Vol. 3, No. 11 (November, 1993)
THE CRAFT OF JUSTICE: POLITICS AND WORK IN CRIMINAL COURT
COMMUNITIES by Roy B. Flemming, Peter F. Nardulli, and James
Eisenstein. Philadelphia: University of Pennsylvania Press, 1992.
217 pp.
Reviewed by Alissa Pollitz Worden, School of Criminal Justice,
University at Albany, SUNY.
In writing the third book to emerge from a prolific research
project, the authors of THE CRAFT OF JUSTICE faced the somewhat
enviable, and somewhat intimidating, task of building upon a
widely read stream of publications to offer new and provocative
insights into the criminal adjudication process. According to the
authors, the three books -- THE CONTOURS OF JUSTICE (1987), THE
TENOR OF JUSTICE (19880, and THE CRAFT OF JUSTICE -- were planned
as a trilogy, as a series that, employing the same data base and
observational research, would explore and develop three sets of
questions about the operations of criminal courts in middle-sized
communities. Hence the strengths and weaknesses of this
contribution should be assessed against three criteria: First, to
what extent does this book synthesize, build upon and develop
relevant concepts that emerged from the first two works, as well
as the numerous studies generated by this project that have been
reported in article form? Second, what does this work contribute
more generally to the literature on criminal courts? Third, to
what extent do the authors' analyses and conclusions define and
clarify a research agenda for others interested in studying
judges, prosecutors, and defense lawyers?
The focus of Flemming, Nardulli, and Eisenstein's research in THE
CRAFT OF JUSTICE is "the learned and adaptive knowledge that
guides practitioners in getting things done within the
courthouse" (p. 4). This statement of research purpose, as
well as the qualitative methodological strategy, is strongly
reminiscent of Milton Heumann's classic study of Connecticut
court actors. While Heumann's (1977) study concentrated on the
adaptation of new judges, prosecutors, and lawyers to the norms
and practices of criminal courts, Flemming et al focus their
efforts on describing and, to some extent, accounting for
variation in the strategies and practices that judges,
prosecutors, and defense lawyers adopt as they pursue personal
and organizational goals.
The authors derive several broad conclusions, some of which are
quite predictable (although none the less valuable for being
illustrated again) and some of which are unexpected. Their
delineation of judicial objectives, and of the nature of bench
politics, is consistent with other studies of local legal
cultures. They conclude, reasonably, that judges' willingness to
work collegially, or at least under conditions of sincere and
reasoned disagreement about policy issues, determines the degree
to which judges collectively retain influence over criminal
adjudication practices in the face of prosecutors' considerable
political and discretionary power. Similarly, the discussion of
defense lawyers' motivations and incentives, and of the politics
of indigent defense, is by now familiar, but the authors do an
admirable job of illustrating the dilemmas faced by lawyers as
they trade off the business needs of their practices with their
professional priorities.
Because prosecutors are probably the least scrutinized actors in
the criminal courts, the discussion of their motives may be one
of the strongest contributions of the study. Flemming et al
maintain that prosecutors purposefully organize their offices and
deploy their resources in order to conserve (or increase) their
status vis a vis judges and lawyers; further, they conclude that
policies and practices can often be interpreted as expressions of
the chief's political views. They also illustrate the
often-observed response of deputies to overly-zealous efforts to
constrain their behavior to policy. Power and status within the
courthouse often comes at the price of discontent and even policy
circumvention among subordinates.
These broad themes are illustrated as the authors let the judges,
prosecutors, and
Page 114 follows:
lawyers of nine courts speak for themselves. While the first book
of the series, THE CONTOURS OF JUSTICE, examined the legal
cultures of these nine towns, adopting a somewhat similar
expository approach, and while THE TENOR OF JUSTICE
systematically examined the aggregate output of these crafts,
plea agreements and sentences, this study extracts each set of
actors from their communities and from their collective products,
concentrating instead on the commonalities and differences in the
crafts of prosecuting, judging, and defending. This approach
yields more detail and insight into the strategies and motives of
actors, although a reader unfamiliar with the earlier works might
have difficulty interpreting the varying contexts in which these
strategies and motives develop. Hence one standard against which
to evaluate this work is the value it adds to what has already
emerged from this prolific research effort. However, THE CRAFT OF
JUSTICE could also be thought of as the most recent link in a
rather impressive chain of case studies, some comparative and
some not, of courthouse norms and practices, and hence should be
evaluated in terms of what we have already learned from the case
studies that emerged in the late 1970s. Finally, this work could
be subjected to what might be called the "graduate syllabus
test": does it sufficiently skillfully knit together
existing and new knowledge to create a design for future
research, thereby constituting the sort of contribution that
should be read and digested by young scholars entering the field?
