Archive | 2019
The Process Is the Problem
Abstract
Malcolm Feeley’s book, The Process is the Punishment, highlights how the cost to criminal defendants of invoking their rights in lower criminal courts ultimately ends up being greater than the benefits of the rights themselves. In doing so, Feeley reveals how the costs of the pretrial process are not only important sanctions in their own rights, but also how they in turn shape and are shaped by the nature of the court organization and the conceptions of substantive justice. Feeley’s account, however, focused on criminal not civil cases. This article extends Feeley’s analysis into civil litigation and alternative dispute resolution processes. I argue that in these contexts, the process is not the punishment, but rather, the problem. Focusing largely on the procedural rules in court and alternative disputing processes, this article highlights how the United States Supreme Court has trimmed procedural protections in civil courts and alternative disputing forums. With the advocacy and support of private organizations and the defense bar, due process rights and procedural protections have been redefined and consequently, citizens’ access to justice is significantly undermined. When individuals do invoke their procedural and due process rights and seek substantive relief in court or arbitration, they are subject to a process filtered with organizational values and influence in subtle and sometimes not-so-subtle ways. Shauhin Talesh Draft-Do not circulate 2 Introduction Malcolm Feeley’s pathbreaking book, The Process is the Punishment, is a classic study of the gap between the law on the books versus the law in action. In particular, Feeley exposes the tension between the ideal of “due process,” which seeks to allow individuals an opportunity to be heard at a meaningful time and in a meaningful manner, with the reality of how criminal processes and procedures impact a litigant navigating through the criminal justice process in powerful ways. Although due process protections in theory protect defendants and preserve the ideal of serving justice, they developed largely without regard to cost. Feeley’s book highlights the challenges and costs of invoking due process rights in various criminal settings. Acknowledging the paucity of trials in the routine flow of criminal cases, Feeley’s ethnographic exploration of lower criminal courts in New Haven reveals that most of the court’s work gets done in the process of arraignment and other pretrial processes. In these settings, cases are often dismissed, guilt is pleaded, and fines are imposed. Feeley’s exploration of the decisionmaking at pretrial detention and release, the appointment of public defenders, adjudication, sentencing and pretrial processes reveals that defendants often incur the costs of loss of pay, inconvenience, auto impoundment charges, and attorneys’ fees in some instances. Efforts to slow the process down and make it truly deliberative might lead to still harsher treatment of defendants and more lost time for complainants and victims. Expanded procedures designed to improve the criminal process are not invoked because they might be counterproductive. Mechanisms to inhibit discretion by institutional actors and litigants do not perform their expected functions. Defendants suffer the indignities of dispute and defense and often navigate a distinctly unfamiliar courtroom setting. Feeley’s in-depth exploration of lower criminal courts leads him to conclude that the process is the punishment. That is, the cost to criminal defendants of invoking their due process Shauhin Talesh Draft-Do not circulate 3 rights in lower criminal courts ultimately ends up being greater than the benefits of the rights themselves: “the real punishment for many people is the pretrial process itself; that is why criminally accused invoke so few of the adversarial options available to them” (Feeley 1979: 241). In doing so, Feeley reveals how the costs of the pretrial process are not only important sanctions in their own rights, but also how they in turn shape and are shaped by the nature of the court organization and the conceptions of substantive justice. Feeley’s book highlights a paradox that our criminal justice system continues to wrestle with: In the name of “due process,” American law tries to establish rules that guard against the possibility that individuals will suffer sanctions and endure unfair consequences. Our criminal justice system seeks to curb this fear by fostering an ideal of perfectibility and a preoccupation with procedure. The reality, however, is that the process is so complex and cumbersome that these due process protections serve limited functions at best in the vast majority of criminal cases. That is, the costs of invoking many due process rights often render many of these rights shallow symbols of fairness that are not invoked in action. As perceptive as Feeley’s account is, he focused only on criminal courts. What about civil