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

Notes

NOTES Introduction I. For a thoughtful discussion of this problem in an entirely different but nevertheless relevant context, see A. O. Hirschman, "The Search for Paradigms as a Hindrance to Understanding," chapter 16 in his book A Bias for Hope (New Haven: Yale University Press, 1971), pp. 342-361. 2. I am deeply indebted to the writings of a large number of people, and list here only a few of those whose works have been especially useful to me: Abraham Blumberg, Criminal Justice (Chicago: Quadrangle, 1967); George Cole, "The Decision to Prosecute," Law and Society Review 4 (1970): 331-333; Martin Levin, Urban Politics and the Criminal Courts (Chicago: University of Chicago Press, 1977); James Q. Wilson, Varieties of Police Behavior (Cambridge: Harvard University Press, 1968); James Eisenstein and Herbert Jacob, Felony Justice: An Organizatiollal A Ilalysis of Criminal Courts (Boston: Little Brown, 1977); Herbert Packer, The Limits of the Crimillal Sanction (Palo Alto: Stanford University Press, 1968); Robert Merton, Social Theory and Social Structure (Glencoe, III.: Free Press, 1957); Robert Dahl, Who Governs? (New Haven: Yale University Press, 1961); and Peter Blau, Exchallge and Power in Social Life (New York: John Wiley, 1964). 3. For an interesting examination of this issue with respect to the police , see the introduction in David Bayley (ed.), Police alld Society (Beverly Hills: Sage Publications, Inc., 1977). For implications for courts, see Martin Levin, Urball Politics and the Crimillal Courts. 4. The foremost student of this is, of course, Max Weber. See his The Theory of Social and Ecollomic Orgallizatioll, A. M. Henderson and T. Parsons (trans.), T. Parsons (ed.), (New York: Free Press, 1947). 5. John Hogarth, Sentencing as a Human Process (Toronto: University of Toronto Press, 1971); Willard Gaylin, Partial Justice (New York: Vintage Books, 1975); Martin Levin, Urban Politics alld tire Crimillal Courts; William K. Muir, Police: Street Comer Politicialls (Chicago: University of Chicago Press, 1977); Philip Selznick, Law, Society alld Industrial Justice (New York: Russell Sage Foundation, 1969); and Lon Fuller, "What Problems Can Be Solved by Some Form of Adjudication?" Wiscollsill Law Rel·iew (1963): 1-30. 6. For examinations of these types of costs in other jurisdictions and other types of cases, see Ronald Goldfarb, Rallsom: A Critique of tire Americall Bail System (New York: John Wiley, 1965); Herbert Jacob and James Eisenstein, "Sentences and Other Sanctions in the Criminal 299 NOTES Courts of Baltimore, Chicago, and Detroit," Political Science Quarterly 90 (1975): 617-626; and Jonathan Casper, American Criminal Justice: The Defendal/t's Perspective (Englewood Cliffs, N.J.: Prentice-Hall. 1972). For a theoretical treatment of this problem by an economist. see William Landes, "An Economic Analysis of the Courts," JouTllal of Law and Economics 14 (1971): 61-107. 7. Robert Dahl, Who GOl'ems? and Raymond Wolfinger, The Politics of Progress (Englewood Cliffs. N.J.: Prentice Hall, 1974). 8. Wolfinger, The Politics of Progress, p. 29. 9. Anthony Platt and Randi Pollock, "Channeling Lawyers: The Careers of Public Defenders," Issues in Criminolog), 9 (1974): 1-3 I. Chapter 1 I. Roscoe Pound, Criminal Justice in America (New York: De Capo Press, 1975; first published 1924). 2. Pound, Criminal Justice ill America, pp. 1740. 3. Pound, Criminal Justice ill America, pp. 19Q-19I. 4· 407 U.S. 25 (1972). 5. Excerpts from a letter from John Hersey to members of The Forum, August I I, 1972, quoted with the kind permission of John Hersey. The courtroom described is no longer in use. The lower court has since moved to a newer building, but the scene still resembles the one depicted here. 6. For an examination of the "heavy caseload hypothesis," see chapter eight. 7. See chapter eight. 8. For arguments that suggest that bargaining has long been a standard practice in the criminal process, see Milton Heumann, "A Note on Plea Bargaining and Case Pressure," in Law and Society Review 9 (1975): 515-528; and Jay Wishingraed, "The Plea Bargain in Historical Perspective," BuOalo Law Review 23 (1974): 499-527. 9. There are several studies which have sought to characterize courts as self-serving bureaucratic organizations. In particular, see Abraham Blumberg, Crimillal Justice (Chicago: Quadrangle, 1967). 10. Blumberg, Crimillal Justice, pp. 39-72, 169-188. I I. For an interesting discussion of criminal courts by an organization theorist, see Lawrence Mohr, "Organizations, Decisions and Courts," Law and Society Review 10 (1978): 621. 12. For such an argument, see Austin Sarat, "Research on the Nature and Function of Trial Courts" (Conference on Social Science Research on the...