Court Reform on Trial: Why Simple Solutions Fail

Foreword • 2013

I STARTED WORKING in criminal justice in the early 1990s. My first job was really an internship spent aiding a small planning team that was working to implement the experimental Midtown Community Court in New York City.

The Midtown Community Court was a neighborhood-based courthouse that sought to improve the judicial response to minor offending in and around Times Square. At the same time, the Court aspired to reengineer the relationship between courts and communities in an effort to bolster public trust in justice.

Midtown was a one-of-a-kind project—the first community court in the country. But, as is almost always the case, Midtown was not without precedent. There were several earlier initiatives and organizations that influenced the trajectory of the project, from the pioneering drug court in Miami, Florida to the Vera Institute of Justice in New York.

A number of intellectuals also influenced the development of the Midtown Community Court. Indeed, in the early days of the project, a handful of articles and books were shared broadly amongst the team and discussed with admiration. These included James Q. Wilson and George Kelling’s essay from The Atlantic, Broken Windows, which made the case that the justice system should take minor crime and disorder seriously, and Robert Putnam’s Bowling Alone, which documented the decline of social capital as Americans grew more and more isolated from one another.

These pieces left a mark on me as I was getting started in criminal justice, as did similarly provocative scholarship by thinkers like John Goldkamp, Joan Petersilia, Tom Tyler, David Kennedy, and others. But no intellectual work made a deeper impression on me in my formative professional years than Malcolm Feeley’s book The Process is the Punishment: Handling Cases in a Lower Criminal Court.

Feeley’s book was the product of months spent embedded in a New Haven, Connecticut criminal court. In studying the court, Feeley was somehow able to combine the outsider perspective of an anthropologist, the structural analysis of an organizational theorist, and the clear writing of a journalist. The result was a masterpiece—a detailed account of a low-stakes, high-volume courthouse charged with managing the poor and the disadvantaged and their problems.

I connected with Feeley’s book in no small part because I had had a similar experience, albeit on a much more modest scale. As part of my internship at the Midtown Community Court, I spent a week in Manhattan Criminal Court sitting on the bench with a judge. As a non-lawyer, I found the experience surprising.

Expecting to see trials, I saw only plea bargaining. Expecting to see serious criminals, I saw primarily individuals suffering from addiction and mental illness and joblessness. Where I thought I would see serious punishments, I saw instead mostly fines and short-term jail sentences. And where I expected the presumption of innocence, I instead saw that nearly every actor involved in the process seemed to assume that the defendants were in fact guilty.

The gap between my expectations, which were informed primarily by my civics lessons as a student and the representations of the legal system in popular culture, and the realities of life in the courts was profound. Indeed, this gap is a significant part of what has kept me working in justice reform over the past two decades, including my current position as the executive director of the Center for Court Innovation.

Part of my job back in the early days of the Midtown Community Court was to write proposals for funding. I borrowed freely from Feeley’s analysis (and language) as I tried to make the case to private foundations, elected officials, and government funders that they should make an investment in reforming the way that misdemeanor cases were handled by the justice system.

If all that Feeley had given me (and the world) was The Process is the Punishment . . . dayeinu.

But of course Feeley had other tricks up his sleeve, as I discovered when my colleague Aubrey Fox and I began the research for what would ultimately become Trial & Error in Criminal Justice Reform: Learning from Failure (Urban Institute Press, 2010).

I honestly can’t remember how I came across Court Reform on Trial: Why Simple Solutions Fail. It may have been a matter of a simple Google search. Or maybe there was a spare copy in the makeshift library that my agency maintains. Or perhaps someone that we interviewed recommended the book.

However it arrived on my desk, I knew right away that I had found another intellectual touchstone.

Court Reform on Trial has all of the hallmarks of Feeley’s best work. Lucid prose. Idiosyncratic analysis. A willingness to speak truth to vested interests. And a commitment to describing the way the world actually works from a ground-level perspective—as opposed to the official versions of how systems theoretically should function.

