report provides sufficient detail for the attorney to lay out the consequences of going to trial versus taking the plea.

Tata's other work, on the perverse effects of funding trial attorneys in Scotland, along with his ethnographic work confirming the perverse effects hypothesis, adds a lot of flavor to his study of the use of pre-sentence reports.  It's a truly fascinating study of how the courthouse workgroup interacts.  It provides the sort of insight into the operation of these relationships that it is difficult to get from just one perspective: that of the judge, or the attorney, or of the social worker.  And that is particularly so given, as I'll suggest tomorrow, that these different agents often misunderstand the motivations and goals of the other, reading them through their own lens.

Although this is sociology, criminology, and ethnology at its finest, it also gives us a detailed insight into the practice of Scottish Sheriff courts, one that I hazard could not be provided by judges, or attorneys (or probation officers) alone.  And it tells us about something that is vital to practice: the relationships between the various court actors and the offenders that pass through the court.  It's useful for self-reflective judges, and for attorneys who want to make (better or different) use of the pre-sentence report.  For example, it may be that by treating the reports as less a full recitation of the offenders history, but using it to draw out some of the features of the offender's personal history hidden (because of the vagaries of criminal social work reporting) in the report, the advocate could better direct the judge to important mitigating factors contained in the personal history section, and the offender may stand a better chance of a reduced sentence.

This, however, would require attorneys and judges to re-individualize the process of sentencing; precisely what they depend upon the social-worker to do outside the sentencing process by preparing the report.  So the paradox of practice is biting.  

I'll hazard the unsupported thought that relations between the social-worker, advocates, and judges are important and conflicting even when formalized into a treatment team, as in problem-solving court.  There is a wealth of literature on treatment teams in that context: it is precisely the question of holistic legal practice in the context of criminal justice.  I'll hazard the further unsupported thought (though backed up by the anecdotes of personal observation) that often lurking under the veneer of teamwork are a series of conflicting goals and professional self-understandings and misunderstandings.  As I'll suggest tomorrow, Tata and co.s work (like Feeley's) can help illuminate some of the ways in which these conflicts play out and are resolved.  All of which are vital for legal practice in the margins of law.

Posted by Eric Miller on February 12, 2013 at 01:13 PM | Permalink


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