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Examining Local Legal Culture

Published online by Cambridge University Press:  20 November 2018

Thomas W. Church Jr.
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Abstract

This study examines the contours of local legal culture in four criminal trial courts. Local legal culture is conceptualized as common practitioner norms governing case handling and participant behavior in a court. A questionnaire consisting of descriptions of 12 hypothetical cases, together with questions regarding the appropriate mode of disposition, disposition speed, and sentence, was completed by judges, defense attorneys, and prosecutors in each of the courts. Responses on these questions are compared across courts and various types of practitioners. The responses are also compared with analogous data on actual case dispositions in each of the courts.

The major substantive conclusion of the research is that the existence of local legal culture—if defined as attitudinal agreement on proper disposition of criminal cases—is most apparent on issues of a procedural nature: disposition time and the necessity of a trial to resolve issues in the case. On these procedural dimensions there is general agreement among the lawyers and judges practicing in a court; furthermore, the contours of this agreement tend to differ across courts and to be related to actual practices (as illustrated by the samples of closed cases). On issues relating more to the substance of the cases—the appropriateness of plea concessions and the proper sentence—much more intracourt disagreement emerges. This disagreement is consistent with traditional notions of the roles of opposing counsel in an adversary setting, suggesting that at least attitudinal adversariness is present in the courts examined.

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American Bar Foundation Research Journal , Volume 10 , Issue 3 , Summer 1985 , pp. 449 - 518
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Copyright © American Bar Foundation, 1985 

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References

1 In the pages that follow, the term “practitioner” will refer to the professionals working in a local court environment. It thus includes lawyers (representing both prosecution and defense), the judges they practice before, and such additional actors as the administrative staff of the court and police and probation officers.Google Scholar

2 Church, Thomas, Jr., Justice Delayed: The Pace of Litigation in Urban Trial Courts (Williamsburg, Va.: National Center for State Courts, 1978).Google Scholar

3 Id., ch. 4, esp. at 54.Google Scholar

4 Good reviews of this literature and discussions of its applicability to judicial research can be found in Joel Grossman & Austin Sarat, Political Culture and Judicial Research, 1971 Wash. U.L.Q. 177–207; Herbert M. Kritzer, Political Cultures, Trial Courts, and Criminal Cases, in Peter Nardulli, ed., The Study of Criminal Courts: Political Perspectives 131 (Cambridge, Mass.: Ballinger, 1979).Google Scholar

5 See Ehrmann, Henry, Comparative Legal Cultures (Englewood Cliffs, N.J.: Prentice-Hall, 1976); Lawrence M. Friedman, Legal Culture and Social Development, 4 Law & Soc'y Rev. 29 (1969).Google Scholar

6 In addition to the delay study mentioned above (Church, supra note 2), see Martin Levin, Urban Politics and Judicial Behavior, 1 J. Legal Stud. 193 (1972); Herbert Jacob, Debtors in Court (Chicago: Rand McNally, 1969).CrossRefGoogle Scholar

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9 Id. at 75–78; Sudnow, David, Normal Crimes: Sociological Features of the Penal Code in a Public Defender's Office, 12 Soc. Probs. 52 (1965).Google Scholar

10 See, e.g., the literature on norms and informal rules in the United States Congress, best represented by Donald Matthews, U.S. Senators and Their World (Chapel Hill: University of North Carolina Press, 1960); Richard Fenno, The Power of the Purse (Boston: Little, Brown & Co., 1966).Google Scholar

11 As such, this definition differs from the typical anthropological understanding of culture in at least two ways: First, it focuses exclusively on attitudes rather than on the broader range of societal attributes generally held by anthropologists to make up a culture. And the attitudes of interest relate narrowly to the manner in which particular types of cases should be dealt with and to accepted standards of behavior; more global legal views on the importance of law abidingness, for instance, or the proper role of law in the social order are not under investigation here. A second point of difference from anthropological usage involves the group of individuals being studied. We are dealing here with a narrowly defined subgroup of society: the practitioners in a particular court system. No attempt will be made to speak of the legal culture of even a city, let alone a broader area.Google Scholar

