COURT PROCESSES AND PERSONNEL

Courts – and in particular the higher courts – enjoy a privileged position within the social imagination. If we were to take the representations of law dramas as truth, we might assume that an aggressive and emotionally charged trial before a jury, complete with double dealings, slippery ethics and a shock confession, is central to the criminal justice process. In the world of TV drama, each defendant and their victim gets their time in court so that their actions and claims may be interrogated and decried or absolved. The focus of traditional jurisprudence also implies that courts are the most significant element of the Western, adversarial system, a forum in which justice is publicly enacted. Perhaps not so surprisingly, sociologists have consistently argued against either of these positions. This chapter addresses some of the key contemporary issues that attach to the role and functioning of the courts and their personnel. We overview the role of courts, the processes of judging and its outcomes, the declining importance of juries, alternative methods of dispute resolution, and the relationship between the media and the courts. By the time we have reviewed these issues we will have substantially undermined our faith in this pillar of criminal justice system.

• Strength of the prosecution case. Plea bargaining can be used when the prosecution believes that they will not obtain a conviction because their evidence is weak, but nonetheless believe that the offender is guilty (Adams, 1983).
  
• Substantive justice. Defence and prosecutors can argue the issues more fully and openly outside of the courtroom because they are unfettered by procedural rules (Mulcahy, 1994). This allows them to reach a fair and logical outcome. However, some argue the interests of the accused are not as important as the needs of long-term players in the system (for example, to free up time for more profitable work, or to reduce courts’ backlogs).
  
• Administrative pressures. Plea bargaining may reduce backlogs and contribute to a more efficient management of cases. There is some evidence to suggest that when plea bargaining is unavailable the number of contested cases rises (Church, 1976; Holmes et al., 1992; Padgett, 1990).
  
• Organizational relationships. People working in the criminal justice system know each other and over time create working understandings and relationships. They are concerned with the coordination of a number of interests, organizations, processes and outcomes. The interests of the accused may become a secondary focus to those of bureaucracy, politics and personal convenience.

• Magistrates can argue that they fulfil demands that they be ‘tough on crime’ through generating high conviction rates, and guilty pleas allow them to more easily manage their case load.
  
• Claims that courts are serving justice are substantiated because a guilty plea stands as a marker of contrition.
  
• The police prosecutors more easily manage their high case load, achieve a high conviction rate with little effort and uncertainty, and avoid opening possible illegal police procedure to scrutiny.
  
• The defence lawyers enjoy a high turnover of cases with little preparation time and a minimum of uncertainty.

Although rather old, an early Australian study on the processing of pleas in a magistrate’s court in the state of Victoria provides some startling data to support the above conclusions. Lippman (1979: 109) calculated that the average time spent in the determination of guilt was 23.6 seconds per case; 11.1 seconds per charge. Even contested pleas were dealt with shockingly quickly, with an average of a little over 5 minutes per case. These results suggest that the processes of the adversarial system are, to put it mildly, truncated. More time is spent on sentencing than on the determination of guilt (Douglas, 1980; Lippman, 1979; O’Malley, 1983).

It is easy to argue that plea bargaining and the encouragement of guilty pleas are necessary on the common-sense grounds that they begin to counter the problems of lengthy and expensive trials and court backlogs. But from a sociological perspective, this is not ‘common sense’ so much as an indication that the needs of the court and criminal justice system are defined by the rational and administrative requirements of bureaucratic justice. The judging and processing of defendants are simplified and routinized and in so doing, the uncertainties facing all parties (the length of the trial, the viability of the case, the expected outcomes) are reduced (Blumberg, 1969; O’Malley, 1983: 128). But the edifice of simplicity and efficiency is often built on the presumption that defendants are guilty, not innocent (Blumberg, 1969; O’Malley, 1983). This reverses the central tenet of Western liberal ideals.

The efficient processing of defendants is also linked to the role of the prosecutor. As we have already noted, crimes are committed against the state, even where people suffer the consequences of the criminal act or omission. The state cannot itself prosecute anyone; the prosecutor becomes its representative and in so doing, the representative of citizens. In practice, prosecutorial decision-making, like that of the police, is invisible, and is not usually subject to political or judicial review. Even in the presence of guidelines and policy, prosecutors enjoy a great deal of discretion. According to Davis (1998: 20), this discretion can be used in a random and arbitrary fashion. It can have as much impact on inequalities in the criminal justice system as the decisions of police, juries or judges. The role of the prosecutor includes determining which charges will be pursued in court, what outcomes will be requested, and as we have already noted, whether or not someone goes to trial in the first place.

Ideologically, the role of prosecutor demands that they ‘consider whether a conviction is “consistent with the public interest” in conjunction with their personal sense of the defendant’s culpability for the crime’ (Levenson, 1999: 559). However, this expectation holds within it a series of difficult questions:

• What is the public interest?
  
