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Process is the Punishment, The

Handling Cases in a Lower Criminal Court

Malcolm M. Feeley

Publication Year: 1979

First published in 1979, this classic work set the standard for later court studies. Focusing on the workings of the New Haven court system, Feeley explores fundamental questions about how justice is administered in our society and reexamines conventional theories about how the criminal justice system functions. Examining the process and the players, Feeley's analysis, firmly rooted in organizational theory and open systems theory, describes the dynamics of the courthouse and emphasizes interdependencies, adaptation, institutional maintenance, and adversarial relationships in an effort to make sense of the process as it is experienced by those who participate in it.   "This book's findings are well worth the attention of the serious criminal justice student, and the analyses reveal a thoughtful, probing, and provocative intelligence....an important contribution to the debate on the role and limits of discretion in American criminal justice. It deserves to be read by all those who are interested in the outcome of the debate." —Jerome H. Skolnick, American Bar Foundation Research Journal

Published by: Russell Sage Foundation

Title Page

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pp. vii-x

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pp. xi-xiv

I began this study during my stay as a Russell Sage Foundation Fellow in the Law and Behavioral Science Program at the Yale Law School and completed it while I was Research Fellow in the Daniel and Florence Guggenheim Foundation Program in Criminal Justice there. ...

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pp. xv-xx

The paperback edition of The Process Is the Punishment is a welcome sign that legal realism is neither dead nor sick. Malcolm Feeley's 1979 study has already taken its place as one of the major studies of how laws are administered in the United States. ...

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pp. xxi-xxvi

For this edition, issued eleven years after first publication, my initial impulse was to revise and update The Process Is the Punishment. Upon reflection, however, I feel that the book stands on its own. Emphasizing recent changes in the court might unwittingly undermine concern with the generic, ...

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pp. xxvii-xxxiv

Next to the police, the lower criminal courts play the most important role in forming citizen impressions of the American system of criminal justice. Even excluding traffic offenses, each year several millions of people are drawn into contact with these courts as defendants, complainants, or witnesses. ...

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1. The Lower Courts: Process and Punishment

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pp. 3-34

Lower criminal courts are a world apart. They bear little resemblance either to the popular image of trial courts or to actual practices of higher trial courts which handle far fewer cases. In the lower courts trials are rare events, and even protracted plea bargaining is an exception. ...

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2. Setting and Context

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pp. 35-61

This chapter examines the Court of Common Pleas in the context of the community. It describes the city, the nature of the court's business, the court's relationship with the police department, and its formal structure. The chapter continues with an examination of the informal organization of the court, ...

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3. Judges, Prosecutors, and Defense Attorneys

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pp. 62-93

Although they are not always the central figures in the eyes of the criminally accused, the judge, the prosecutor, and the defense attorney are by far the most visible and potentially most important actors in the criminal process. The judge makes the formal determination of guilt or innocence, rules on motions, ...

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4. Supportive Figures

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pp. 94-122

The court is a large and diffuse institution with a high degree of specialization and division of labor. Whenever a person is arrested, a dozen or so people besides the judge, prosecutor, and defense attorney are likely to shape the proceedings and affect the outcome. ...

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5. Outcomes: Adjudication and Sentencing

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pp. 123-153

This chapter reports on my efforts to account for outcomes at adjudication and sentencing in terms of three sets of factors: legal considerations; social characteristics of principal decision makers; and structural characteristics of the system itself. ...

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6. The Process of Adjudication and Sentencing

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pp. 154-198

This manner of speech and delivery capture well the court's preoccupation with speed and efficiency. With the arrival of the judge the court goes into formal session, but the intense sideline activity continues. Defense attorneys hold whispered conferences with their clients and prosecutors, ...

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7. The Process Is the Punishment

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pp. 199-243

The last two chapters examined sentencing and adjudication, two stages of the criminal process which are featured in most research on criminal courts. This chapter returns to a third concern which I characterized as the pretrial process model in chapter one. ...

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8. The Myth of Heavy Caseloads: An Exploration and Rejection of an Alternative Explanation

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pp. 244-277

Chapters five and six portrayed a process that bears little resemblance to the popular image of the American criminal courts. Rather than hard-fought trials ending with harsh sentences for the guilty and vindication of the innocent, there are hardly any trials at all. ...

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9. The Criminal Process and the Adjudicative Ideal

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pp. 278-298

In the opening chapter I argued that courts are not what they appear to be. They are not organizations structured to pursue clear-cut goals; they are aggregates of people pursuing different and often antagonistic interests who at best have established a tentative equilibrium with each other. ...


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pp. 299-322


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pp. 323-330

E-ISBN-13: 9781610442015
Print-ISBN-13: 9780871542533
Print-ISBN-10: 0871542536

Page Count: 352
Publication Year: 1979