LOWER CRIMINAL COURTS - THE PERILS OF PROCEDURE

• NCJ Number: 51100
• Journal: Journal of Criminal Law and Criminology Volume: 69 Issue: 3 Dated: (FALL 1978) Pages: 270-290
• Author(s): J L BARKAI
• Date Published: 1978
• Length: 21 pages
• Corporate Author: Northwestern University; Williams and Wilkins Co
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

A CONCEPTUAL FRAMEWORK IS PRESENTED FOR ANALYZING PROBLEMS OF LOWER CRIMINAL COURTS. DISCUSSED ARE LOWER COURT REFORM MOVEMENTS, CONTRASTS BETWEEN JUDICIAL THEORY AND PRACTICE, AND NONADVERSARIAL FORMS OF PROCEDURE.

Abstract

FREQUENT INVESTIGATION INTO THE PROCEDURES AND PRACTICES OF THE LOWER CRIMINAL COURTS IN THE UNITED STATES CONCLUDED THAT THESE COURTS HAVE FAILED TO DEAL JUSTLY AND FAIRLY WITH PERSONS INVOLVED IN THE SYSTEM. THREE WAVES OF INTEREST IN REFORMING THE LOWER COURTS ARE DISCERNIBLE IN UNITED STATES HISTORY. THE FIRST CORRESPONDED ROUGHLY TO THE PERIOD OF POLITICAL REFORM KNOWN AS THE PROGRESSIVE ERA IN THE EARLY 1920'S; THE SECOND OCCURED AROUND 1929-31 AND APPEARED DURING A TIME OF ANXIETY OVER THE SPREAD OF CRIMINAL COMMUNITIES AND OF NATIONAL CONFIDENCE IN SOCIAL STABILITY; THE FINAL WAVE TOOK PLACE IN THE 1960'S AT A TIME OF TENSION AND DISCORD IN THE LARGER SOCIETY. THE RELATIONSHIP BETWEEN THIS SOCIAL INSTABILITY AND REFORM MOVEMENTS CAN BE DESCRIBED THEORETICALLY AS A RESULT OF A HEAVY RELIANCE ON THE LOWER COURTS DURING TIMES OF SOCIAL UNREST TO DEMONSTRATE THE AVAILABILITY OF JUSTICE WITHIN THE EXISTING STRUCTURE OF SOCIAL VALUES AND ARRANGEMENTS. THE COURT'S FAILURE TO DO SO AT SUCH TIMES WOULD SEEM TO PRESENT AN ENHANCED THREAT TO THE SURVIVAL OF THE LEGAL SYSTEM. THIS IS HELD NOT TO BE TRUE SINCE THE UNJUST TREATMENT OF THE POOR IN AMERICAN LOWER COURTS HAS NOT WEAKENED THE SYSTEM. PROCEDURAL CHANGES THAT HAVE BEEN RECOMMENDED AS A SOLUTION TO THE PROBLEMS OF THE LOWER CRIMINAL COURTS ARE DISCUSSED, AND THEY ARE JUDGED AS WEAKER IN PRACTICE THAN THEORY. NONADVERSARIAL MODELS OF THE CRIMINAL PROCESS ARE EXAMINED INCLUDING HERBERT PARKER'S CRIME CONTROL AND DUE PROCESS MODELS, JOHN GRIFFITH'S BATTLE MODEL, AND THE GRIFFITH/LLEWELLYN FAMILY MODEL. IT IS CONCLUDED THAT, IN A SOCIETY WHERE THE NONADVERSARY MODEL OF CRIMINAL ADJUDICATION WORKS, IT MAY BE THE BEST OF ALL POSSIBLE SYSTEMS. HOWEVER, THERE ARE DANGERS INVOLVED IN ATTEMPTS TO GRAFT A NONADVERSARY MODEL OF CRIMINAL PROCEDURE ONTO A SOCIETY OF INEQUALITY AND DIVISION SUCH AS EXISTS IN THE UNITED STATES. (DAG)