9901-41b9/78/6903-0270S02.00/0
TilE
JOL'RXAL
OF
CRIMINAL
LAW
&
CRIMINOLoGY
Vol.
69,
No.
3
Copyright
@
1978
by
Northwestern
University
School
of
Law
Pnnttdin
US.A.
CRIMINAL
LAW
LOWER
CRIMINAL
COURTS:
THE
PERILS
OF
PROCEDURE*
JOHN
L.
BARKAI**
Impartial
administration
of
the
law
cannot
make
inequitable
laws
fair.t
Nevertheless,
the
general
*
The
author
wishes
to
thank
Anthony
Chase,
a
third-
year
student
at
the
Wayne
State
University
Law
School,
who
not
only
provided
valuable
assistance
and
direction
in
the
preparation
of
this article,
but
who
also
has
become
a
close
personal
friend.
I
would
also
like
to
note
that
as
a
compromise
between
the
sometimes
competing
stylistic
goals
of
clarity and
the
absence
of
sexism,
I
will
use
the
masculine
gender
for all
personal
pronouns
while
recog-
nizing
that
the
feminine
gender
is
equally
appropriate.
**
Visiting
Associate
Professor
of
Law,
University
of
Hawaii
Law
School, on leave
from
Wayne
State
Univer-
sity Law
School.
B.B.A.
1967,
M.B.A.
1968,
J.D.
1971,
University
of
Michigan.
I
American
legal
theorist
William
Seagle makes
this
point
quite
clearly
when
he
recalls
Anatole
France's
familiar
aphorism.
The
ideal
ofjudicial
impartiality
requires alone
that
whatever
laws
there
are
be
administered
in
an
im-
partial
manner.
It
does
not
require
that
the
laws
themselves
be
impartial.
As
Anatole
France
ob-
served,
the
law
with
magnificent
impartiality
forbids
the
rich
and
the
poor
alike
to
steal
a
loaf
of
bread,
or
to
sleep
under
the
bridges.
Thus
the impartiality
of
the
law
simply
masks
the
partiality
of
the
laws,
which
reflect
the
configurations
of
power
in
the state,
or are
entirely
composed
of
political
ingredients.
The
impartial
administration
of
an
unjust
law
can
no
more
make
it
a
just
law
than
the
efficient
enforce-
ment
of
a
bad
law
can
make
it
a
good law.
W.
Si
A;i.E,
L-xw:
THE
SCIENCE
OF
INEFFICIENCY
14
(1952).
Scagle
is
quick
to
observe
the
ironic
character
of
courtroom
procedures
designed
to convey
an
impression
of
fairness while
the
laws
administered
in
those
court-
rooms
clearly
favor
different
social
groups
and
classes
and
inevitably
bear
the
imprint
of
the
structure
of
power
in
societ,
.
Judicial
impartiality
achieves a
kind
of
fairness
which
is
obviously
untroubled
by
drastic inequity
built
into
the content
of
the
laws
themselves.
Citing
Griffin
v.
Illinois,
351
U.S.
12
(1956),
the
Su-
preme
Court
ruled
in
1963
that
state
criminal
procedure
denying
benefit
of
counsel
for
an
indigent's
one
and
only
appeal
as
of
right
violated
the
fourteenth
amendment,
arguing
that
"there
can
be
no
equal
justic
where
the
kind
of
an
appeal
a
man
enjoys
'depends
on
the
amount
of
money
he
has."'
Douglas
v.
California,
372
U.S.
353,
355
(19631.
Thus
by
establishing an
indigent's
right
to counsel
on
appeal,
the Court
presumably
enhanced
the
impartial
administration
of
justice.
consensus
2
of
those who
write
task
force
reports
or
otherwise
contribute
to
the
legal
literature
on
crim-
inal
justice,
3
is
that
the
lower
criminal
courts
in
Justice
Harlan,
however,
was
not
fooled.
In
dissent
he
pointed
out
that:
The
States,
of
course,
are
prohibited
by
the
Equal
Protection
Clause
from
discriminating
between
'rich'
and
'poor'
as
such
in
the
formulation
and
application
of
their
laws.
But
it
is
a
far different
thing
to
suggest
that
this provision
prevents
the
State
from
adopting
a law
of
general
applicability
that
may
affect
the
poor
more
harshly
than
it does
the
rich,
or...
impose
a
standard
fine
for
criminal
violations,
or
to establish
minimum
bail
for
various categories
of
offenses.
