Book Review: The Process is the Punishment: Handling Cases in a Lower Criminal Court
| Author | Roman Tomasic |
| Published date | 01 September 1980 |
| Date | 01 September 1980 |
| DOI | http://doi.org/10.1177/000486588001300306 |
| Subject Matter | Book Review |
AUST &NZ JOURNAL OF CRIMINOLOGY (September 1980) 13 (215-224) 215
BOOK REVIEWS
The
Process is
the
Punishment:
Handling
Cases
in a
Lower
Criminal
Court.
Malcolm M
Feeley,
Russell Sage
Foundation,
New
York, $US12.95.
Since Abraham
Blumberg's
influential 1967
study
of
the
workings
of
the
lower
criminal courts,
there
has
been
a
need
for
further
studies which would
both
extend
and
perhaps
even
challenge Blumberg's
perceptive,
yet
too often taken for
granted,
insights. In
recent
years, a
number
of studies have
appeared
which
have
basically
adopted
Blumberg's
perceptions
and
applied
theln
to different
court
settings.
These
include
studies such as
those
of Pat Carlen (1976), Baldwin &McConville (1977)
and
David
Neubauer
(1974).
The
recent
appearance of a second edition of
Blumberg's
study
gives
the
impression
that
his has
become
the
orthodox
and
accepted
interpretation
of
the
workings of lower criminal courts. However, it is by no means
clear
that
the
picture
is as simple as Blum
berg
originally suggested.
In view of this, it is
noteworthy
that
an
attempt
has recently
been
made
by
Malcolm
Feeley
to challenge
and
perhaps
refine many of Blumberg's
important
insights, as well as to critically examine many
C0l1l1110nly
held
assumptions-and
explanations
concerning
the
"crisis" in
the
criminal courts. Although
Feeley
does not
make
many
references to Blumberg, it is clear
that
this
New
Haven
based
study
seeks to question many of
the
key assumptions
and
conclusions
made
by
Blumberg,
For
this reason,
Feeley's
study
is particularly
important
and
deserves
our
critical
scrutiny. This is
made
all
the
more pressing in view of
the
high
theoretical
and
methodological standards
set
by Feeley.
Because it is such an
important
study, it
needs
to be closely examined,
Feeley
provides
us with a
masterly
example of
the
potential
that
sociological
studies
of
the
courts
have for casting light on some of
the
wider
aspects of
the
administration of
justice
in society. At
the
same time, he also highlights
the
need
for methodological
flexibility if
the
full complexity of social relationships in
the
legal system is to
be
understood.
This
studv
well illustrates how studies of
the
courts can evolve in
the
face of obvious methodological
and
heuristic obstacles.
Feeley
sees his
central
concern as
being
the
manner
in which
the
criminal
sanction is
administered,
He
examines
the
manner
in which lower
courts
are
structured
to allow
"the
rise of substantive justice".
One
of his key observations is
that
processing costs in
the
lower courts
"turn
the
principles of criminal
justice
on
their
head"
(p XIX).
Feeley
observes
that
whilst each of
the
conventional
explanations of this
are
true
to some extent,
they
fail to.give us a
complete
account of
what
shapes judicial decision-making.
Some
of
the
explanations
that
he examines
include:
the
press of
heavy
caseloads,
the
rise of a criminal justice bureaucracy,
plea
bargaining
and
the
lack of suitably qualified
court
personnel.
Feeley
illustrates
the
shortcomings of each of
these
explanations
and
in doing so he turns to
three
further
explanations of judicial decision-rnaking in
the
lower criminal courts.
These
are
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