You might think that a book devoted to failed court reforms would be a grim read. But it isn’t. Feeley’s text is brimming with energy not resignation. In sifting through the impacts and unintended consequences of a ranged of planned change efforts, Feeley offers reformers both sympathy (the obstacles to change are enormous) and hope (if we create more realistic expectations, it will be easier to recognize success).

My copy of Court Reform on Trial bears the marks of my endorsement. Almost every page is heavily underlined and full of marginal exclamations. To choose just a handful of observations that stuck in my head for weeks after I had read them:

The claim that plea bargaining signifies a decline in the adversary process is a rhetorical appeal to a mythical yesterday. (p. 23, original pagination)

In a very real sense, the courts—charged with handling society’s failures—will always fail. What the family, the church, the workplace and the school cannot do, neither can the courts. (p. 19)

The courts should not be seen merely as bureaucratic organizations committed to clear and well-defined purposes—they should be understood as arenas in which a range of competing and conflicting interests collide and vie for attention. (p. 10)

In order to mobilize public support, reformers must often offer dramatic plans that are both vague and simple. But these very strategies that facilitate innovation undercut implementation. (p. 192)

Feeley dispenses these pearls of wisdom in Court Reform on Trial as he traces the arc of several court-related innovations (bail reform, pretrial diversion, sentencing reform, and speedy trial rules) through four separate stages of development: initiation, implementation, routinization, and evaluation.

Lessons abound for would-be justice reformers. Among other things, Feeley highlights the importance of conducting rigorous research before an innovation is spread broadly, the difficulty of handing over a new program from a non-profit group to a government agency, the impact that constant fundraising can have on an organization’s ability to achieve its mission, and the seductive power of creaming low-risk participants when identifying a program’s target population.

Traces of these ideas—as well as the spirit of pragmatism with which Feeley dispensed them—would end up sprinkled throughout Trial & Error in Criminal Justice Reform. I also distributed selected passages from Court Reform on Trial to staffers at the Center for Court Innovation who were responsible for planning and implementing a range of demonstration projects in the New York courts so that they could benefit from the experience of the reformers who came before them and avoid making similar mistakes.

The world has changed a lot and not at all since Court Reform on Trial was first published in 1983. Feeley could not have predicted that crime rates would plummet and that incarceration rates would skyrocket over the past three decades. He could not have anticipated the growing sophistication of criminal justice practitioners as they have focused new energy on matching interventions to the risks and needs presented by individual offenders. Nor could he have foreseen a range of innovations—drug court, COMPSTAT, Ceasefire, HOPE Probation, and others—that have restored at least a measure of confidence that the criminal justice system is capable of both making a dent in crime and changing the behavior of offenders.

But what is striking reading Court Reform on Trial again in 2013 is just how relevant it still is. There are several reasons for this.

First, Feeley was, in many respects, eerily prescient. For example, in a brief aside, he writes about the new (at the time) development of neighborhood justice centers—essentially mediation centers piloted by the United States Justice Department to resolve civil disputes and minor criminal cases in an effort to reduce burdens on the courts in selected cities. Feeley worries aloud that the creation of the justice centers was accompanied by moral fervor, certainty, a blitz of publicity, and exaggerated promises and that the initiative will end in a yawn. (p. 112) History suggests that Feeley’s concerns were well-justified.

Another reason that Court Reform on Trial is still relevant is that many of the problems that Feeley documented are still very much with us. For example, the problem of pretrial detention may in fact be worse today than it was when Feeley originally wrote.

But the number one reason why Court Reform on Trial should still be required reading for anyone who wants to help our justice system improve is the book’s relentless focus on failure. As far back as 1855, Abraham Lincoln is reported to have said that men are greedy to publish the successes of [their] efforts, but meanly shy as to publishing the failures of men. Men are ruined by this one-sided concealment of blunders and failures.

The truth is that blunders and failures will always be with us. Thankfully, we will also always have Malcolm Feeley’s Court Reform on Trial to help us make sense of what went wrong—and how it might be fixed.