12 See Grossman, Joel et al., Measuring the Pace of Litigation in Federal and State Trial Courts, 65 Judicature 86 (1981).Google Scholar

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16 See, e.g., Lynn Mather, The Outsider in the Courtroom: An Alternative Role for the Defense, in Herbert Jacob, ed., The Potential for Reform of Criminal Justice (Beverly Hills, Cal.: Sage Publications, 1974).Google Scholar

17 The introduction and first case from the questionnaire are reprinted in appendix A. The factual skeletons of the cases were obtained from closed files in the Wayne County Prosecuting Attorney's Office; they are thus not purely hypothetical. These facts were modified, however, so as to provide systematic variation in the 12 cases along the three dimensions found in previous research to affect disposition: (1) seriousness of the criminal incident, (2) prior criminal record of the defendant, and (3) strength of the evidence. A similar methodology was adopted in a study of prosecutorial decision making. See Jacoby, Joan, Edward Ratledge, & Stanley Turner, Research on Prosecutorial Decisionmaking: Phase 1 Final Report (Washington, D.C.: Bureau of Social Science Research, 1979).Google Scholar

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19 The defense perspective was represented exclusively by state-funded defense agencies in the Bronx, Pittsburgh, and Miami. This choice was based primarily on the difficulty of sampling members of the private bar in each city and the fact that between 70% and 90% of the adult felony defendants in those cities were represented by such agencies. In Detroit the defense attorney sample was drawn from attorneys who were most frequently appointed by the court to represent indigent defendants, since the city maintains no public defender office.Google Scholar

20 Both the absolute number of questionnaires returned and the return rate vary substantially from category to category. There are obviously several respondent categories for which I would have wished for more responses. This problem mandates that results be regarded as tentative rather than conclusive. It also argues against use of sophisticated statistical techniques. I believe there are, however, some factors that mitigate the low return rates in several of the practitioner groups.Google Scholar

First, as mentioned above, the percentages expressed in table 1 are not based on samples; rather they represent the proportion of returns from the universe of all felony-level practitioners of each type in each city. The important issue regarding rate of return is the bias likely to be introduced into the substantive findings by a relatively low return rate for some groups of respondents. Such bias may be present in some categories here, but given the nature of the questionnaire, its likely direction is, at the least, not intuitively obvious.Google Scholar

Second, problems inherent in low return rates for some groups are lessened somewhat by existence of much higher rates in related groups of respondents. The analysis that follows will focus primarily on broad areas of agreement and disagreement among groups of practitioners within and across court systems. In this context, I believe that the overall patterns which emerge may be put forward with somewhat more confidence than the lowest return rates might suggest, since the data often reveal consistent patterns across groups with both higher and lower response rates.Google Scholar

21 Previous studies exist on each of the court systems under examination here, although some are more complete and current than others. There are no general studies of the Bronx per se, but several studies are available that describe criminal justice in New York City. See Vera Institute of Justice, Felony Arrests: Their Prosecution and Disposition in New York City's Courts (New York: Vera Institute of Justice, 1977). For an excellent case study of a murder case prosecuted in the Bronx, see Steven Phillips, No Heroes, No Villains (New York: Vintage Books, 1977). An informative and comparatively recent description of Detroit Recorder's Court can be found in James Eisenstein & Herbert Jacob, Felony Justice: An Organizational Analysis of Criminal Courts ch. 6 (Boston: Little, Brown & Co., 1977). See also Milton Heumann & Colin Loftin, Mandatory Sentencing and the Abolition of Plea Bargaining: The Michigan Felony Firearm Statute, 13 Law & Soc'y Rev. 393 (1979); David Neubauer et al., Managing the Pace of Justice: An Evaluation of LEAA's Delay Reduction Program chs. 11–12 (Washington, D.C.: Government Printing Office, 1981). The Pittsburgh criminal courts are best described in Martin Levin, Urban Politics and the Criminal Courts chs. 2–4 (Chicago: University of Chicago Press, 1977). There is no comprehensive description of the court of Miami, although useful background information can be obtained from a study of a plea bargaining innovation there; see Anne Heinz & Wayne Kerstetter, Pretrial Settlement Conference: Evaluation of a Reform in Plea Bargaining, 13 Law & Soc'y Rev. 349 (1979).Google Scholar