Nor
could
it
be
contended
that
the
State
may
not
classify
as
crimes
acts
which
the
poor are
more
likely
to
commit
than
are
the
rich
... .
[Tihe
Equal
Protection Clause
does
not
impose
on
the
States
'an
affirmative
duty
to lift
the
handicaps
flowing
from
differences
in
economic
circumstances.'
To
so
construe
it
would
be
to
read into
the
Constitution
a
philosophy
of
leveling
that
would
be
foreign
to
many
of our
basic
concepts
of
the
proper
relations
between
government
and
society.
Id.
at
361-62
[latter
emphasis
added].
Justice
Harlan
evidently
did
not
wish
to
see
the
inequity
of
law
once
again
masked
by an
impartial
criminal
procedure.
2
See,
e.g.,
Oliphant,
Reflections
on
the
Lower
Court
System;
The
Development
of
a
Unique
Clinical
Misdemeanor
and
a
Public
Defender
Program,
57
MINN.
L.
REV.
545
(1973).
Oliphant
notes
that:
Observers
of
the
lower
courts
throughout
this coun-
try
agree
that
the
lower
courts
are
in
miserable
condition
....
The
appalling
conditions
have
been
the
subject
of
numerous
investigations,
criticisms
and
dismay
by
government
commissions
and
citizen
task
forces.
For
the
most
part,
the
findings
and
recommendations
of
investigators
and
critics
have
lone
unheeded.
These
critics
of
the
criminal
process,
however,
have
not
been
the
only
ones
to
express
their
feelings
on
the
subject
of
criminal
justice.
See
President
Hoover's
address
at
the annual
luncheon
of
the
Associated
Press
(April
22,
1929):
Every
student
of
our
law
enforcement
mechanism
knows
full
well
that
it
is
in
need
of
vigorous
reorga-
nization;
that
its
procedure
unduly
favors
the
crim-
inal;
that
our
judiciary
needs
to be
strengthened;
that
the
method
of
assembling
our
juries
needs
re-
vision;
that
justice
must
be
more
swift
and
sure.
In
our
desire
to be merciful
the
pendulum
has
swung
PERILS
OF
PROCEDURE
this
country
have
failed to
create
even
the
illusion
4
of
fairness.
5
in
favor
of
the
prisoner
and
far
away
from
the
protection
of
society.
NATIONAL COMMISSION
ON
LAW
OBSERVANCE
AND
EN-
FORCEMENI
(WICKERSHAM
COMMISSION),
REPORT
ON
CRIMINAL
PROCEDURE
1
(1931).
More
recently,
former
Governor
Reagan
expressed
his
feelings
on
the
subject.
Reagan
Asserts
Law
Aids
"The
Criminal
Defendant,"
N.Y.
Times,
May
27,
1976,
at
24:
In
his
sharpest
comments
of
the
campaign
on
the
law-and-order
issue,
Ronald
Reagan
said
today
that
he would
support
legislation
that
would change
"laws,
precedents,
procedures
and
rules
of
prosecu-
tion
that
are
stacked
on
behalf
of
the
criminal
defendant."
The
challenger
for
the
Republican
Pres-
idential nomination
said
that
the
criminal
justice
system
had
failed
the
American
public
by
imposing
rules
that
sheltered
criminals
from
prosecution...."If
you
want
to
know why
crime
proliferates
in
this
nation,
don't
look
at
the
statistics
on
income
and
wealth;
look
at
statistics
on
arrests, prosecutions,
conviction
and
prison
population."
"
Fair
law
is
really
equivalent
to
equitable
law
which
is
not
composed
of
political
ingredients.
See
note
I
supra.
But
the
present
law,
which
is
unfair,
can be
made
to
appear
fair,
and
hence
can
give
the
illusion
of
fairness,
by
being administered impartially.
The
administrative
ap-
paratus
which could
at
least
make
the
law
seem
fair
has
not
effectively
performed
that
function
in
the
American
lower
criminal courts.
Because
these
courts
have
failed
to
administer adequately
and
impartially unjust
laws,
the
lower
criminal
courts do
not
present
even
the
illusion
of
fairness.
The
importance
of
illusions
is
generally
underrated.
M.
FERRO,
THE
GREAT
WAR,
1914-1918
xi
(1973
Eng-
lish
ed.):
In
1914
they
had
no
doubts
that
the
war
would
be
short,
that
they
would
be
home
by
Christmas
crowned
with
victory.