• Where does the accused fit within the ‘public’?
  
• Where does a sense of the defendant’s culpability come from?

Davis (1998: 51) notes that the public interest is served when trials are fair, a broader definition than a simple expectation that any one accused person is found guilty. This position acknowledges the discrepancies in the application of law, at all levels of the criminal justice system. Theoretically, the interests of the defendant, as a member of society, are important in the trial process. These interests can conflict with those of society, a difficult tension for the prosecutor to reconcile. Davis (ibid.: 52) points out that the prosecutor’s duties include both the enforcement of criminal laws and the equitable treatment of victims and offenders in the criminal justice system – a responsibility owed to individuals and to society as a whole. The difficulties emerge ‘not in the conceptualisation of these responsibilities but in their implementation’ (ibid). In light of what we know about race, class or gender disparities in the criminal justice system, the prosecution of an individual case may include interests at odds with the broader ideals of the justice system. Further, as we have already noted, efficiency in the processing of cases is increasingly valued, and has itself been claimed to be in the public interest.

The expectation of dispute resolution and the central tenets of justice are again called into question through elements of the trial process. The relatively small proportion of people who come before the courts face a new set of problems: they cannot simply and easily tell their story. Courtroom interactions are ordered by the logic of the Western adversarial system. This incorporates formal rules of evidence, informal norms of professional conduct, and expectations of how witnesses, defendants and experts should present themselves. John Conley and William O’Barr (1990: 9) sum up the conclusions of many social scientists when they comment, ‘Official legal discourse … is far removed from the language of ordinary people. It tends to transform or simply ignore the discourse of the disputants whose problems are the law’s very reason for being.’ In the following pages we consider language and communication, and how they reflect the dynamics of power in the courtroom. This has become an increasingly significant area of academic research.

Gregory Matoesian (1993, 1997) describes the ‘rhythms of domination’ in the William Kennedy Smith rape trial. This involved a claim that Kennedy Smith had sexually assaulted a woman after she willingly accompanied him to his home, a classic ‘date rape’ scenario. In this instance, Kennedy Smith was found to be not guilty. Through detailed analysis of the interactions between counsel and witnesses, Matoesian highlights the ways in which a charge of rape is pursued and defended through a series of discursive and interactional strategies rooted in dominant cultural understandings of sexual identity. He focuses on the way in which the defence strategies of cross-examination can be used to construct a series of ‘logical inconsistencies’ which are built upon assumptions about the ‘appropriate’ way for a woman to act towards men in whom she is/not sexually interested. He also presents the witnesses’ ultimately unsuccessful attempts to counter these. Matoesian (1997: 56) argues ‘legal realities such as inconsistency emerge not just from some logical, rational, or natural juxtaposition of contradictory issues of evidence but from an interaction between cultural ideologies and linguistic resources in the trial context’. As a result, a particular reality is created and patriarchy is reproduced. His perspective fits within more general feminist concerns over the construction of rape victims, as well as the gendering of the legal subject (see pp. 62–72).

• hedges (sort of, like);
  
• intensifiers and empty adjectives (very, really);
  
• hesitations (umm, err);
  
• direct quotations (‘He said …’).

O’Barr (1982: 70) concludes that rather than specifically feminine speech forms, these patterns are characteristic of social powerlessness more generally. This may have material consequences for the outcome of a case. In an experiment, O’Barr found that mock jurors described those who spoke in a more powerful style as more believable, more convincing and more trustworthy (results that held for both male and female witnesses).

Conducting proceedings in English creates further difficulties for witnesses and defendants from a non-English-speaking background. This is exacerbated by the absence of any right to an interpreter. In the US, the lack of an interpreter has been argued to be a breach of the sixth Amendment guarantee of a right to face one’s accuser (O’Barr, 1982: 41); more generally it may conflict with the right to a fair trial. In Australia, for example, an interpreter is provided at the discretion of the judge. Michael Cooke (1995: 105) has pointed out that deciding if an interpreter is necessary can be more difficult than it first seems. A person may be able to answer direct and simple questions, but not necessarily follow the colloquialism, nuances, ‘legalese’ or rapid speech of the court proceedings. Cooke discusses a case involving an Australian Aboriginal witness. The presiding judge decided he did not need a translator on the basis of a series of questions to which the most grammatically complex answer was ‘I work for council plumbing’. Further, interpreters are only provided for the time an individual takes the stand. As a result, a defendant may experience almost the whole of his or her trial without actually understanding it, or getting only the ‘gist’ of what is being said. The limits indicate that the role of an interpreter is often first and foremost that of meeting the court’s interests, and not those of the witness – translation is used so that court personnel can extract the information they need, not so that the witness or defendant is cognisant of the complexities and outcomes of interactions.

