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Normal Crimes: Sociological Features of the Penal Code in a Public Defender Office
Author(s): David Sudnow

Source: Social Problems , Winter, 1965, Vol. 12, No. 3 (Winter, 1965), pp. 255-276
Published by: Oxford University Press on behalf of the Society for the Study of Social
Problems
Stable URL: https://www.jstor.org/stable/798932
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NORMAL CRIMES: SOCIOLOGICAL FEATURES OF THE
PENAL CODE IN A PUBLIC DEFENDER OFFICE
DAVID SUDNOW
Washington University
Two stances toward the utility

oped. of
Common attempts at such re-
official classificatory schema for vision have included notions such as
crim-
inological research have been debated
1?white collar crime," and "systematic
for years. One position, whichcheck mightforger," these conceptions con-
be termed that of the "revisionist" stituting attempts to institute socio-
school, has it that the categories logically
of meaningful specifications
the criminal law, e.g., "burglary," which the operations of criminal law
procedure and statutory legislation
"petty theft," "homicide," etc., are not
"homogeneous in respect to causa- "fail" to achieve.
tion."1 From an inspection of penalThe other major perspective toward
the sociologist's use of official cate-
code descriptions of crimes, it is ar-
gued that the way persons seem to gories
be and the criminal statistics com-
assembled under the auspices of crim-piled under their heading derives less
inal law procedure is such as to pro-from a concern with etiologically use-
duce classes of criminals who are, atful schema than from an interest in
least on theoretical grounds, as dis- understanding the actual operations of
similar in their social backgrounds andthe administrative legal system. Here,
styles of activity as they are similar.the categories of the criminal law are
The entries in the penal code, this not regarded as useful or not, as ob-
school argues, require revision if so- jects to be either adopted, adapted, or
ciological use is to be made of catego-ignored; rather, they are seen as con-
ries of crime and a classificatory scheme
stituting the basic conceptual equip-
of etiological relevance is to be devel-
ment with which such people as judges,
lawyers, policemen, and probation
workers
This investigation is based on field ob- organize their everyday
servations of a Public Defender Office in a
activities. The study of the actual use
metropolitan California community. The re-
search was conducted while the author was of official classification systems by ac-
associated with the Center for the Study of tually employed administrative per-
Law and Society, University of California, sonnel regards the penal code as data,
Berkeley. I am grateful to the Center for to be preserved intact; its use, both in
financial support. Erving Goffman, Sheldon
Messinger, Harvey Sacks, and Emanuel organizing the work of legal represen-
Schegloff contributed valuable suggestions tation, accusation, adjudication, and
and criticisms to an earlier draft. prognostication, and in compiling
1 D. R. Cressey, "Criminological Re- tallies of legal occurrences, is to be ex-
search and the Definition of Crimes,"
amined as one would examine any so-
American Journal of Sociology, Vol. 61
cial activity. By sociologically regard-
(No. 6), 1951, p. 548. See also, J. Hall,
Theft, Law and Society, second edition, ing, rather than criticizing, rates of
Indianapolis: Bobbs-Merrill, 1952; and statistics
E. and the categories employed
Sutherland, Principles of Criminology, re-
to assemble them, one learns, it is
view, New York: Lippincott, 1947, p. 218.
An extensive review of "typological de-promised, about the "rate producing
agencies" and the assembling process.2
velopments" is available in D. C. Gibbons
and D. L. Garrity, "Some Suggestions for While the former perspective, the
the Development of Etiological and Treat-
ment Theory in Criminology," Social 2 The most thorough statement of this
Forces, Vol. 38 (No. 1) 1959. position, borrowing from the writings of

