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

Foreword

FOREWORD 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. The intensive scrutiny of legal doctrine that law school culture perpetuates has been recognized as a distorted map of how legal institutions operate or even should operate. In their daily lives, human beings act within contexts that are both immediate and remote. Doctrine is remote-written, interpreted , and misinterpreted far from the complex realities of organizations, the pressures of community challenges and supports , and the infinite capacities and infirmities of plaintiffs, defendants, prosecutors, attorneys, and judges. In the study of law, the law and society movement has been an effort to view law as something wider and deeper than the legal doctrine enunciated in case and statute. In 1935, Thurman Arnold, that great demystifier of legal reasoning, pointed to the contradiction between legal doctrine and the realities of everyday life in legal institutions. "The principles of law," he wrote, "are supposed to control society, because such an assumption is necessary to the logic of the dream. Yet the observer should constantly keep in mind that the function of law is not to guide society but to comfort it." (The Symbols o/Government, p. 34.) Much research since then has substantiated Arnold's insight into the symbolic functions oflegal doctrine and the realities of the daily behavior of courts, lawyers, police, and citizens. xv FOREWORD As Arnold also realized, it is not the higher reaches of the legal system-the appellate courts-through which most citizens come in contact with the legal institution. It is the lower courts that constitute the only site that almost all supplicants or defendants come to know. Nor is the trial the common event in the citizen's experience with legal disputes or enforcement . The Process Is the Punishment documents the paucity oftrials in the routine flow ofcriminal cases. It is in the process of arraignment that most of the work of the court gets done. Here the case is dismissed, guilt is pleaded, fines are imposed. Here the citizen incurs the costs of loss of pay, of inconvenience , of auto impoundment charges, of attorney's fees. He or she suffers the indignities of dispute and defense and the other travails oforganizational involvement. Whatever the outcome of the case, the experience is at best one worth avoiding. Studies of the lower courts, before and since the original publication of Feeley's book, have given us a more realistic sense of what citizens experience in contact with legal institutions . In the same vein, the studies of police have made us aware of the negotiation and discretion that is involved in the origination or rejection of criminal cases. We come to recognize more clearly the limited role of legal doctrine in the processes of law enforcement and law usage. So too, studies of business practices and of insurance negotiation with claimants have underscored the vast extent to which civil cases reaching courts are a tiny tip of the iceberg of disputes. Even of those civil cases that do get court attention, few continue to the trial phase. To twist an old adage, law is too important a subject to be left to lawyers. The United States is said to be a highly litigious society, yet most disputes are never settled by courts or even contemplate the legal institution as a place for resolution. Most crimes are not even reported to police. What Marc Galanter has called "indigenous law" is a large part of our daily lives. The study of legal institutions must also be concerned with xvi FOREWORD who, how, and when police and courts are brought to bear in the lives of citizens. The Process Is the Punishment is a convincing and striking description of how law operates in the context of what sociologists call "situated action." By this term they refer to the complex character of the immediate situation as distinct from the abstractions, which generalization and rules contemplate. The specific act of the defendant, his or her character and background, the organizational constraints and historical patterns of the court, and the nature of the lawyers all contribute to actions and outcomes deeply responsive to local contexts. Legal doctrine is general, abstract, and takes little recognition of...