A Concrete Example of a Prematurely Punitive Process

One of the ruts that I, along with some of my colleagues, fall into when thinking about the pre trial process is to start optimizing for speed. The trap is that you start to think about the process in term of how quickly matters are processed to the exclusion of everything else. How to optimize the system for that problem of delay? I even routinely fall into this trap when I’m asked to explain my work because it’s the easiest to explain for folks that aren’t that engaged with the system. The conversation inevitably goes something as follows: “What are you studying?” → “The pre-trial criminal justice process.” → “Oh neat, what up with that?” → “Well, it’s complicated and it takes a really long time for most cases to finish.” (Inside voice: dammit, I did it again)

As I mentioned in The Goodness of a Criminal Process there are other desireable dimensions to a “good” criminal process but thinking about those other two in concrete terms is hard. It the process itself can be unfair and it can lead to unfair results. The unfair results, like wrongful convictions, deserve their own post. This post is about what happens when the process used is intrinsically unfair.

Let’s walk through a concrete example of how the process itself can spawn unfairness. This is the story of a man that spent 6 hours melting slowly into a hard-backed wooden dining chair. I only saw this man once on a case management call in May of 2023. The man joined the call at 8:30am, as he was directed to by the police. He used his child’s iPad - made obvious by the display name and the heart signs bracketing it. The lawyers, myself, and the other observers had turned their camera off while we waited for their matter to be called; but this is his first appearance and he doesn’t know to do that. He also doesn’t know, and no-one has told him, that his matter won’t be called until the afternoon when the court is finished with the lawyers, students, and agents on the call. He sits bolt upright in his chair in front of a pale green wall for the next thirty minutes and slowly melts into it over the following five hours. At about 2:30 pm the clerk points out to the justice that this man has been on the call since 8:30 and his matter is called. His appearance lasts roughly 90 seconds and results in a three week adjournment to a self represented pre-trial before a judge. He will have to email the crown’s office for his disclosure in the meantime. Variations on this story in Ottawa happen pretty much daily. Some clerks will try to flag for folks appearing early that matters without lawyers won’t be called until the afternoon, but that’s uncommon.

Mr. Melt-in-the-chair spent the entire day on the call. He saw lawyers chastised by the justice for various arcane legal reasons and he saw cases set down for trial. He was put face-to-face, in a very concrete sense, with the jeopardy he faced, as he sat through the in-custody portion of the docket after lunch. He was able to watch the man in the orange jump suit in the Toronto jail and hear the deafening din of the Ottawa-Carleton Detention Centre over the phone. Within 3 weeks of his first appearance, he’ll appear alone before a judge who has read the allegations and the Crown’s summary of the facts.

Contrast that experience to the 90 or so other matters were called while he waited. A lawyer, their agent, or commonly a lawyer’s articling student appeared usually for between 30 seconds and 2 minutes and then the matter was usually adjourned to a couple weeks down the line. They quickly then move onto the next matter in their list. A list that could be up to a dozen matters long. The represented people are very infrequently present¹. Their interface to the process and the exposure to any punitive aspects of that process is entirely different. That represented person will likely appear in court between zero and one time(s). Their entire experience of the criminal justice system is experienced with their defence lawyer as a proxy. Now, this is probably desirable in a system where the accused person is presumed innocent, but it is not the universal experience. This unfairness is baked into the case management process we currently have.

The process itself being punitive is not a novel observation. Malcolm Feeley proposed in the 1970s in his aptly titled “The Process is the Punishment” that the cumulative effect of the pre-trial decisions, bail, missed days of work, or the managerial control, are often more significant than after sentencing:

The adjudicative ideal is concerned with the determination of guilt or innocence, and to a lesser extent with the sentence. Yet we found that the accused were not sanctioned most severely at or primarily concerned with these stages. Rather the cumulative effect of several pre-trial and by-product decisions imposed the most significant tangible sanctions upon the accused, sanctions which for the most part are not different for the innocent and the guilty.²

Evolving the pre-trial process needs to involve more than optimizing for delay and rooting out a “culture of complacency”. Those are the easy things to measure and to optimize for. It is much more difficult to recognize a disparity in experience that leads to punishing a subset of people long before it’s warranted.