84.69.150.117 on Wed, 24 Mar 2021 16:33:51 UTC
256 SOCIAL PROBLEMS
"revisionist" position,
county fromhas yielded
which the following mate-
several fruitful products, the
rial is drawn, over latter
80 per cent of all
stance (commonlycases identified with
"never go to trial." To describe
what is rather loosely
the methodknown
of obtainingas theplea
a guilty
"labelling" perspective),
disposition, has
essentialbeen on
for the discussion
the whole more promissory
to follow, I mustthan
distinguishpro-between
ductive, more programmatic than
what shall be termed "necessarily-in-
cluded-lesser-offenses"
empirical. The present report will and "situation-
ex-
amine the operations of a Public De-
ally-included-lesser-offenses." Of two
fender system in an effort
offenses toin assess
designated the penal code,
the warrant for the continued theoret- the lesser is considered to be that for
ical and empirical development of which the length of required incarcera-
the position argued by Kitsuse and tion is the shorter period of time. In-
Cicourel. It will address the question: clusion refers to the relation between
what of import for the sociological two or more offenses. The "necessarily-
analysis of legal administration can be included-lesser-offense" is a strictly
learned by describing the actual way legal notion:
the penal code is employed in the Whether a lesser offense is included in
daily activities of legal representation ? the crime charged is a question of law to
First, I shall consider the "guilty plea" be determined solely from the definition
as a way of handling criminal cases, and corpus delicti of the offense charged
focusing on some features of the penal and of the lesser offense. ... If all the
elements of the corpus delicti of a lesser
code as a description of a population crime can be found in a list of all the
of defendants. Then I shall describe elements of the offense charged, then
the Public Defender operation with
only is the lesser included in the greater.4
special attention to the way defendants
Stated alternatively:
are represented. The place of the
The test in this state of necessarily in-
guilty plea and penal code in this
cluded offenses is simply that where an
representation will be examined.offense cannot be committed without
necessarily committing another offense,
Lastly, I shall briefly analyze the fash-
the latter is a necessarily included of-
ion in which the Public Defender pre-
fense.5
pares and conducts a "'defense." The
The implied negative is put: could
latter section will attempt to indicate
Smith have committed A and not B?
the connection between certain prom-
inent organizational features of If the answer is yes, then B is not
the
necessarily included in A. If the an-
Public Defender system and the penal
code's place in the routine operation
swer is no, B is necessarily included.
of that system. While in a given case a battery might
be committed in the course of a rob-
GUILTY PLEAS, INCLUSION, ANDbery, battery is not necessarily inclu-
NORMAL CRIMES
ded in robbery. Petty theft is neces-
It is a commonly noted fact about sarily included in robbery but not in
the criminal court system generally, burglary. Burglary primarily involves
that the greatest proportion of cases the "intent" to acquire another's goods
are "settled" by a guilty plea.s In the P.S. Also, M. Schwartz, Cases and Ma-
terials on Professional Responsibility and
Harold Garfinkel, can be found in the the Administration of Criminal Justice, San
recent critical article by J. I. Kitsuse and
Francisco: Matthew Bender and Co., 1961,
A. V. Cicourel, "A Note on the Official esp. pp. 79-105.
Use of Statistics," Social Problems, Vol. 4 C. W. Fricke, California Criminal
11, No. 2 (Fall, 1963) pp. 131-139. Law, Los Angeles: The Legal Book Store,
3 See D. J. Newman, "Pleading Guilty 1961, p. 41.
for Considerations," 46 J. Crim. L. C. and 5 People v. Greer, 30 Cal. 2d, 589.

84.69.150.117 on Wed, 24 Mar 2021 16:33:51 UTC
Normal Crimes 257
illegally (e.g., by breaking