GREG BERMAN

Executive Director,

Center for Court Innovation

New York City

February 2013

Preface • 2013

DURING THE mid-1970s, the Twentieth Century Fund approached me about a project to asses some of the efforts on the seemingly endless War on Crime. I was flattered; I was a post doc at the Yale Law School, had just finished my first book, and was awed by the Fund because forty years earlier it had sponsored Gunnar Myrdal’s classic study, An American Dilemma (1944). At the time I was in the midst of a study of the structure and effectiveness of the Law Enforcement Assistance Administration (LEAA) (Feeley and Sarat 1980), with which I had been peripherally involved for several years. And I was also resident social scientist at the Yale Law School’s Guggenheim Criminal Justice Program, whose agenda was to promote effective reform in the criminal justice system.

The Guggenheim Program had thrust me in contact with a host of impressive people, most particularly its tireless director, Professor Daniel Freed, former Department of Justice official and principal author of several major pieces of legislation. Others involved in the program were Abe Goldstein, distinguished criminal law scholar and former Dean of the Yale Law School, crime scholar Joe Goldstein, and a steady stream of impressive associates and visitors, including Princeton’s Jim Doig; Herb Sturz, Director of the Vera Institute in New York City; Judge Patricia Wald of the D.C. Circuit Court of Appeals; Judge Marvin Frankel of the U.S. District Court for the Southern District of New York and author of the influential book, Criminal Sentences: Law without Order (1973); New York Police Commissioner Patrick Murphy; my now long-time friend and later a judge, Jonathan Silbert; and still other scholars, judges, police chiefs, and legislators.

As resident social scientist for this collection of change agents, my role was to offer social science insights on the various reform proposals the Program participants advanced. The role was fraught with challenge: most proposals were put forward by successful lawyers and practitioners who often knew—and knew to a certainty!—that their ideas would work. Inconvenient truths and organization theory offered but a weak rejoinder, and a young social scientist usually did little to dissuade them. But, I had some experience with the issues—books in the making, and some practical experience as an adviser and consultant to several justice agencies and programs in New York, New Haven, and elsewhere. In addition, I was part of a cohort of young social scientists who passed through Yale under the tutelage of Stan Wheeler, who gave us the resolve to speak truth to power.

So when the Carol Barker and her colleagues at the Twentieth Century Fund approached me about the idea of conducting a study on problems confronting reform efforts in the criminal process, I was excited. But my first response was to say what I did not want to do. I did not want to undertake the type of study the Fund had just commissioned on the Law Enforcement Assistance Administration (LEAA), a volume that had done little more than compile a list of horror stories and accounts of foolish expenditures on needless items—machine guns for small town police, half-tracks for riot control, and the like. The report was of course correct in its facts; vast sums of money were wasted on patently stupid projects. But criticizing such failings was like shooting fish in a barrel.

I wanted to address a more subtle question. Why did so many good ideas put forward by well-intentioned people go astray? What is it about their design, implementation, and impact that lead such programs to fail or even to exacerbate the very problems they seek to ameliorate? What happens when someone or some group with a good idea and enough political muscle to bring it to fruition ends up generating a disappointment? My belief was that we needed a more sophisticated theoretical understanding of the nature, organization, and operations of criminal courts; more patience and humility in trying to effect reforms; lowered expectations about the capacity of an institution charged with managing society’s failures; and more experimentation.

Many reforms, I believed, have foundered on the failure to appreciate two simple truths: One is the failure to appreciate just how decentralized and fragmented our criminal courts are. The other is that when thinking about changes, many reformers—prosecutors, judges, legislators, academics—tend to conjure up an image of a judge trying cases rather than a prosecutor dealing out justice on the fly, and thus fail to appreciate the complex dynamics and incentives at work in this highly disjointed process. What may be a good idea from one perspective, or high on one agency’s priorities, may be a bad idea, or low or nonexistent, on another’s. The results are routinely failed programs or, even worse, counterproductive programs that that present the impression of progress.

The Twentieth Century Fund found my ideas intriguing and supported the project. In the Introduction to the book that eventually flowed from the effort—this book—I laid out what I think are some basic, but often counter-intuitive, truths about the operations of the criminal courts. In subsequent chapters I examined several important reform efforts from with these truths in mind. The result, I hope is a useful diagnosis of the nature of failures in the criminal justice system, and some ideas on how to do things better.