22 The “traditional” and the “professional” models of city government are discussed in Edward Banfield & James Q. Wilson, City Politics (Cambridge: Harvard University Press, 1963).Google Scholar

23 See appendix B. There is evidence to suggest that nonjury, or “waiver,” trials are on the increase in Detroit. See Heumann & Loftin, supra note 21.Google Scholar

24 Portions of this section were published in Thomas Church, Who Controls the Pace of Litigation in Urban Trial Courts 65 Judicature 76 (1981).Google Scholar

25 See Zeisel, Hans, Harry Kalven, & B. Buchholz, Delay in the Court (Boston: Little, Brown & Co., 1959); Maurice Rosenberg, Court Congestion: Status, Causes, and Proposed Remedies, in H. Jones, ed., The Courts, The Public and the Law Explosion 38–46 (Englewood Cliffs, N.J.: Prentice-Hall, 1965); L. R. Katz, L. P. Litwin, & R. H. Bamberger, Justice Is the Crime: Pretrial Delay in Felony Cases 75 (Cleveland: Case Western Reserve University Press, 1972).Google Scholar

26 One of the most systematic evaluation efforts was conducted by the American Judicature Society: see Neubauer et al., supra note 21; this research is summarized in Ryan, John Paul et al., Analyzing Court Delay Reduction Programs: Why Do Some Succeed 65 Judicature 58 (1981). See also Larry Sipes et al., Managing to Reduce Delay (Williamsburg, Va.: National Center for State Courts, 1980). For specific studies of settlement programs, see Maurice Rosenberg, The Pretrial Conference and Effective Justice (New York: Columbia University Press, 1964); Raymond Nimmer, A Slightly Movable Object: A Case Study in Judicial Reform in the Criminal Justice Process: The Omnibus Hearing, 48 Den. L.J. 206 (1976). Research on the impact of adding new judges is more fragmentary. A summary of this work can be found in Church, supra note 2, at 24–31. See also Thomas Church et al., Pretrial Delay: A Review and Bibliography 19–25 (Williamsburg, Va.: National Center for State Courts, 1978).Google Scholar

27 See Church, Thomas W., The Old and the New Conventional Wisdom of Court Delay, 7 Just. Sys. J. 413 (1982).Google Scholar

28 See R. W. Gillespie, Judicial Productivity and Court Delay: An Exploratory Analysis of the Federal District Courts (Washington, D.C.: Government Printing Office, 1977); Steven Flanders, Case Management and Court Management in the United States District Courts (Washington, D.C.: Federal Judicial Center, 1977).Google Scholar

29 Church, supra note 2, at 54.Google Scholar

30 But compare Grossman et al., supra note 12.Google Scholar

31 This calculation in the analysis that follows is based on the number of days from arrest to either guilty plea, trial verdict, or dismissal.Google Scholar

32 Thorsten Sellin & Marvin Wolfgang, The Measurement of Delinquency (New York: Wiley Press, 1964). The use of this statistical construct was necessary because of insurmountable problems of interpretation and cross-jurisdictional comparison associated with using the only feasible alternative indicator of seriousness, the legal crime charged. The Sellin-Wolfgang instrument simplifies the complex reality of criminal incidents, but not nearly so much as the criminal-charge measure would. Furthermore, validity of the scale as a measure of subjective seriousness has been established in several independent studies. See Roth, Jeffrey, Prosecutor Perceptions of Crime Seriousness, 69 J. Crim. L. & Criminology 232 (1978); Charles Wellford & Michael Wiatrowski, On the Measurement of Delinquency, 66 J. Crim. L. & Criminology 175 (1975).Google Scholar