necessarily and en
included in "statutory
tering); the consummation ofsuggest
rape." He cannot however the ac
need not occur that the alternative
for "intent to commit
burglary to b
committed. Theft,
murder" be like robbery,
considered and the jury r
cannot
quires that some item find thebe defendant
stolen. guilty of
I shall call lesser offenses that are this latter crime, unless it is charged
not necessarily but "only" actually inas a distinct offense in the complaint.
cluded, "situationally-included-lesser- It is crucial to note that these
offenses." By statutory definition, restrictions apply only to (a) the rela-
necessarily included offenses are "action between several charged offenses
tually" included. By actual here, I refer in a formal allegation, and (b) the
to the "way it occurs as a course of alternatives allowable in a jury in-
action." In the instance of necessary struction. At any time before a case
inclusion, the "way it occurs is irrele- "goes to trial," alterations in the
vant. With situational inclusion, the charging complaint may be made by
"way it occurs" is definitive. In the the district attorney. The issue of
former case, no particular course of necessary inclusion has no required
action is referred to. In the latter, the bearing on (a) what offense(s) will
scene and progress of the criminal be charged initially by the prosecutor,
activity would be analyzed. (b) what the relation is between the
The issue of necessary inclusion has charge initially made and "what hap-
special relevance for two procedural pened," or (c) what modifications
matters:
may be made after the initial charge
A. A man cannot be charged and/or and the relation between initially
convicted of two or more crimes anycharged offenses and those charged in
one of which is necessarily included
modified complaints. It is this latter
in the others, unless the several
crimes occur on separate occasions.
operation, the modification of the
complaint, that is central to the guilty
If a murder occurs, the defendant can- plea disposition.
not be charged and/or convicted of Complaint alterations are made
both "homicide" and "intent to com- when a defendant agrees to plead
mit a murder," the latter of which is guilty to an offense and thereby avoid
necessarily included in first degree a trial. The alteration occurs in the
murder. If, however, a defendant "in- context of a "deal" consisting of an
tends to commit a homicide" against offer from the district attorney to alter
one person and commits a "homicide" the original charge in such a fashion
against another, both offenses may be that a lighter sentence will be incurred
properly charged. While it is an ex- with a guilty plea than would be the
tremely complex question as to the case if the defendant were sentenced
scope and definition of "in the course on the original charge. In return for
of," in most instances the rule is easily this manipulation, the defendant agrees
applied. to plead guilty. The arrangement is
B. The judge cannot instruct the jury to proposed in the following format: "if
consider as alternative crimes of you plead guilty to this new lesser of-
which to find a defendant guilty, fense, you will get less time in prison
crimes that are not necessarily in-
than if you plead not guilty to the orig-
cluded in the charged crime or crimes.
inal, greater charge and lose the trial."
If a man is charged with "statutory The decision must then be made
rape" the judge may instruct the whether jury or not the chances of obtaining
to consider as a possible alternative
complete acquittal at trial are great
enough to warrant the risk of a loss
conviction "contributing to the delin-
quency of a minor," as this offense
andishigher sentence if found guilty on

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258 SOCIAL PROBLEMS
the original charge.a minor," As we shall

there are see be-
not any necessarily
low, it is a major job included
of lesser
theoffenses with which De-
Public to
fender, who mediates charge between the
him. Yet an alternative dis-
charge
trict attorney and -"loitering the defendant,
around a schoolyard"- to
convince his "client" that the chances is often used as a reduction. As above,
of acquittal are too slight to warrant and central to our analysis the question
this risk. is: what would the defendant's be-
If a man is charged with "drunken- havior be such that "loitering around
ness" and the Public Defender and a schoolyard" would constitute an ap-
Public Prosecutor (hereafter P.D. and propriate alternative ?
D.A.) prefer not to have a trial, theyIf a person is charged with "bur-
seek to have the defendant agreeglary," to "petty theft" is not necessarily
plead guilty. While it is occasionally included. Routinely, however, "petty
possible, particularly with first theft"
of- is employed for reducing the
fenders, for the P.D. to convince the charge of burglary. Again, we shall
defendant to plead guilty to the orig- ask: what is the relation between bur-
inally charged offense, most oftenglary it and petty theft and the manner
is felt that some "exchange" or "con- in which the former occurs that war-
sideration" should be offered, i.e., rants
a this reduction?
lesser offense charged. Offenses are regularly reduced to
To what offense can "drunkenness" other offenses the latter of which are
be reduced? There is no statutorily des-
not necessarily or situationally includ-
ignated crime that is necessarily in-ed in the former. As I have already
cluded in the crime of "drunkenness." said the determination of whether or
That is, if any of the statutorily re- not offense X was situationally in-
quired components of drunk behaviorcluded in Y involves an analysis of
(its corpus delicti) are absent, therethe course of action that constitutes
remains no offense of which the result- the criminal behavior. I must now turn
ant description is a definition. Forto examine this mode of behavioral
drunkenness there is, however, an analysis.
offense that while not necessarily in- When encountering a defendant
cluded is "typically-situationally-in-who is charged with "assault with a
cluded," i.e., "typically" occurs as adeadly weapon," the P.D. asks: "what
feature of the way drunk persons are can this offense be reduced to so as to
seen to behave--"disturbing the arrange for a guilty plea? As the re-
peace." The range of possible sentences duction is only to be proposed by the
is such that, of the two offenses, "dis- P.D. and accepted or not by the D.A.,
turbing the peace" cannot call for ashis question becomes "what reduction
long a prison sentence as "drunk-will be allowable ?" (As shall be seen
enness." If, in the course of going on below, the P.D. and D.A. have insti-
a binge, a person does so in such a tutionalized a common orientation to
fashion that "disturbing the peace" allowable reductions.) The method of
may be employed to describe some of reduction involves, as a general feature,
his behavior, it would be considered as the fact that the particular case in
an alternative offense to offer in return question is scrutinized to decide its
for a guilty plea. A central questionmembership in a class of similar cases.
for the following analysis will be: in But the penal code does not provide
what fashion would he have to be- the reference for deciding the corres-
pondence between the instant event
have so that disturbing the peace
would be considered a suitable re- and the general case; that is, it does
duction ? not define the classes of offense types.
If a man is charged with "molesting To decide, for purposes of finding a