In
Paris,
London
and
Berlin
they
left
singing
and
exuberant,
'with
flowers
on
their
rifles.'
This
elation
is
a
factor
in
the
origins
of
the
war
and
of
its
after-taste,
and
deserves
as
much
stress
as
the
more
strictly economic
or
political
causes.
s
"Fairness"
can have
a
considerable
variety
of
refer-
rents
within
the structure
of
the
criminal
justice
system.
For example:
(1)
It
can
describe
the
proper
relationship
between
the
criminal
defendant
and
the
State.
See,
e.g.,
Justice
Car-
dozo's
majority
opinion
in
Snyder
v.
Massachusetts,
291
U.S.
97,
122
(1934):
The
law,
as
we
have
seen,
is
sedulous
in
maintaining
for
a defendant
charged
with
crime
whatever
forms
of
procedure
are
of
the
essence
of
an
opportunity
to
defend.
Privileges
so
fundamental
as
to
be
inherent
in
every
concept
of
a
fair
trial
that
could
be accept-
able
to
the
thought
of
reasonable
men
will
be
kept
inviolate
and
inviolable,
however
crushing may
be
the
pressure
of
incriminating
proof.
But
justice,
though due
to
the
accused,
is
due
to
the
accuser
also.
The
concept
of
fairness
must not
be
strained
till it
is
narrowed to
a
filament.
We
are
to
keep
the
balance
true.
Despite
over
half
a
century
of
criticism
and
proposals,
remarkably
little
in
the
way
of
change
(2)
It
can
describe
the
proper
balance
between
the
State
and the
general
class
of
criminal defendants
as
a
whole.
See,
e.g.,
Goldstein,
The
State
and
the
Accused-
Balance
of
Advantage
in Criminal
Procedure,
69
YALE
LJ.
1149
(1960):
In
criminal
cases,
the
accused
may
get
relief,
not
so
much
out
of
concern
for
him
or
for
the
'truth,'
but
because
he
is
strategically
located,
and
motivated,
to
call
the attention
of
the
courts to
excesses
in
the
administration
of
criminal
justice.
The
underlying
premise
is
that
of
a
social
utilitarianism.
If
the
criminal
goes free
in
order
to
serve
a
larger
and
more
important
end,
then
social
justice
is
done,
even
if
individual
justice
is
not.
(3)
It
can
describe
the
proper
balance
between
the
procedural
safeguards
afforded
one
group
of
criminal
defendants
as
against
another
group
of
criminal
defend-
ants.
See
Wald,
Poverty
and
Criminal
Justice,
THE
PRESI-
DENT'S
COMMISSION
ON
LAW
ENFORCEMENTr
AND
AD-
MINISTiRATION
OFJUSTICE,
TASK
FORCE
REPORr:
THE
COURTS
139
(1967):
The
great
majority
of
those
accused
of
crime
in
this
country
are
poor.
The
system
of
criminal
justice
under
which
they
are
judged
is
rooted
in
certain
ideals:
that
arrest can
only
be
for
cause;
that
defend-
ants,
presumed
innocent
until
shown
guilty,
are
entitled
to
pretrial
freedom
to
aid
in
their
own
defense;
that
a guilty
plea
should be voluntary;
that
the
allegations
of
wrongdoing
must
be
submitted
to
the truthfinding
light
of
the
adversary
system;
that
the
sentence
should
be
based
on
the
gravity
of
the
crime, yet
tempered
by
the
rehabilitative
potential
of
the
defendant;
that,
after rehabilitation,
the
of-
fender
should
be accepted back
into
the
community.
To
the
extent,
however,
that
the
system works
less
fairly for
the
poor
man
than
for
the
affluent,
the
ideal
is
flawed.
(4)
In
an
"adversary
system,"
it
can
describe
the
proper
relationship
between
the
courtroom agents who share
in
determining
the
defendant's
fate.
See
Bazelon,
The
Defec-
tive
Assistance
of
Counsel,
42
U.
CIN.
L.
REV.
1,
6
(1973):
The
American
Bar
Association's
Project
on
Mini-
mum
Standards
for
Criminal
Justice
used
the
met-
aphor
of
the
three-legged
stool to
depict
the
criminal
justice
system-justice
balanced
on
a
tripod
consist-
ing
of
the
trial
judge,
the
prosecutor,
and
the
defense
counsel.
If
any
one
of
those
three
is
shorter,
or
weaker,
than
the other
two,
there
is
an
imbalance
that
can
result
in
injustice.
