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

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

CHAPTER 8 The Myth of Heavy Caseloads: An Exploration and Rejection of an Alternative Explanation Introduction: The Caseload Hypotheses 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. Instead, there is a variety of informal dispositional practices, lenient sentences, and a general spirit of cooperation among supposedly adversarial agents. Moreover, the evidence shows that these practices have parallels in a great many other criminal courts.! In the preceding chapter I focused on the importance of the pretrial costs, arguing that often the process itself is the primary punishment, and that it leads arrestees and the court to ignore the opportunities available under formal adversarial proceedings. This is not the conventional explanation for perfunctory 244 THE MYTH OF HEAVY CASELOADS processing of criminal cases. The pervasive and seemingly persuasive explanation places responsibility for these practices on the impact of heavy caseloads. Responding to some of my preliminary findings, one prosecutor in New Haven summarized this position as follows: Your findings on the way cases are handled in lower courts confirm our beliefs. The burgeoning crime rate of the past few years has put an impossible strain on the courts, and in reaction a number of devices have grown up which allow courts to cope with this staggering workload. Among them are the decline in the use of trials, reliance on plea bargaining, and the adoption of a cooperative-as opposed to combative-strategy between counsel. Other court officials echoed this theory, and the argument has come to represent the orthodox explanation for the shortcomings of criminal courts in generaP Both the most vociferous critics of the "twilight of the adversary process" and the many, although usually reluctant, defenders agree that the assemblyline processing of defendants is in large part a consequence of the sy~tem's inability to manage its heavy workload.3 It ,is surprising that this cause-and-effect argument has not itsel~,'been the object of careful scrutiny.4 Observers have noted growing calendars in the nation's larger cities, along with understaffing , poor facilities, and mechanical justice, all of which provide a sharp contrast to the standard idealized version of the adversary process which pervades law school training, legal ideals, and popular notions of justice. The causal connection between heavy case10ads and perfunctory processing appears obvious. This chapter subjects this orthodox explanation to closer scrutiny. It breaks down the argument into its separate components , each of which needs careful examination, and then subjects each to an attempt at "disproof." It examines the consequences of varying caseloads by comparing low- with highvolume courts, explores the logic of the argument and the assumptions implicit in it, and considers the relationship between 245 THE PROCESS IS THE PUNISHMENT caseload and the court's operating procedures and decisionmaking processes. The major claims of the heavy caseload-cursory disposition argument may be separated and stated as follows: • The lack of adversarial practices in lower criminal courts is a result of the heavy volume of business before the courts, a workload that allows virtually no one-defense attorneys, prosecutors, or judges-adequate time to prepare fully for cases. The adversarial relationship is compromised because no one has time to engage in it. The clearest indication of this is the lack of trials in the lower criminal courts. • The pressure caused by heavy caseloads affects not only the rate of trials, but also the quality of the proceedings at all other stages of the process. Other forms of short-circuiting the process include the reluctance to file formal motions, the defense waiver of other pretrial rights, and the casual yet rapid treatment of defendants before the bench. • Pressure for ways to circumvent the complication of an elaborate adversarial process goes still farther and leads to the adoption of "work crimes," shortcuts designed to save time and effort. These devices are usually implemented at the expense of the defendant, ironically the only central person in the process who is not a regular participant in the ongoing and interdependent system. This shortcut is most often and most visibly institutionalized in the form of plea bargaining, the exchange of a plea of guilty for a consideration of leniency by the prosecutor. This practice is constitutional but dubious, since it may...