Taking the Punishment out of the Process: From Substantive Criminal Justice through Procedural Justice to Restorative Justice

By Blackwell, Brenda Sims; Cunningham, Clark D. | Law and Contemporary Problems, Autumn 2004 | Go to article overview

Taking the Punishment out of the Process: From Substantive Criminal Justice through Procedural Justice to Restorative Justice


Blackwell, Brenda Sims, Cunningham, Clark D., Law and Contemporary Problems


INTRODUCTION

A. "When Justice is a Crime" (1)

On October 10, 2003, the daily legal newspaper for metropolitan Atlanta carried a front page story about twenty-four people arrested in September for alleged traffic violations. They had spent anywhere from three to twelve days in jail without seeing a lawyer or receiving anything more than a perfunctory court appearance (in a jailhouse courtroom) where they were informed of the charges, bond amount and court date. (2) Many were charged with minor violations that would normally result in only a fine; indeed, nine were pedestrians, not motorists, charged with such offenses as "Pedestrian Obstructing Traffic" (3) or "Pedestrian in Road" (4) (jaywalking) and "Pedestrian Soliciting a Ride" (5) (hitchhiking). (6) The newspaper reported that both the Chief Judge of Atlanta's Traffic Court and the chief prosecutor "agreed that none of the inmates should've been held for more than forty-eight hours without a probable cause hearing" (7) and that both "were aware of the problems." (8) Their explanation was that "[t]he city doesn't have procedures for probable cause hearings ... because it's so expensive to have the police officers, a public defender and the solicitor at the jail to hold those hearings, especially in cases involving minor traffic violations." (9)

Not only was the systematic failure of the Atlanta Traffic Court to conduct probable cause hearings illegal, (10) it is clear that these persons, jailed for minor traffic violations, received punishment far in excess of what they should have received even if they were found guilty as charged. For them, to borrow from Malcolm M. Feeley's trenchant book title, the process was the punishment. (11)

B. "The Process is the Punishment!"

The Process is the Punishment, Feeley's award-winning study (12) of the handling of cases in a lower criminal court, first published in 1979, was based on his close observation of the Court of Common Pleas in New Haven, Connecticut. Feeley began with the perspective offered by Roscoe Pound in 1924, who identified such courts, which ultimately affect the largest mass of people, as generating suspicion of the legal system. Pound, as quoted by Feeley, attributed such suspicion as unsurprising given "the confusion, the want of decorum, the undignified offhand disposition of cases at high speed, [and] the frequent suggestion of something working behind the scenes, [that] ... characterize the petty criminal court in almost all of our cities." (13)

Feeley found that Pound's description of urban criminal courts was still accurate in New Haven fifty years later. (14) Indeed, Feeley noted in 1992, in the book's second edition, that while the Court of Common Pleas was replaced by a "lower division" of a unified trial court, the underlying processes and attitudes remained the same. (15)

Feeley's key insight, captured by the book's title, was that the experience of being arrested, incarcerated, and processed through pre-trial court procedures is the primary form of punishment administered by the lower criminal courts, rendering the ultimate adjudication and sentencing essentially irrelevant. As Feeley described, becoming engaged in the system itself generates a cost to these defendants not only directly, but indirectly as well.

   For every defendant sentenced to a jail term of any length,
   there are likely to be several others who were released
   from jail only after and because they pleaded guilty.
   For each dollar paid out in fines, a defendant is likely
   to have spent four or five dollars for a bondsman and an
   attorney. For each dollar they lose in fines, working
   defendants likely lose several more from docked wages.
   For every defendant who has lost his job because of
   a conviction, there are probably five more who have lost
   their jobs as a result of simply having missed work in
   order to appear in court. … 

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Taking the Punishment out of the Process: From Substantive Criminal Justice through Procedural Justice to Restorative Justice
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.