Chief Justice
Burger,
who
chaired
the
ABA
project,
stated
not
long
ago
that
the
most
common
cause
of
imbalance
and
injustice
in
the
system
is
the
weakness
of
defense
counsel.
A
Committee
Report
to
the
Third
Annual Meeting
of
the
American Law
Institute
suggested:
"If
the
defendant
is
financially
able
to employ
counsel
he
can
have
as
many
as
he
desires,
while
in some
states
the
prosecuting
attorney
alone
must
conduct
the
prosecution
and
pecial counsel
cannot
appear."
Defects
in
Criminal
Justice,
11
ABA
J.
297,
298
(1925).
(5)
Rather
than
describing
a
relation
within
the
struc-
ture
of
criminal procedure,
"fairness"
may
present a
1978]
JOHN
L.
BARKAI
in
the
day-to-day
operations
of
the
lower
criminal
courts
has
been
accomplished.
This
article
will
examine
lower
court
problems
from
perspectives
which
differ
from
those.'employed
in
the
past.
Instead
of
presenting
a catalogue
of
lower
court
ills,
6
this
article
will
seek
to
develop
a
conceptual
framework
for
further
analysis
of
these
courts.
Ad-
dressed
here
are
three
interrelated
topics:
the
the-
ory
underlying
the
recommendations
of
lower
court
reform
movements;
the contrast
between,
judicial
theory
and
practice
in
the
operation
of
the
lower
criminal
courts;
and
non-adversarial
forms
of
crim-
inal
procedure
as
a
possible
new
approach
to
the
problems
of
the
lower
courts.
This
article
will
argue
that
the
problems
of
the
lower
criminal
courts
are
not
likely
to
be
solved
without
analyzing
the
inci-
dence
and
impact
of
lower
court
reform
move-
valuation
of
that
process
in
relation to
popular
wisdom
or common
sense
notions
which
people
have
about
their
rights
vis-a-vis
the
criminal
justice
system.
Such percep-
tions
may
well
reflect
accurately
the
current
state
of
"official"
procedural
rights.
See,
e.g.,
A
"Miranda
Card"
Read
to
Suspect,
N.Y.
Times,
Feb.
2,
1976,
at
24:
"Two
'Miranda
cards'
were
found
on
Mr.
Miranda's
body
after
the
slaying.
The
cards,
on
which
defendants'
rights
are
printed,
have
been
carried
by
policemen
since
the
Su-
preme
Court
ruling
of
1966
that
requires
the
authorities
to
inform
suspects
of
their
rights."
Such perceptions
may,
however,
only
evidence
survivals
of
popularly
recognized
but
newly
abolished
rights.
See
Mesch,
Human
Rights,
Chile
and
International
Organizations,
24
DE
PAUL
L.
REv.
999,
1008
(1975).
They
may
express
the
potential
rights
of
the
criminally
accused
but
only
in
their
nascent
form.
Thus,
when
in
1961,
Clarence
Earl
Gideon
told
the
Florida
Circuit
Court
that
the
United
States
Supreme
Court
said
he
was
entitled
to
be represented
by
counsel,
he
was
wrong.
He
was
vindicated
later
by
the
Supreme
Court
partially
because,
in
1961,
he believed
he
had a
right
which
in
fact
had
not
as
yet been
recognized.
Finally,
such
perceptions
may
represent
either
an
integrated
or
disorganized
ensemble
of
real
and
imagined
rights.
(Cf
Leo
Gorcey's
prolix
explanation
to
the
New
York police
of
his
rights
to
fair
treatment
which
had
been
guaranteed
by
the
"U.S.
Extreme
Court,"
in
the
1946
motion
picture,
BOWERY
BOMBSHELL).
These
virtual
"theories
of
fairness"
are
frequently
mixed
together
throughout
many
of
the
lower
criminal
court
studies
cited
in
this
article.
6
It
is
generally
agreed
that
the
chronic
symptoms
of
the
ills
of
the
lower
courts
include,
but
are
not
limited
to,
the
following:
The
staggering
volume
of
misdemeanor
cases,
the
absence
of
dignity
and
decorum
in
these
court-
rooms,
the
lack
of
competence
and
integrity
in
court
personnel
which
is
often
accentuated
by
their
insufficient
number,
the
pervasive
failure
to
treat
seriously
these
courts
and
the
people
who
appear
in
them,
and
the
infrequent
use
of
defense
counsel.