On a similar theme, O’Barr (1982: 40–1) lists a series of assumptions that are made about the comprehension and language skills of English speakers in the courtroom. These include expectations such as:

Presumptions about language in the courts have very real consequences. Consider the comments of an indigenous Australian man:

As soon as Aboriginal people enter the courtroom, they feel different, they become afraid. I have seen old men (i.e. men who have power and stature in Aboriginal society) shaking with fear. When I ask them: ‘What is the matter?’, they say: ‘I don’t know what’s going on.’… People who are frightened of the court will often plead guilty, even when they are innocent, so as to get finished and out of court quickly. They can also plead guilty because they don’t know what’s going on. One old lady from Maryvale Station was picked up on a ‘drunk’ charge. She doesn’t drink at all. She went to the hotel looking for her daughter; she was worried about her. I said: ‘Why did you say “guilty”’? She said: ‘I didn’t understand what was happening, so I said the same as the woman in front of me’. (Lester, cited in Cooke, 1995: 101)

The preceding discussion might give the impression that witnesses have no power to shape the evidence they present. But of course even in rule-governed court contexts, people have some agency to counter the strategies of their examiners with their own. Anita Barry (1993) describes ‘narrative cooperativeness’, in which the witness and their examiner cooperate in the construction of a coherent narrative. This occurs during examination-in-chief, when the person in the stand and the lawyer are ‘on the same side’. In these instances, both parties share an interest in creating a logical account of the issues at hand, and work together to do so. The power discrepancies remain, but their effects are not as dire as in cross-examination, where the parties may be attempting to create alternative narratives. Gregory Mateosian (1997) notes that witnesses are not simple dupes in the examination process and do not respond to questions as though they were a neutral request for information. They recognise the implicit blame, disbelief and accusations of questions and can often identify the narrative counsel attempts to produce. This in turn makes it even more desirable for attorneys to dominate the process. Given this necessity, and in light of the formal rules and practices listed above, the possibilities for a substantial subversion of the processes are always available, but often limited.

Research shows sentencing to be a haphazard activity where judges have to balance up a number of factors. These include the gravity of the offence, the prior record of the offender, the range of penalties available by law, parity with other recent decisions and harm to the victim. These more factual matters are cross-cut by the various ideologies of punishment discussed in the next chapter: retribution, deterrence, reform. In pulling all these together, the judge may well have to rely on rules of thumb. It is noteworthy in this respect that factors influencing sentencing can contradict each other. An often cited example is the fact that an emphasis on retribution looks backwards to the offence, while one on deterrence might look to the future and focus more on crime reduction. The relative importance of such factors might also vary with swings in policy, ideology or the Zeitgeist. In the 1960s and 1970s theories about rehabilitation were dominant, but by the 1980s a conservative backlash saw older ideas about just desserts return to prominence.

The question of justifiable difference remains pertinent even in light of the sentencing guidelines that were introduced in part to limit judicial discretion and discriminatory outcomes (Tonry, 1996: 164; these issues are discussed further on pp. 136–139). In the Federal US context, there is still scope for judges to discount or add to sentences, according to prescribed circumstances. As we shall see, this leads to discrepancies between ethnic groups. Given that the most systematic consideration of these issues has occurred through studies of the US criminal justice system, the following discussion focuses on this context.

When sentencing guidelines were absent, the evidence of racial discrimination in sentencing seemed relatively straightforward. A series of studies from the 1950s to the 1970s concluded that black people were treated more harshly than white offenders. Unfortunately, these studies used unsophisticated statistical techniques. In particular, they failed to control for the seriousness of the crime committed and prior criminal records (Hagan, 1974). These are relevant, legal issues a judge must consider when sentencing an offender. When these were included in the equations, John Hagan concluded that race and the severity of the sentence can be linked in a statistically significant relationship, but the influence was only minor. His conclusions were supported by the later work of Gary Kleck (1981), who found that many disparities simply disappeared when analyses included a prior criminal record. Both writers argued that claims of racial discrimination were only supported in the South, and only in crimes that attracted the death penalty. They concluded that there is an absence of direct and systematic racial discrimination (cf. Hagan and Bumiller, 1983; Wilbanks, 1987).

In more recent years questions of direct discrimination have increasingly given way to studies of subtle and institutionalized racial disadvantage (Zatz, 1987: 70). Offenders from minority groups might suffer indirect discrimination (Spohn, 2000). This means that race (the independent variable) and sentencing outcomes (the dependent variable) are linked through a third factor. Differences might result from economic or social disparities that attach to race. For example, better lawyers or the ability to raise the bail money for pre-trial release have been found to contribute to more lenient sentences; Black and Hispanic offenders are more likely to come from a lower socio-economic group, and are less likely to be able to afford these privileges (Steffensmeier and Demuth, 2000, see also Holmes et al., 1996).