As I reread this book now some thirty years after initial publication, I see things that I would have done differently, but for the most part I believe that my ideas hold up, that my theory, my analysis, and my conclusions are solid. My analysis tends to reject the idea that at least the more substantial reforms fail because they are merely symbolic and not real responses to complicated problems. Certainly some reforms are largely symbolic and the value to their sponsors is in the public perception of the effort and not its consequences. But a great many—indeed the overwhelming majority of—reform efforts advanced by thoughtful people dedicated to improving things also fail. My effort was to account for their failures, and to suggest ways to improve their chances of success. Rather, I argue that failure often stems from an inability to conceptualize the nature and functioning of the criminal process adequately. It is as much a failure of theory as it is of will.

Looking at these reforms with the hindsight of nearly three decades, I think my analysis came close to the mark. The administrative model of bail reform that I detected in the 1970s has emerged into a full-fledged risk management system (Feeley and Simon 1992). The rights approach for bail reform first advanced by Caleb Foote in the 1950s remains unfulfilled and more remote today than it was then. The sentence reforms examined here certainly missed their mark entirely on minimizing racial disparities. Indeed, from hindsight we see that most inadvertently helped foster still more subtle forms of racial discrimination, as well as promoted harsher sentencing. Since the 1970s of course changes in sentencing policies have had even more disastrous effects than I envisioned at the time. Liberals, coopted by the determinate sentencing movement, never recovered and were powerless, indeed all but voiceless, in the face of the onslaught of the Law and Order lobby. A huge library of research since then has revealed that pretrial diversion programs continue to promote add-on conditions to probation rather than facilitate alternatives to custody. Speedy trial laws, both state and federal, remain forms without substance because they were premised upon the false assumptions that there are trials in the criminal process, and that someone somewhere in the system actually wants faster disposition times.

None of these reforms was stupid—well, the Rockefeller Drug Law was not smart. But apart from this, they were not the nasty, vindictive, and draconian policies that emerged later in the 1970s and into the 2000s. Almost all of them were advanced by thoughtful practitioners who had marshaled enough political support to see their ideas become at least a formal reality. Yet all of them fell prey to the same twin problems I identified: unappreciated hyper-fragmentation and a tendency to superimpose a reform onto an idealized vision of the adversary process that bears scant relation to reality. My solution to this seemingly inevitable pattern of failure was to insist upon lowered expectations, greater realism in characterizing the criminal process, an increased focus on realizing rights in concrete situations, and above all a concrete problem-oriented focus when thinking about change—what in particular is bothering us, and how best under the circumstances can we directly confront it?

My concern with a dogged problem-oriented approach to reform grew after I moved to Wisconsin, and engaged in discussion with my colleague Herman Goldstein at the University of Wisconsin. Beginning in the early 1970s (Goldstein 1973; 1990), he began to argue, with increasing vigor, that police reformers should be both more realistic and focused about what police actually do and can do, and to adopt a tentative and experimental approach to finding ways to better manage the problems they confront. Since then of course Goldstein’s ideas have precipitated a worldwide revolution in thinking about policing and police practices.

As Goldstein was developing his ideas about police reform, I was adapting them to my thinking about court reform. If I have any regrets about Court Reform on Trial, it is that I did not fully appreciate how revolutionary Goldstein’s ideas were and how powerful the problem-oriented approach was. I pointed in the direction, but did not sufficiently develop it.

However, others have seized upon the idea—perhaps through engagement with this book and Goldstein’s work, but certainly independently as well—and used it with spectacular success (to the extent that any reforms in criminal court can be associated with the term spectacular). Foremost among these reformers are John Feinblatt and Greg Berman, respectively founding Director of the Center for Court Innovation, and its second Director. They established and have sustained an institution designed to serve an R&D function for an industry that does not have one, and an institution premised on the idea of problem-oriented reforms in criminal courts and dedicated to the idea of modest improvements and experimentation. Through their insights, good nature, indefatigable energy, and extraordinary leadership, the Center for Court Innovation has made a significant impact in the criminal process in New York City, New York State, and around the country and world. (See, e.g., Berman, Fox, and Wolf 2004; Berman and Fox 2010.) Elsewhere around the world, still other change agents have adopted similar problem-solving approaches in criminal justice with marked success. Foremost among them is Australian John Braithwaite (2002), whose work on problem-solving through responsive regulation and restorative justice has changed the nature of discourse about criminal justice polices around the world.