THE CRAFT OF JUSTICE usefully pulls together some of the authors'
observations and conclusions that have been published elsewhere
in contexts less directly focused on examining individual
attitudes toward court work. In this respect, it is a valuable
resource for the study of court actors; by focusing explicitly on
the craft of court work, the authors succeed in highlighting
themes that are subtle undertones in previous publications.
However, the authors' choices about what to include and emphasize
are puzzling in three respects.
First, some very interesting and provocative conclusions of
preceding work are scarcely visible in this book. An important
example occurs in the chapters on defense lawyers, where the
authors' previously published work on lawyers' differential
perceptions of public and private clients (Flemming, 1986) is
cited but not adequately reproduced in the context of the broader
discussion of incentives and motivations.
Second, the authors seem to rely heavily on the unjustifiable
assumption that readers have read (or will read) the other
volumes in the series. For instance, this assumption is implicit
in the discussions of other actors' perceptions of attorneys'
competence, discussions which skim the surface of the methodology
as well as the more substantive discussion of the relevance of
these perceptions developed in other studies (Nardulli et al,
1984). More generally, the book offers too little background
information on the communities, and too little summary of the
substantive findings of previous work, to allow it to be a
"stand-alone" contribution; one's ability to evaluate
its contribution depends a bit too much on one's familiarity with
preceding publications.
Third, although THE CRAFT OF JUSTICE echoes some of the themes
that emerge from discussions of attitudes and practices in THE
TENOR OF JUSTICE, the conceptual and semantic linkages are less
developed than one might expect. For instance, the earlier book
developed, in a descriptive way, a conceptualization of
"work orientations" that presumably cuts across
courthouse role and that is comprised of attitudes toward
personnel, the use of discretion, and the value of innovation and
technology. This conceptualization yielded three
characterizations: orientations that focus on (1) formal and
structural elements of work, (2) efficiency considerations, and
(3) pragmatic concerns. While these orientations clearly have
greatest applicability to the work of prosecutors, they are
potentially useful heuristics in understanding the behavior of
judges and public defenders as well. One might have expected THE
CRAFT OF JUSTICE to exploit this conceptualization explicitly,
subjecting it to scrutiny in order to
Page 115 follows:
assess its empirical value and its usefulness for future studies
of court actors.
However, the more recent book, while echoing some of the themes
inherent in these characterizations, nonetheless provides a
looser and less structured description of attitudes and behavior.
The conceptualization of craft focuses instead on career
building, organizational leadership, courtroom success, and
building networks. These are important dimensions of work, and
hence one wishes that the authors' hypotheses about their
relationships with broader attitudinal orientations had been more
fully developed. That they were not may be the consequence of the
authors' realization that the neatness of the original work
orientation typology does not really fit the realities of
courthouse motives, a conclusion that would not surprise many
students of criminal adjudication. All the same, a higher degree
of conceptual continuity would have been valuable for those
readers who have familiarized themselves with other products of
this research effort. In this vein, the authors' frequent cites
to their own publications are a bit frustrating; a more
intellectually satisfying work would have encompassed as well as
expanded upon what the authors had already concluded from their
immersion in these nine courthouses, rather than leaving the
reader to recall and synthesize these diverse studies on his or
her own.
As a contribution to the broader literature on criminal courts,
this book (and its companions) constitute a valuable addition for
several reasons. First, it departs from much of the literature by
examining middle-sized courts (those in counties with on average
about 500,000 residents), rather than highly urbanized
jurisdictions whose complexity and crime problems may severely
constrain their generalizability to other courts.
Second, the authors not surprisingly explicitly build upon
concepts developed fifteen years ago in James Eisenstein's and
Herbert Jacob's classic, FELONY JUSTICE (1977), thus generating
valuable but surprisingly uncommon continuity in the theoretical
maturation of organizational models of court decision making.