For
a
more
expansive
discussion
of
the author's
perception
of
lower
court
prob-
lems,
see
generally
Barkai,
Accuracy
Inquiries
For
All
Felony
and
Misdemeanor
Pleas:
Voluntary
Pleas
But
Innocent
Defend-
ants?,
126
U.
PA.
L.
REv.
88,
101-11
(1977).
ments,
focusing
on
the
vast,
although
not
always
apparent,
dichotomy
between
judicial
theory
and
practice
in
these
courts,
and
recognizing
the
risks
implicit
in
the
development
of
non-adversarial
forms
of
criminal
procedure
proposed
as
a
solution
to
the
current
crisis
in
the
criminal
courts.
INVESTIGATIONS
WITHOuT
RESULTS
America's
lower
criminal
courts
have proved
virtually
impervious
to
any
attempt
at
principled
reform.
Frequent
investigations
have
concluded
that
these
courts
have
failed
to
deal
justly
and
fairly
with
those
who
theoretically
would
be
re-
formed
by
their
contact
with the
criminal
justice
system.
Although
each
investigation,
report,
or
study
was
clearly
the
product
of
its
own
moment,
time,
and
author,
similar
conclusions
concerning
lower
court
operations
were
reached
regardless
of
the
purpose
of the
publication
or
the
nature
of
the
authorship.
Despite
the
apparent
unanimity
of
criticism,
little
or
no
change
in
the
operation
of
the
lower
courts
has
occurred.
In
the
wake
of
these
repeated
but
seemingly
ineffective
criticisms,
a
conference
was
held
by
the
University
of
Virginia
Law
School
during
the
spring
of
1969,
the
specific
purpose
of
which
was
to
address
the
problems
of
America's
lower
crimi-
nal
courts.
8
In
attendance
were
some
of
the
fore-
most
legal
scholars who
had
previously
investigated
and
reported
on
lower
court
reforms,
9
as
well
as
the
younger
generation
of
scholars
who
were
just
be-
ginning
to
take
up
the
cause.'
0
Francis
Allen
7
MASS
PRODUCTrION
JusTiCE
AND
THE
CONSTITU-
TIONAL
IDEAL
(C.
Whitebread
ed.
1970).
s
Paulsen,
Foreword,
in
C.
Whitebread,
supra
note
7,
at
vii:
"The
concern
which
lay
behind
the production
of
this
book
and
the
conference
which
produced
it
is
best
understood
by
recalling
two
lines
(slightly
altered)
from
Longfellow's
A
Psalm
of
Life:
'Tell
me
not,
in
mournful
numbers/
Law
is
but
an
empty
dream."'
Throughout
the
article
the
positions
ofspecific
theor-
ists
writing
on
the
lower
criminal
courts
are
in
each
case
developed
about
as
far
in
the
text
as
they
can
be.
For
example,
the
arguments
of
Francis
Allen,
Samuel
Dash,
John
Robertson
and
others
summarized
or
quoted
in
the
text exhaust
the
content
of
their
positions
on
the
lower
courts,
though
in
other
areas
of
law
they
may
have
extended
their
analyses
somewhat
further.
The
effort
is
made
here
to
situate
various
reforms
theorists
within
general
waves
of
historical
interest
in
reform
and
this
may
shed
light
on
their
theoretical
positions,
but
to
associate
individuals
any
more
closely
with
historical
moments
than
has been
attempted
would
probably
in-
accurately
portray
the
determinants
of the
positions
taken.
10
A
list
of
the
conference
participants
can
be
found
in
C.
Whitebread,
supra
note
7,
at
xxiii
to
xxv.
[Vol.
69
PERILS OF
PROCEDURE
opened
his
address
to
this
conference"
by
citing
an
article written
almost
twenty
years
earlier
by
Sam-
uel
Dash,
2
who
was
also
present
at
the
conference.
Dash
had
pointed
out
in
1951
that
the
scandalous
condition
of
the municipal
courts
was
virtually
identical
to
that
recorded
by
the
Illinois
Crime
Survey
of
1928.
Allen
recalled
Dash's
discourage-
ment:
There
were
the
same
problems
of
numbers,
the
same
absence
of
dignity
and
decorum,
the
same
lack
of
competence
and
integrity
in court
personnel-in
short,
the
same failure
of
justice
and
efficiency
that
had
evoked
disquiet
in
the
early
1930's.