33 The dividing lines between categories are necessarily somewhat arbitrary. They were made with two goals in mind: (1) to define the categories in such a way that enough cases were present in each to permit reasonably reliable statistical analysis, and (2) to make the dividing points comport with common sense breaking points of seriousness (use of a weapon, e.g., or the presence of injuries requiring medical treatment). These goals conflicted somewhat. The resulting categorization represents the best compromise obtainable.Google Scholar

34 The cases were not broken down by whether or not the defendants had prior criminal records for two reasons: first, preliminary analysis of the data showed prior record to have no clear relationship to disposition time; second, the cell sizes produced by further subdividing the cases would be uncomfortably small for reliance on the median. No dismissed cases are included in these data because Sellin-Wolfgang scores were not computed on them.Google Scholar

35 It would also be desirable to calculate similar statistics for cases disposed by trial, but the samples included an insufficient number of trials for the medians to be reliable.Google Scholar

36 Similarly, jury trial was chosen as the dispositional alternative likely to raise the least ambiguity for respondents.Google Scholar

37 The mean was used in this figure rather than the median because it is somewhat more stable when the sample size is small. Unlike the actual case data, there were few abnormally long disposition times indicated, making use of the median less crucial.Google Scholar

38 The 12 cases were divided into two seriousness categories. Less serious cases were defined as those involving (1) defendants without prior records charged with an offense having a Sellin-Wolfgang score of less than 12, or (2) defendants with a prior record charged with an offense having a Sellin-Wolfgang score of less than 4. This dividing line was based on the rough agreement of respondents in all four cities regarding whether a term of incarceration would be an appropriate sentence if the defendant pled guilty: in cases labeled more serious, most respondents preferred a sentence of incarceration; less serious cases were those in which a non-incarceratory sentence was preferred. Use of four seriousness categories analogous to those used for the actual case samples was not feasible because of the small number of cases involved.Google Scholar

39 It should be pointed out that these “curves” connect three points which represent nominal-level variables: no continuum is implied by the fact that the values for prosecutor, defense, and judge responses in the same city are connected by a continuous line. After much experimentation, it became apparent that this somewhat unorthodox use of figures presented the clearest visual representation of these data.Google Scholar

40 This similarity is even more pronounced when defense attorneys and prosecutors are considered alone. Why judges in these cities tend to hold norms supportive of a slower pace of litigation than prosecutors and defense attorneys is something of a puzzle. The implication of this finding for delay-reduction programs based on judicial intervention, however, should be obvious.Google Scholar

41 This anomaly may be due in part to the fact that the Miami case sample, composed of 1976 dispositions, predated by one year a substantial effort to accelerate the pace of their criminal cases. Attitudinal data were gathered in 1978.Google Scholar

42 The weighted average is the average of the means for each of the three participant types in each city rather than simply the average of all responses in each city. This was done to adjust for the unequal number of respondents in different categories.Google Scholar

43 See Blalock, Herbert M., Social Statistics 73–74 (New York: McGraw-Hill, 1960).Google Scholar

44 Church, supra note 2, at 31–35.Google Scholar

45 See, e.g., Abraham Blumberg, Criminal Justice (Chicago: Quadrangle Books, 1967).Google Scholar

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47 Church, supra note 2, at 34. A felony adjudication was defined as a case filed as a felony that was disposed by either a guilty plea, trial, or some form of pretrial diversion. Id. at 33–35.Google Scholar

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54 Minor offenses such as vagrancy or drunk and disorderly conduct were not counted in determining whether a defendant had a prior record. See table 3 and accompanying text for a description of the seriousness categorization used.Google Scholar