84.69.150.117 on Wed, 24 Mar 2021 16:33:51 UTC
Normal Crimes 259
wouldif
suitable reduction, describe
the the transformation
instantbe- case
involves a "burglary,"
tween the burglaryreference
cases statutorily de- is
scribed and the reductions
not made to the statutory definition routinely of
"burglary." To decide what
made (i.e., to "petty theft"). the
The rule sit-
mustoffenses
uationally included be sought elsewhere, areinin the the
instant case, the instant
character case defined
of the non-statutorily is not
class of "burglaries,"referable
analyzed as a statutorily which I shall
course of action; term
rather, reference is
normal burglaries.
made to a non-statutorily conceived
NORMAL CRIMES
class "burglary" and offenses that are
In the course
typically situationally of routinely
included inen-it,
taken as a class of behavioral events. countering persons charged with
Stated again: in searching an instant "petty theft," "burglary," "assault
case to decide what to reduce it to,with a deadly weapon," "rape," "pos-
there is no analysis of the statutorilysession of marijuana," etc., the P.D.
referable elements of the instant case;gains knowledge of the typical manner
instead, its membership in a class of in which offenses of given classes are
events, the features of which cannot committed, the social characteristics of
be described by the penal code, must the persons who regularly commit
be decided. An example will be use-them, the features of the settings in
ful. If a defendant is charged with which they occur, the types of victims
burglary and the P.D. is concerned tooften involved, and the like. He learns
to speak knowledgeably of "burglars,"
propose a reduction to a lesser offense,
"petty thieves," "drunks," "rapists,"
he might search the elements of the
burglary at hand to decide what other "narcos," etc., and to attribute to them
offenses were committed. The other personal biographies, modes of usual
offenses he might "discover" would be criminal activity, criminal histories,
of two sorts: those necessarily and psychological characteristics, and so-
those situationally included. In attemp- cial backgrounds. The following char-
ting to decide those other offenses acterizations are illustrative:
situationally included in the instant Most ADWs (assault with deadly wea-
event, the instant event might be pon) start with fights over some girl.
analyzed as a statutorily referable These sex fiends (child molestation
course of action. Or, as is the case cases) usually hang around parks or
schoolyards. But we often get fathers
with the P.D., the instant case might charged with these crimes. Usually the
be analyzed to decide if it is a "bur- old man is out of work and stays at
glary" in common with other "bur- home when the wife goes to work and
glaries" conceived of in terms other he plays around with his little daughter
or something. A lot of these cases start
than those provided by the statute. when there is some marital trouble and
Burglaries are routinely reduced to the woman gets mad.
petty theft. If we were to analyze the I don't know why most of them don't
way burglaries typically occur, petty rob the big stores. They usually break
theft is neither situationally or neces- into some cheap department store and
steal some crummy item like a $9.95
sarily included; when a burglary is record player you know.
committed, money or other goods are
seldom illegally removed from some Kids who start taking this stuff (nar-
cotics) usually start out when some
person's body. If we therefore ana- buddy gives them a cigarette and they
lyzed burglaries, employing the penal smoke it for kicks. For some reason they
code as our reference, and then always get caught in their cars, for
searched the P.D.'s records to see how speeding or something.
burglaries are reduced in the guilty