courts in the United States? Are procedural protections and due process rights in the civil justice system so costly that they make achieving substantive relief difficult? Similar to the criminal context, United States Supreme Court cases seek to preserve due process protections in civil courts. Moreover, the drafters of the Federal Rules of Civil Procedure in 1938 created a system that leads to efficient, speedy, and just results. The following examines how process impacts the civil justice system, both among courts and alternative disputing forums. I argue that in the civil context, the process is not the punishment, but rather, the problem. Focusing largely on the procedural rules in court and alternative disputing processes, this article highlights how the United States Supreme Shauhin Talesh Draft-Do not circulate 4 Court has trimmed procedural protections in civil courts and alternative disputing forums. With the advocacy and support of private organizations and the defense bar, due process rights and procedural protections have been redefined and consequently, citizens’ access to justice is significantly undermined. When individuals do invoke their procedural and due process rights and seek substantive relief in court or arbitration, they are subject to a process filtered with organizational values and influence in subtle and sometimes not-so-subtle ways. The Deformation of Civil Procedure in the United States The establishment of the Federal Rules of Civil Procedure in 1938 reflected a policy of citizen access for civil disputes. The Federal Rules promote the resolution of disputes on the merits rather than on the basis of the technicalities that characterized earlier procedural systems. Concerned that the outcomes of trials turned not on the merits of the case but on the skills of lawyers or the financial resources of the parties, the drafters were determined to implement a system that would allow the parties to obtain the “fullest possible knowledge of the issues and facts before trial” (Bell et al. 1992:6). The drafters believed that wide-ranging discovery would ensure a fair and just determination in cases and remedy the imbalance of power between the wealthy and the poor. As noted in FRCP Rule 1, the federal rules contemplate a system that ensures a “just, speedy, and inexpensive determination of every action and proceeding.” (Fed. R. Civ. Pro. 1) Similar to the criminal courts, the procedures established in non-criminal courts in the United States—at least when such rules were promulgated in 1938—was to ensure that a procedurally fair system leads to substantively just results. However, over the past 25 years, there has been a dramatic shift in the way the Federal Rules are conceptualized and interpreted by the United States Supreme Court. This shift led to an increasingly early procedural disposition of cases prior to trial. Moreover, litigants have far Shauhin Talesh Draft-Do not circulate 5 less access to courts. Even though litigants enjoy more consumer and civil rights protections than ever before, litigants using the civil justice system encounter a procedural system that narrows a person’s ability to effectuate these rights. The Supreme Court’s shift has been in line largely with large corporations’ desire for less discovery and fewer trials. Trials are now few and far between. The focus on case disposition has led to a series of procedural hurdles and transformed the relatively uncluttered pretrial process that the drafters of the rules established into one where the process is now the problem. The following highlights how the various phases of civil procedure have changed in ways that limit due process rights and access to justice. The Pleading Process is the Problem Recent Supreme Court decisions in Bell Atlantic Corp. v. Twombly (2007) and Ashcroft v. Iqbal (2009) made plaintiffs ability to survive a motion to dismiss at the pleading stage for failing to state a claim upon which relief could be granted much harder. Since 1938, Rule 8, the core federal pleading provision, required only “a short and plain statement...showing that the pleader is entitled to relief.” Federal R. Civ. Proc. Rule 8(a)(2). The rulemakers drafted this rule in this manner in order to make it easy for plaintiffs to enter federal courts without technicality or formality. Thus, pleadings were to simply give “notice” to the other side of the claims. Subsequent discovery and motion practice would eliminate non-meritorious claims. The Supreme Court in Conley v. Gibson (1957) indicated that complaints should simply “give a defendant fair notice of what the ...claim is and the grounds upon which it rests.” (47) As long as there were “no set of facts” such that plaintiffs could not establish its claim, the motion to dismiss should be dismissed. Twombly and Iqbal have radically changed the pleading standard from a “notice” pleading standard to a heightened “plausibility pleading” standard. As opposed to simply Shauhin Talesh Draft-Do not circulat