Almost
two
more decades
have
now
elapsed
since Professor
Dash
published
his
piece.
If
modern
descriptions
of
the
administration
of
justice
in
small-crimes
courts
are
to
be believed,
little,
if
any,
improvement
has
oc-
curred
in
many urban
communities.
3
Despite
Allen's
urge
for
improvement,
the
Vir-
ginia
conference
accomplished
little.
The
confer-
ence
was
just
one in
a
long
line
of
meetings,
reports,
and
articles where
discussion
of
procedural
reform
was
the
order
of
the day.
By
taking
another
verbal
tour
of
the
assembly
line
of
the
lower
courts,
and
by
discussing
the
retooling
of
that
assembly
line,
the
conference.participants
ignored
the
real
issue.
Instead
of
merely
voicing
complaints,
the
partici-
pants
should
have
been
asking
themselves,
"Why
are
we
here
again?"
or
"Why
have
repeated
inves-
tigations
of
the
municipal
courts
not
led
to
solu-
tions?"
These
questions
would
have
directed
them
to
an
examination
of
the
history
of
reform
and
to
a
demand
for
action.
A
chronological
list
of
some
of
the
more
critical
and
important
studies
of
the
lower
criminal
courts"'
suggests
that
the
interest
in
the
subject
of
"mass
production"
justice
has
not
been
constant,.but
has
appeared
and
receded
over
seventy-five
years,
ris-
ing
and
falling
with the
tides
of national
concern
over
the
effectiveness
and
credibility
of
American
institutions
in
general.'
5
At
least
three
waves
of
"
Allen,
Small
Crimes
and
Large
Problems:
Some
Constitu-
tional
Dimensions,
in
C.
Whitebread,
vupra
note
7,
at
74.
"
Dash,
Cracks
in
the
Foundation
of
Criminal
Justice,
46
ILL.
L.
REv.
385
(1951).
"3
Allen, supra
note
11,
at
74-75.
14
See
e.g.,
J.
ROBERTSON,
ROUGH
JUSTICE:
PERSPEC-
"FIVES
ON
LOWER
CRIMINAL
COURTS
(1974);
Pound,
The
Administration
of
Criminal
Justice
in
the
Modem
City,
26
HARV.
L.
REV.
302
(1913).
'
5
This
assumption
is
based
upon
a
survey
of
legal
articles
and
widely
publicized
commission
reports
and
analyses
with
at
least some
visibility
within
the
legal
community.
Little
or
no
effort
has
been
made,
for
ex-
ample,
to
locate
chronologically
newspaper
or
general
interest
are
discernible.
The
first,
Roscoe
Pound's
confrontation
with
the
issues
of
urban
criminal
justice,
6
corresponded roughly
to
the
period
of
political
reform known
as
the
Progressive
Era.'
7
The
second wave
of
investigations
clustered
around
the
years
1929-31
and
appeared
during
a
time
of
particular
anxiety
over
the
spread
of
criminal
com-
munities
and
a
time
of rapid,
if
not
immediately
understood,
disintegration
of
national
confidence
in social
stability.'
8
Finally,
the
heavy
concentra-
tion
of
interest
in
the
lower
criminal
courts'
failure
to
achieve
an
image
of
fairness, in
spite
of
the
expansion
of
procedural
rights
for
criminal
defend-
ants
at an
unprecedented
pace
during
the
1960's,
arose
as
a
third
wave
at
a
critical
moment
of
tension
and
discord
in
the
larger
society.'
9
journalistic
accounts
of
the
crises
in
the
lower
courts
because
such
commentary
would
not
be
directed
initially
at
leaders
in
the
political
and
legal
communities,
but
rather
to
isolated
or
undifferentiated
sectors
of
the
general
reading population.
16
See
R.
POUND
&
F.
FRANKFURTER,
CRIMINAL
JUS.
TICE
IN
CLEVELAND:
REPORT
OF
THE
CLEVELAND
FOUNDAION
SURVEY
OF
rHE
ADMINISTRATION
OF
CRIMINAL
JUSTICE
IN
CLEVELAND,
OHIO
(1922).
17
American
historian
James
Weinstein argues
that
much
of
the
impetus
for
the
reform
movements
which
characterized
Progressivism
came
from
sophisticated
and
concerned
business
and
political
leaders,
fearful
of
a
decline
in
social
stability.
This
contrasts
with
the
view
that
businessmen
and
institutions
were necessarily
the
targets
of
reform
sentiment.
J.