Particularly in its attention to the administrative dilemmas that
arise in sponsoring organizations (especially in prosecutors'
offices), in its discussion of the significance of seemingly
mundane issues such as calendaring and case assignment, and in
its explicit recognition of the power distributions across the
three sets of actors, THE CRAFT OF JUSTICE sustains a set of
important research questions that have been too seldom addressed
by recent researchers more intrigued by more highly visible
policy issues and by methodological innovations in aggregate
sentencing studies. The book would be an even more compelling
contribution had its authors been able to fully synthesize data
on court actors' behavior with their candid but qualitative self-
descriptions; and in addressing matters such as adaptation,
career success, and working style, it would have been desirable
to draw upon case data to profile the performance of these
actors. However, such a synthesis of qualitative and quantitative
gleanings may have been practically unfeasible.
Finally, one must ask whether this book not only pulls together
our accumulated knowledge about the people who process criminal
cases, but also whether, through challenge or reification of
existing understandings, it helps to clarify a set of research
questions for another generation of court researchers. It falls a
bit short on the first standard, although, at least implicitly,
it addresses the second. THE CRAFT OF JUSTICE does not dwell long
on the findings and contradictions in previous research, and is
instead content to refer readers to appropriate citations; this
limits its value as a definitive work on court actors insofar as
it limits its accountability to existing research. Revealingly,
the only list of references (apart from the index) in the book is
a list of publications generated by the authors themselves.
However, by echoing critically important and understudied themes
in the study of local legal culture, the authors help to define a
research agenda for scholars interested in building a systematic
empirical foundation around the
Page 116 follows:
hypotheses generated by case study research. A few of these
themes or issues remain puzzling or incompletely stated to
readers. For instance, although Flemming et al frequently allude
to the suburban, blue-collar, or economically free-standing
nature of the communities they study, the significance of
communities' political and economic profiles for adjudication is
only faintly sketched. However, political scientists interested
in the impact of community culture on political and legal culture
will welcome the acknowledgement of these potential political
linkages. Students who do not altogether concur with the authors'
subtle acceptance of the inevitability as well as the social
value of non-adversarial practices will nonetheless appreciate
the book's emphasis on power relationships as determinants of
courthouse norms. Scholars who do not accept one-dimensional
portraits of prosecutors as bureaucrats will value the insights
into prosecutors' political motivations, even in the absence of
meaningful public pressure.
In summary, this book is a useful contribution. It neither
redefines the field nor writes the final chapter on courthouse
actors; indeed, the authors could hardly have intended that. For
the purposes of securing a permanent and distinguished place in
library of criminal court scholars and students, the authors
might have been somewhat better served to have synthesized their
diverse findings into a single volume, not only for the practical
purpose of economy and conciseness but also for the intellectual
purpose of imposing conceptual consistency and continuity on what
is essentially a very ambitious study of local legal cultures.
The risk in such an approach to dissemination, however, is the
loss of texture and detail that is one of the strongest assets of
THE CRAFT OF JUSTICE.
References
Eisenstein, James and Herbert Jacob. 1977. FELONY JUSTICE: AN
ORGANIZATIONAL ANALYSIS OF CRIMINAL COURTS. Boston: Little, Brown
& Co.
Eisenstein, James, Roy B. Flemming and Peter Nardulli. 1987. THE
CONTOURS OF JUSTICE: COMMUNITIES AND THEIR COURTS. Boston:
Little, Brown & Co.
Roy B. Flemming. 1986. Client games: defense attorney
perspectives on their relations with criminal clients. AMERICAN
BAR FOUNDATION RESEARCH JOURNAL 1986: 253.
Heumann, Milton. 1977. PLEA BARGAINING: THE EXPERIENCES OF
PROSECUTORS, JUDGES, AND DEFENSE ATTORNEYS. Chicago: University
of Chicago Press.
Nardulli, Peter F., Roy B. Flemming, and James Eisenstein. 1984.
Unraveling the complexities of decision making in face-to-face
groups: a contextual analysis of plea-bargained sentences.
AMERICAN POLITICAL SCIENCE REVIEW 78: 912.
Nardulli, Peter F., James Eisenstein, and Roy B. Flemming. 1988.
THE TENOR OF JUSTICE: CRIMINAL COURTS AND THE GUILTY PLEA
PROCESS. Urbana: University of Illinois Press.
Copyright 1993