They can anticipate that point when
plea, we could not establish a rule thatpersons are likely to get into trouble:

84.69.150.117 on Wed, 24 Mar 2021 16:33:51 UTC
260 SOCIAL PROBLEMS
Dope addicts do plainant,

O.K. via until they
the mother, lose a
etc. Narcotics
job or something and are
defendants get back
usually Negroes,onnot the
streets and, you know, meet the old boys.
syndicated,
Someone tells them wherepersons who
tostart by using
get some
small stuff, hostile with police officers,
and there they are.
caught
In the springtime, by somewhen
that's form of entrapment
we get all
these sex crimes.technique,
You know, these
etc. Petty thefts are aboutkids
play out in the schoolyard all day
50-50 Negro-white, unplanned of- and
these old men sit around and watch them
fenses, generally committed on lower
jumping up and down. They get their
ideas. class persons and don't get much
money, don't often employ weapons,
The P.D. learns that some kinds of
don't make living from thievery,
offenders are likely to repeat theusually
same younger defendants with long
offense while others are not repeat
juvenile assaultive records, etc.
violators or, if they do commit crimes
Drunkenness offenders are lower class
frequently, the crimes vary from oc- and Negro, get drunk on wine
white
casion to occasion:
and beer, have long histories of re-
You almost never see a check man get
peated drunkenness, don't hold down
caught for anything but checks--only an
occasional drunk charge.
jobs, are usually arrested on the
streets, seldom violate other penal code
Burglars are usually multiple offenders,
sections, etc.
most times just burglaries or petty thefts.
Some general features of the nor-
Petty thefts get started for almost any-
mal crime
thing-joy riding, drinking, all kinds of as a way of attending to
little things. a category of persons and events may
be mentioned:
These narcos are usually through after
the second violation or so. After the 1. The focus, in these characteriza-
first time some stop, but when they start
tions, is not on particular individuals,
on the heavy stuff, they've had it.
but offense types. If asked "What are
I shall call normal crimes those oc- burglars like?" or "How are burgla-
currences whose typical features, e.g.,ries usually committed ?", the P.D. does
the ways they usually occur and thenot feel obliged to refer to particular
characteristics of persons who commitburglars and burglaries as the material
them (as well as the typical victimsfor his answer.
and typical scenes), are known and 2. The features attributed to offen-
attended to by the P.D. For any of aders and offenses are often not of im-
series of offense types the P.D. canport for the statutory conception. In
provide some form of proverbialburglary, it is "irrelevant" for the
characterization. For example, bur-statutory determination whether or not
glary is seen as involving regular vio-much damage was done to the prem-
lators, no weapons, low-priced items, ises (except where, for example,
little property damage, lower class explosives were employed and a new
establishments, largely Negro defend-statute could be invoked). Whether a
ants, independent operators, and adefendant breaks a window or not,
non-professional orientation to thedestroys property within the house or
crime. Child molesting is seen asnot, etc., does not affect his statutory
typically entailing middle-aged stran-classification as a burglar. While for
gers or lower class middle-aged fathersrobbery the presence or absence of a
(few women), no actual physicalweapon sets the degree, whether the
penetration or severe tissue damage,weapon is a machine gun or pocket
mild fondling, petting, and stimula- knife is "immaterial." Whether the
tion, bad marriage circumstances, mul-residence or business establishment in
tiple offenders with the same offensea burglary is located in a higher in-
repeatedly committed, a child com-come area of the city is of no issue for