Increasingly, social scientists have been turning to the concept of contextual discrimination (Walker et al., 1999: 17) to explain disparities between groups. Contextual discrimination recognises that sometimes offenders are treated equally, but other times they are not. Outcomes may be affected by the intersection of the type of crime and the place of its commission, the age, gender and race of the offender, the race of the victim (Spohn, 2000: 434). This is termed an interaction effect. Recent studies provide support for interaction effects when data do not indicate any direct effects of race. For example, Samuel Walker, Cassia Spohn and Miriam DeLone (1999) report that Blacks as a group do not receive harsher sentences than whites but those without a job and living in Chicago receive longer sentences than their white counterparts, as do unemployed Hispanics. In a different study Darrell Steffensmeier and his colleagues (Steffensmeier et al., 1998) find that young, Black males suffered harsher sentences that any other combination of race, gender and age. Such studies suggest that race is a significant factor in sentencing outcomes, but its effects may be contingent.

Interaction effects remind us that we are not simply raced beings – our social identities are constituted by additional characteristics, which may be relevant when our actions are judged. The findings support a point we make several times in this book. It is less useful to look for ‘racism’ in the criminal justice system in terms of individual mental prejudice and more useful to appreciate the complex and unintended consequences of policies, procedures and practices as these impact upon diverse populations. This is not to deny that the criminal justice system is closely tied to issues of race politics but rather to suggest such connections need to be systematically theorized in a sustained, sociological way rather than opined away as simply ‘prejudice’ or ‘racism’ without a fuller detailed inquiry.

Other writers have linked racial differences in the sentencing of drug offenders to the effects of moral panics (see p. 17). They locate judicial discretion in the context of the ‘war on drugs’ that has disproportionately drawn Black and to a lesser extent Hispanic people into the criminal justice system. Further, these groups are more closely linked to drug crimes in media representations and the popular imagination. Sentencing judges, it has been suggested, are not immune to the effects of this discourse (Chiricos and DeLone, 1992; Jenkins, 1994; Tonry, 1995).

Before we leave this discussion, it is useful to overview the limitations of the body of work as a whole. In the US context the following issues make it difficult to draw any final conclusions:

Overall, the data on this question point to an absence of direct and deliberate discrimination on the part of criminal justice personnel generally and judges, in particular. Those who are disadvantaged in society generally are more likely to become caught up in the criminal justice system and at each step their disadvantage is compounded. These conclusions present a massive challenge to those who wish to address bias and discrimination in the courts. Success cannot come from the appointment of ‘better’ judges, judicial education or sentencing guidelines. It will be encouraged through the dismantling of entrenched processes and thinking in a more structural and sociological way about the often unintended outcomes of policies when these are played out in the real world.

Other researchers have focused on the differences between women. They argue that sentencing decisions are informed by the ways in which women conform to the cultural ideal of womanhood. For example, David Farrington and Allison Morris (1983) reported that marital status makes a difference to the sentences imposed upon women but has no effect on the severity of a man’s sentences. Kathleen Daly (1989) concluded that family ties were significant for both men and women, but women were treated even more leniently than familied men. In the same vein, Pat Carlen (1983) found that Scottish authorities assumed that a husband would be likely to keep his wife ‘in line’, so that imprisonment was unnecessary. Carlen also argued that being a ‘good mother’ could lead to a non-custodial sentence, on the grounds that children should not suffer by the absence of their mum. Jailing women who do not fit the ideal – those whose houses were untidy, or who are deemed to be insufficiently nurturing towards their children, or whose actions might lead to an unsavoury home life – was not seen by officials to have such negative effects on children. The types of crime might also be significant: Matthew Zingraff and Randall Thomson (1984) discovered that women who assault or abandon their children received harsher sentences than men in the same circumstances.

We might conclude that chivalry and paternalism are not particularly worrying if they result in more lenient sentences for women who have been marginalized in legal discourse. But Elizabeth Moulds (1980) notes that these attitudes assume a power relationship similar to that of a parent and a child. Women are not children – they are capable of rational decisions, calculating risks, knowing what is right and what is wrong and acting accordingly. To presume otherwise echoes traditional constructions of womanhood that have denied opportunities to women in a number of spheres. Further, it is a little problematic to argue for equality, save in those circumstances in which women benefit from discriminatory attitudes.

Her normal sister is kept within the paths of virtue by many causes such as maternity, piety and weakness, and when these counter-influences fail, and a woman commits a crime, we may conclude that her wickedness must have been enormous before it could triumph over so many obstacles. (Lombroso and Ferrero, 1895)