55 That the data are less clearly defined in such cases may be due to two factors: First, this category is the only one that is “open-ended.” While each of the other three classes contains cases with a range of only 3 to 5 points on the Sellin-Wolfgang scale, this final category encompasses substantial differences in seriousness—cases range in seriousness in this category from an index of 12 to as high as 38 (see table 3). Furthermore, this category contains all the homicides in the samples, crimes that can differ substantially in subjective seriousness depending on such ephemeral factors as intention and premeditation. The Sellin-Wolfgang scale does not take such subtleties into account—the death of a victim is counted the same regardless of the circumstances surrounding it. For these reasons this category is likely to contain a very diverse group of cases and the anomalous results in it should not be especially surprising.Google Scholar

56 Heumann, supra note 8, esp. at chs. 4–6.Google Scholar

57 As in the previous section, less serious cases were defined as those involving (1) defendants without prior records and a Sellin-Wolfgang score of less than 12, or (2) defendants with a prior record and a Sellin-Wolfgang score of less than 4.Google Scholar

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59 See also Casper, supra note 50, esp. at chs. 3, 4.Google Scholar

60 For an excellent summary and evaluation of sentencing research, see Alfred Blumstein et al., eds., Research on Sentencing: The Search for Reform, 2 vols. (Washington, D.C.: National Academy Press, 1983).Google Scholar

61 For general reviews of these studies see Hagan, John, Extra-legal Attributes and Criminal Sentencing: An Assessment of a Sociological Viewpoint, 8 Law & Soc'y Rev. 357 (1974); Gibson, James, Race as a Determinant of Criminal Sentences: A Methodological Critique and a Case Study, 12 Law & Soc'y Rev. 455 (1978).CrossRefGoogle Scholar

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63 Two exceptions: Eisenstein & Jacob, supra note 21; Levin, supra note 21.Google Scholar

64 One exception: Levin, supra note 21.Google Scholar

65 See Eisenstein & Jacob, supra note 21, at ch. 10.Google Scholar

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69 Eisenstein & Jacob, supra note 21, at 274–87. Eisenstein & Jacob include “Identity of Courtroom” among their variables used to explain sentence, but in one of their three courts, this variable identified only the judge (since both district attorneys and defense attorneys moved from courtroom to courtroom) and in a second court, this variable identified a judge-prosecutor “team” but not the defense attorney.Google Scholar

70 A commonly used term for these generally agreed-upon sentences is “going rates.” See Heumann, supra note 8, at 75–78. See also Sudnow, supra note 9, at 255.Google Scholar

71 See table 3.Google Scholar

72 In three of the four courts this adjustment factor varies between.75 and.83 of the minimum sentence imposed in the typical x- to y-year sentence. This adjustment thus did not appreciably alter the relationships existing between cities in the unadjusted sentences. New York's sentencing procedures in 1978 involved a more complex process. Indeterminate sentences (expressed formally as 0 to X years) were adjusted to one-third the maximum but at least one year—-a state policy; defendants sentenced with a judge-imposed minimum always serve at least that minimum sentence, plus (if our Bronx respondents are correct) about 10% of the minimum.Google Scholar

73 These data are presented in categorical form (rather than by use of average sentences) because of the tentative nature of the adjusted sentences and the presence of several small cells. I am reasonably confident about whether a particular defendant will remain more than three (fig. 13) or five (fig. 14) years in prison in a particular state; the exact length of incarceration, especially in the longer terms likely to have a large effect on the mean, is considerably less clear.Google Scholar

74 These figures are adjusted for parole and “good time” practices. See note 72 and accompanying text.Google Scholar

75 A possible explanation for this anomaly lies in the extraordinary screening of cases in the Bronx Criminal Court prior to filing in the court of general jurisdiction. Generally, if there is any real chance of a nonprison sentence, the case is disposed below as a misdemeanor and the defendant is not indicted. The Sellin-Wolfgang seriousness data and prior record information were collected in part to correct for differences in screening practices, but it may be that the uniquely intense screening process in the Bronx skews the sample toward more serious cases in a way that is not uncovered by the Sellin-Wolfgang index.Google Scholar