WEINSTEIN,
THE
CORPORATE
IDEAL
IN
rHi-
LIB-
ERAL
STATE:
1900-1918,
3
(1968):
Underlying
all,
or
most,
of
the
new politics
of
these
years
was
an
awareness
on
the
part
of
the
more
sophisticated
business
and
political
leaders
that
the
social
order
could
be
stabilized
only
if
it
moved
in
the
direction
of
general
social
concern
and
social
responsibility..Dissatisfaction
with
the
increasing
po-
larization
of
American
society
and
with
the
apparent
decline
in
the
influence
of
some
social
classes
created
a
climate
for
change.
See
also
R.
HOFSTADTER,
THE
PROGRESSIVE
MOVE-
MiiNT
1900-1915
(1963),
and
THE
AcE
OF
REFORM
(1955);
G.
KoLKo,
THE
TRIUMPH
OF
CONSERVA'ISM,
A
REINTERPRErAIION
OF
AMERICAN
HISTORY
1900-1916
(1963);
R.
WIEBE,
BUSINESSMEN
AND
RE-
FORM,
A
STUDY
OF
THE
PROGRESSIVE
MOVEMENT
(1962).
18
See
generally
P.
CONKIN,
THE
NEW
DEAL
(1967);
M.
R'FHBARD,
AMERICA'S
GREAT
DEPRESSION
(1963);
A.
SCIALESINGER
JR.,
THE
AGE
OF
ROOSEVET:r,
yol.
1,
THE
CRISIS
OF
THE
OLD
ORDER
1919-1933
(1957);
G.
SELDES,
THE
YEARS
OF
TIHE
LOcUST
(1933);
W.
Wi.
LIAMS,
THE
ComrOURS
OF
AMERICAN
HISTORY
343.-88
(1961).
i
9
See
D.
HALBERS'AM,
THE
BEST
AND
THE
BRIGHT.
FST
(1972);
J.
HEATH,
DECADE
OF
DISILLUSIONMENT:
THE
KENNEDY-JOHNSON
YEARS
(1975);
A.
KENDRICK,
THE
WOUND
WITHIN:
AMERICA
IN
THE
VIE-I'NAM
1978]
JOHN
L.
BARKAI
.
A
theoretical
explanation
for
this
apparent
re-
lationship
between
social
instability
and
lower
court
criticism
seems
clear.
It
is
frequently
noted
that
the
lower
criminal
courts are
the
most
signifi-
cant-and
sometimes
only-point
of
contact
which
most
Americans
will
have
with
the
criminal
justice
system.
2 0
Thus,
during
periods
of
national
social
instability,
it
is
possible
that
some
focus
is
given
to
the
lower
criminal
courts
because
they
become
more
heavily
relied
upon
to
demonstrate
the
avail-
ability
of
justice
within
the
existing
structure
of
social
values
and
arrangements.
The
courts'
failure
to
do
so
at
such
times
would
seem
to
present
an
enhanced
threat
to
the
survival
of
the
legal
system
among
others.
Consistent
with
this theory,
it
is
thus
not
sur-
prising
that
Francis
Allen
concluded
his
1969
ad-
dress
at
the Virginia
conference
with
the warning
that:
[Alt
a time
when allegiances
to
orderly
processes
of
social
change
are
wavering
and hanging
in
the
balance,
concern
for
the
decency
of
the
law
and
its
enforcement
becomes
a
matter
of
vital
practical
importance.
Few
institutions
have
done
more
to
impair
the
good
reputation
of
the
law
and
to
drain
its
moral
authority
than
the
small-crimes
courts
in
many
large
cities.
2
1
Similarly,
in
the
preface
to
his
important
contri-
bution
to
the
exposure
of
municipal
court
proce-
dures,
John
Robertson
suggests
that:
[Tlhe
lower
court
system
continues
to
churn
up
people
and
cases,
providing
further
evidence
for
Chief
Justice
Hughes'
often
quoted
statement
on
the importance
of
lower
courts-a
statement
im-
YEARS,
1945-1974
(1974);
H.
MORGENTHAU,
TRUTH
AND
POWER:
ESSAYS
OF
A
DECADE,
1960-70
(1970);
W.
O'NEII.,
COMING
APART:
AN
INFORMAL
HISTORY
OF
AMERICA
IN
THE
1960's
(1971):
K.
SALE,
SDS
(1973).
20
See
J.