84.69.150.117 on Wed, 24 Mar 2021 16:33:51 UTC
Normal Crimes 261
the type convictions

code requirements. over time,
And, certain
genera
the defendant's race,
offenses class
are continually morepositi
common
criminal history (inremain
and others most offens
stably infrequent.
The troubles created
personal attributes, for the P.D.
and when
particu
style of offenses whoseoffenses
committing features are not readily
are f
tures specifically not
known occur, definitive
and whose typicality
crimes under theis notauspices
easily constructed, of
will bethe
dis- pe
cussed in "Is
code. For deciding some detail
thisbelow. a 'burgla
case I have before me,"
5. Offenses however,
are ecologically speci- t
P.D.'s referencefied
to and this
attended torange
as normal orofnot no
statutorily referable
according to thepersonal and
locales within which
cial attributes, modes
they are committed. of operati
The P.D. learns
etc., is crucial for the usually
that burglaries arrangemen
occur in such
a guilty plea bargain.
and such areas of the city, petty thefts
3. The features attributed to offen
around this or that park, ADWs in
ers and offenses are,
these in their
bars. Ecological patterns areconte
seen
specific to the community in which
as related to socio-economic variables
P.D. works. In other communities and
and these in turn to typical modes of
historical periods the lists would pre- criminal and non-criminal activities.
sumably differ. Narcotics violators inKnowing where an offense took place
certain areas, for example, are syndi- is thus, for the P.D., knowledge of
cated in dope rackets or engage in sys-the likely persons involved, the kind of
tematic robbery as professional crim- scene in which the offense occurred,
inals, features which are not commonlyand the pattern of activity characteris-
encountered (or, at least, evidence fortic of such a place:
which is not systematically sought) in
this community. Burglary in some Almost all of our ADWs are in the same
half a dozen bars. These places are Ne-
cities will more often occur at large gro bars where laborers come after hang-
industrial plants, banking establishing around the union halls trying to get
ments, warehouses, etc. The P.D. re- some work. Nobody has any money and
they drink too much. Tempers are high
fers to the population of defendants and almost anything can start happening.
in the county as "our defendants" and
qualifies his prototypical portrayals 6. One further important feature
and knowledge of the typically opera-can be noted at this point. Its elabora-
tive social structures, "for our county."tion will be the task of a later sec-
An older P.D., remembering the "oldtion. As shall be seen, the P.D. office
days," commented: consists of a staff of twelve full time
We used to have a lot more rapes than attorneys. Knowledge of the proper-
we do now, and they used to be muchties of offense types of offenders, i.e,
more violent. Things are duller now their normal, typical, or familiar at-
in ....
tributes, constitutes the mark of any
4. Offenses whose normal features given attorney's competence. A major
are readily attended to are those whichtask in socializing the new P.D. deputy
are routinely encountered in the court-attorney consists in teaching him to
room. This feature is related to the recognize these attributes and to come
last point. For embezzlement, bank to do so naturally. The achievement of
robbery, gambling, prostitution, mur-competence as a P.D. is signalled by
der, arson, and some other uncommonthe gradual acquisition of professional
offenses, the P.D. cannot readily sup-command not simply of local penal
ply anecdotal and proverbial char-code peculiarities and courtroom folk-
acterizations. While there is some lore, but, as importantly, of relevant
change in the frequencies of offense- features of the social structure and

84.69.150.117 on Wed, 24 Mar 2021 16:33:51 UTC
262 SOCIAL PROBLEMS
criminological wisdom. His