76 The tables setting out agreement for each case, analogous to tables 7 and 8, were omitted in the interest of conserving space. They are available from the author.Google Scholar

77 Blumberg, supra note 45.Google Scholar

78 See Church, Thomas Jr., Plea Bargains, Concessions, and the Courts: Analysis of a Quasi Experiment, 10 Law & Soc'y Rev. 377 (1976); Note, The Elimination of Plea Bargaining in Black Hawk County: A Case Study, 61 Iowa L. Rev. 1053 (1975); Heumann & Loftin, supra note 21. Cf. Michael Rubenstein & Teresa White, Alaska's Ban on Plea Bargaining, 13 Law & Soc'y Rev. 367 (1979).Google Scholar

79 See Church, , supra note 2; Nimmer, supra note 26. Cf. Heinz & Kerstetter, supra note 21.Google Scholar

80 See Association of the Bar of the City of New York, The Nation's Toughest Drug Law: Evaluating the New York Experience (Washington, D.C.: Drug Abuse Council, Inc., 1977); James A. Beha II, “And Nobody Can Get You Out”: The Impact of a Mandatory Prison Sentence for the Illegal Carrying of a Firearm on the Use of Firearms and on the Administration of Criminal Justice in Boston (pts. 1 & 2), 57 B.U.L. Rev. 96, 290 (1977); Heumann & Loftin, supra note 21. See, generally, Albert Alschuler, Sentencing Reform and Prosecutorial Power: A Critique of Recent Proposals for ‘Fixed’ and ‘Presumptive’ Sentencing, 126 U. Pa. L. Rev. 550 (1978).Google Scholar

81 For a general discussion of the problems encountered by reform in the criminal justice system, see Raymond T. Nimmer, The Nature of System Change: Reform Impact in the Criminal Courts (Chicago: American Bar Foundation, 1978); Malcolm Feeley, Court Reform on Trial (New York: Basic Books, 1983).Google Scholar

82 Quoted in Church, supra note 78, at 400.Google Scholar

83 Nimmer, supra note 26.Google Scholar

84 Studies adopting this organizational perspective to one degree or another include Eisenstein & Jacob, supra note 21; Roy Flemming, Allocating Freedom and Punishment: Pretrial Release Decisions in Detroit and Baltimore (New York: Longman, 1980); Heumann, supra note 8; Peter Nardulli, The Courtroom Elite: An Organizational Perspective on Criminal Justice (Cambridge, Mass.: Ballinger, 1978); Mather, supra note 53.Google Scholar

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86 See Alschuler's, Albert series of articles on plea bargaining, esp. The Prosecutor's Role in Plea Bargaining, 36 U. Chi. L. Rev. 50 (1968); National Advisory Commission on Criminal Justice Standards and Goals, Task Force Report: Courts (Washington, D.C.: Government Printing Office, 1973); Kipnis, Kenneth, Criminal Justice and the Negotiated Plea, 86 Ethics 93 (1976).CrossRefGoogle Scholar

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88 See Callan, Sam W., An Experience in Justice Without Plea Negotiation, 13 Law & Soc'y Rev. 327 (1979); Rubenstein & White, supra note 78, at 367; Heumann & Loftin, supra note 21, at 393; Church, supra note 78, at 377; Raymond Nimmer & Patricia Krauthaus, Plea Bargaining: Reform in Two Cities supra note 78, at 367; Heumann & Loftin, supra note 21, at 393; Church, supra note 78, at 377; Nimmer, Raymond & Krauthaus, Patricia, Plea Bargaining: Reform in Two Cities, 3 Just. Sys. J. 6 (1977).Google Scholar

89 This suggestion is consistent with the findings of recent evaluations of sentencing reforms. See Blumstein et al., supra note 60.Google Scholar