The Process is the Punishment: Handling Cases in a Lower Criminal Court

7. The Process Is the Punishment

CHAPTER 7 The Process Is the Punishment Introduction 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. It develops the argument that in the lower criminal courts the process itself is the primary punishment. In this chapte ( I identify the costs involved in the pretrial process, and examine the ways they affect organization, as well as the way a defendant will proceed on his journeys through the court. This examination should help explain why lower courts do not fit their popular image, and why cases are processed so quickly in the Court of Common Pleas. The first set of factors I examine deals with the consequences of pretrial detention and the problems of securing pretrial release . The second explores the costs of securing an attorney. There are obvious financial outlays involved in retaining a private attorney, but there are also hidden costs associated with 199 THE PROCESS IS THE PUNISHMENT obtaining free counsel. A third set of factors deals with the problem of continuances. While delay often benefits the defendant , its importance for the defendant is often exaggerated, and it is crucial to distinguish defendant-induced delay from continuances which are arranged for the convenience of the court. By themselves these costs may appear to be minor or even trivial in a process formally structured to focus on the crucial questions of adjudication and sentencing. However, in the aggregate , and in comparison with the actual consequences of adjudication and sentencing, they often loom large in the eyes of the criminally accused, and emerge as central concerns in getting through the criminal justice system. These pretrial costs account for a number of puzzling phenomena : why so many people waive their right to free appointed counsel; why so many people do not show up for court at all; and why people choose the available adversarial options so infrequently. Furthermore, pretrial costs are part of the reason why pretrial diversion programs designed to benefit defendants and provide alternatives to standard adjudication do not receive a more enthusiastic response. The accused often perceive these programs as cumbersome processes which simply increase their contact with the system. The relative importance of the pretrial process hinges on one important set of considerations. Students of the criminal courts often overlook what many criminologists and students of social class do not, that the fear of arrest and conviction does not loom as large in the eyes of many people brought into court as it does in the eyes of middle-class researchers. While I did not systematically interview a sample of defendants, I had informal and often extended discussions with dozens of defendants who were waiting for their cases to be called, and I watched stilI more discuss their cases with attorneys and prosecutors. While there were obvious and numerous exceptions, I was nevertheless struck by the frequent lack of concern about the stigma of conviction and by the more practical and far more immediate 200 THE PROCESS IS THE PUNISHMENT concerns about what the sentence would be and how quickly they could get out of court. There are several reasons for this. First, many arrestees already have criminal records, so that whatever stigma does attach to a conviction is already eroded, if not destroyed.1 Second , many arrestees, particularly young ones, are part of a subculture which spurns conventional values and for which arrest and conviction may even function as a celebratory ritual, reinforcing their own values and identity. In fact, they may even perceive it as part of the process of coming of age.2 Third, lower-class people tend to be more present-oriented than middle-class people, and for obvious reasons.3 Many defendants are faced with an immediate concern for returning to work or their children, and these concerns often take precedence over the desire to avoid the remote consequences that a (or another) conviction might bring. This relative lack of concern about conviction is reinforced by the type of employment opportunities available to lower-class defendants. If an employee is reliable, it may make little difference whether or not he pleads guilty to a minor charge emerging from a "Saturday night escapade." Indeed, an employer is not likely to find out about the incident unless his employee has...