ROBERTSON,
Supra
note
14,
at
vii:
No
formal
legal
institution,
except
the
police, has
as
much
direct
contact
with
people
as
the
lower
courts.
For
millions
of
people
these
courts embody
the
law
and
judicial
process.
For
most
people
the
words
"judge,"
"trial."
and
"court"
have
no
experiential
referent
other
than
their
encounters
with
the
munic-
ipal,
misdemeanor,
traffic,
and
magistrate's
courts
of
their
community..
See
also
THE
PRESIDENT'S
COMMISSION
ON
LAW
EN-
FORCEMENT
AND
ADMINISTRATION
OF
JUSTICE,
TASK
FORCE
REPORT:
THE
COURTS
29
(1967);
L.
SILVER-
STEIN,
DEFENSE
OF
I'HE
POOR
IN
CRIMINAL
CASES
IN
AMERICAN
STATE
COURTS:
A
FIEI.D
STUDY
AND
RE-
PORT,
NATIONAL
REPORT
123-24
(1965).
2'
Allen,
supra
note
11,
at
96.
possible
not
to
quote
in
a
book
such
as
this: "A
petty
tyrant
in
a
police
court,
refusals
of
a
fair
hearing
in
minor
civil
courts,
the
impatient
disre-
gard
of
an
immigrant's
ignorance
of our
ways
and
language,
will
daily
breed
bolshevists
who
are
be-
yond
the
reach
of
your
appeals.
Here
is
work
for
lawyers.
The
Supreme
Court
of
the
United States
and
the
court
of
appeals
will
take
care
of
themselves.
Look
after
the
courts
of
the
poor,
who
stand
most
in
need
ofjustice.
The
security
of the
Republic
will
be
found
in
the treatment
of
the
poor
and
the ignorant;
in
indifference
to
their
misery
and
helplessness
lies
disaster".
2
n
What
is
most
interesting
about
these
views
is
the
extent
to
which they
are
wrong.'s
The
Republic
has
remained
healthy
in
spite
of the
lower
courts'
unchanged
treatment of
the
poor
and
ignorant.
Certainly,
the
abuse
of the
poor
and
underprivi-
leged
by
the
courts
has
not
produced
a
class
of
revolutionaries,
as
Mr.
Justice
Hughes
may
have
predicted.
Indeed,
the
"immigrant's
ignorance
of
our
ways
and
language"'
may
have
actually
cre-
ated a
stumbling
block to
the
political
organization
of
America's
industrial
workers
and
the
develop-
ment
of
a
kind
of
social
movement
which
would
have
justified
Hughes'
sense
of
alarm.2
5
To
the
extent
that
the
treatment
of
the
predom-
inantly
poor
class
of
criminal defendants
in
Amer-
ica's
lower
courts
has
depended
upon
their
capacity
to respond to
injustice
at
the
hands
of
the
courts
in
an organized
and
politically
threatening
way,
it
becomes
less
surprising
that
decades
of
lower
court
investigations
have
proved
to
have
had
so
little
effect.
An
essential aspect
of
poverty
is
that
the
22
J.
RoBERi-soN,
supra
note
14,
at
vii-viii.
23
In fairness
to
Justice
Hughes,
it
should
be
pointed
out
that
he
was
not alone
in
his
misgivings
about
the
durability
of
American
institutions
when confronted
with
the
potential
growth
of
pernicious
foreign ideologies,
especially
if
the
ideologies
were
adopted
by
people
from
the
lower reaches
of
society.
See
M.
GREEN,
THE
NA-
TIONAL
Civic
FEDERATION
AND
rHE
AMERICAN
LABOR
MOVEMENT
1900-1925,
at
185
(1956).
SeeJ.
WEINSIEIN,
supra
note
17.
24
See
text
at
note
16
supra.
25
Bok,
Reflections
on
the
Distinctive
Character
of
American
Labor
Laws,
84
HARV.
L.
REv.
1394, 1403
(1971):
Various
forces
seem
to
have
contributed
to
the
lack
of
cohesion
among
working
people
in
the
United
States.
One
important
factor
was
the
network
of
language,
racial,
and
religious
barriers thrown
up
by
repeated
waves
of
immigration.
These
differences
often
led
to factions
within
the
ranks
of
labor
so
that
locals
and
even
national
unions
were
frequently
dominated
by
particular
ethnic
groups.
See
also
M.
KARSON,
AMERICAN LABOR
UNIONS
AND
POLIIC-s
1900-1918
(1958).
[Vol.
69