Of course American criminal courts remain travesties of justice and operate well below standards embraced by their counterparts in other advanced democratic countries. Furthermore, they have taken a great many steps backward since the publication of Court Reform on Trial. Racial discrimination has expanded not contracted despite (or perhaps because of) the determinate sentencing movement. Other reforms have had unanticipated consequences. Prosecutors, concerned with electoral politics, have elbowed judges and defense attorneys to the margins in the handling of routine cases. And all this has been fanned by public opinion.

Still, there are signs of hope. There remain a number of reformers committed to enlightened policies, exemplary courts, exemplary programs, and good ideas, and there is a growing literature on how to engage in trial and error problem-solving efforts in ways that can bring about lasting improvements in the courts. The legacy of Herman Goldstein’s pioneering ideas about problem-oriented policing has been transferred to the courts through the institutionalized work of the Center for Court Innovation, the Vera Institute, and a few other isolated R&D institutions which nurture good ideas. Foremost among them is the Center for Court Innovation, and for this reason, I am honored that Greg Berman has written the Foreword to this reissue of Court Reform on Trial.

MALCOLM M. FEELEY

Claire Sanders Clements Dean’s Professor

Jurisprudence and Social Policy Program

Boalt Hall School of Law

University of California at Berkeley

March 2013

REFERENCES

Berman, Greg, Aubrey Fox, and Robert V. Wolf. 2004. eds. A Problem-Solving Revolution: Making Change Happen in State Courts. New York: Center for Court Innovation.

Berman, Greg and Aubrey Fox. Trial & Error in Criminal Justice Reform: Learning from Failure. 2010. Washington D.C.: Urban Institute Press.

Braithwaite, John. 2002. Restorative Justice and Responsive Regulation. New York: Oxford University Press.

Feeley, Malcolm and Jonathan Simon. 1992. The New Penology: Notes on the Emerging Strategy of Corrections and Its Implications. 30 Criminology 449-474.

Feeley, Malcolm and Austin Sarat. 1980. The Policy Dilemma: Federal Crime Policy and the Law Enforcement Administration, 1968-1978. Minneapolis: University of Minnesota Press.

Frankel, Marvin. 1973. Criminal Sentences: Law without Order. New York: Hill and Wang.

Goldstein, Herman. 1979. Improving Policing: A Problem-Oriented Approach, 25 Crime & Delinquency 236-258.

Myrdal, Gunnar. 1944. An American Dilemma: The Negro Problem and Modern Democracy. New York: Harper & Bros.

Foreword • 1982

LIKE MANY other institutions, the Twentieth Century Fund has been concerned about the explosive rise in crime. With our limited resources, we could not undertake major examinations of the various components of the criminal justice system that, in any case, were being studied by both private and public agencies. Instead, we decided to establish a series of independent Fund Task Forces to investigate discrete problems affecting criminal justice and to make recommendations for treating them. Thus, our Task Forces were examining the role of the Law Enforcement Assistance Administration and sentencing policy, one report concentrating on adult criminals, the other on juveniles.

Our focus on sentencing policy naturally led to a consideration of the place of the courts, which were widely reported to be in a state of crisis. The courts, of course, were a critical component of the so-called system and had been subject to many efforts designed to reform their alleged failings. And just as the Fund’s research staff began to search for scholars familiar with the courts and their workings, we received an inquiry from Malcolm M. Feeley, who expressed an interest in a critical appraisal of court reform.

Mr. Feeley’s credentials and his proposal impressed the staff and the Fund’s Board of Trustees, which gave its approval to his project. An objective and thoughtful scholar, he wanted to evaluate a number of court reforms, explaining how they had developed, what claims were made for them, what differences they made once put into effect, and what should be done now. In the course of his research he came up with many useful insights and findings, among them that the changes—the reforms—imposed upon a system are, in the course of events,