reduction of offense X to Ygrasp
must be of of
that knowledge such
overa character
thethat thecourse
new sentence of
will depart fromof
time is a key indication the anticipated
his exper- sen-
tise. Below, in our brief
tence for the originalaccount
charge to such a of
some relevant organizational
degree that the defendant proper-
is likely to
ties of the P.D. system, we
plea guilty to the shall
new charge and, have
at
occasion to re-emphasize the
the same time, not so great thatcom-
the
petence-attesting defendant
aspects does not
of "getthe
his due."attor-
ney's proper use of established
In a homicide, while battery is a
necessarily included
sociological knowledge. Let offense,
us return it will
to the mechanics not of theas guilty
be considered a possible reduc-plea
tion. For a conviction
procedure as an example of ofthesecond de-
opera-
greeof
tion of the notion murder a defendant crimes.
normal could re-
Over the course of
ceive their interaction
a life sentence in the pen-
itentiary. For a battery
and repeated "bargaining" conviction he
discussions,
the P.D. and D.A.wouldhave developed
spend no more than six months a
in the county for
set of unstated recipes jail. In areducing
homicide,
original chargeshowever, "felony manslaughter,"
to lesser offenses. or
"assault
These recipes are with a deadly weapon,"appro-
specifically what-
ever their relation to homicide as re-
priate for use in instances of normal
crimes and in such instances
gards inclusion, alone.
would more closely
approximate
"Typical" burglaries arethe sentence
reducedoutcome to
that could be
petty theft, "typical" expected on to
ADWs a trialsimple
con-
assault, "typical" viction
child of second degree murder. to
molestation
These alternatives would be consid-
loitering around a schoolyard, etc. The
character of these ered. For burglary, a typically
recipes deservessitua-
attention. tionally included offense might be
"disturbing
The specific content ofthe any
peace," "breaking
reduc- and
entering" or "destroying
tion, i.e., what particular offense public prop-
class
X offenses will be erty." "Petty theft,"
reduced to,however,
is suchcon-
that the reduced stitutes a reasonable may
offense lesser alternative
bear no
to burglary as thesituationally
obvious relation (neither sentence for petty
theft will often to
nor necessarily included) rangethebetween six
orig-
months and one
inally charged offense. The reductionyear in the county
jail and burglary
of burglary to petty theft regularlyisdoesannot ex-
carry higher
ample. The important relation be- than two years in the
tween the reducedstate prison. "Disturbing the
offense and peace" the
would be a thirty-day
original charge is such that the re- sentence offense.
duction from one While
to the the present
otherpurposesis makecon-
the exposition
sidered "reasonable." At of thisthis
calculus unnec-
point
essary,what
we shall only state it can be noted
seems and stressed
to be
that the particularinvolved
the general principle content of the re- in
duction does not necesarily corres-
deciding this reasonableness. The
pond to a relation
underlying premises between the original
cannot be ex-
and altered charge
plored at the present time,that couldasbe de-
that
scribed in either the analysis
would involve a political terms of necessary be-
or situational inclusion. Whatever the
yond the scope of the present report.
Both P.D. and D.A. are concerned to relation between the original and re-
obtain a guilty plea wherever possible duced charge, its essential feature re-
and thereby avoid a trial. At the same sides in the spread between sentence
likelihoods and the reasonableness of
time, each party is concerned that the
defendant "receive his due." The that spread, i.e., the balance it strikes

84.69.150.117 on Wed, 24 Mar 2021 16:33:51 UTC
Normal Crimes 263
between the defendant "getting

schoolyard" as a typical feature of
due" and at thesuchsame time
child molestations. The"gett
typical
character of
something less than he "child molesting so
might cases"th
he will plead does not stand or fall on the fact that
guilty."
The procedure "loitering
we around
want a schoolyard" is a
to clarif
now, at the risk feature
of of the way they
some are in fact
repetition,
the manner in which an instant case committed. It is not that "loitering
is examined to decide its membership around a schoolyard" as a statutorily
in a class of "crimes such as this" (the
referable behavior sequence is part of
category normal crimes). Let us starttypical "child molesting cases" but
with an obvious case, burglary. As the that "loitering around a schoolyard"
typical reduction for burglary is pettyas a socially distinct mode of commit-
ting child molestations typifies the
theft and as petty theft is neither situa-
tionally nor necessarily included in way such offenses are enacted. "Strictly
burglary, the examination of the in-speaking," i.e., under the auspices of
the statutory corpus delicti, "loitering
stant case is dclearly not undertaken to
decide whether petty theft is an ap- around a schoolyard," requires loi-
tering, around, a schoolyard; if one
propriate statutory description. The
concern is to establish the relation
loiters around a ball park or a public
recreation area, he "cannot," within
between the instant burglary and the
normal category "burglaries" and,a proper reading of the statute, be
having decided a "sufficient corres-
charged with loitering around a school-
yard. Yet "loitering around a school-
pondence," to now employ petty theft
as the proposed reduction. yard," as a feature of the typical way
In scrutinizing the present burglary such offenses as child molestations are
case, the P.D. seeks to establish that committed, has the status not of a de-
scription of the way in fact (fact,
"this is a burglary just like any other."
statutorily decided) it occurred or
If that correspondence is not estab-
lished, regardless of whether or not
typically occurs, but "the-kind-of-so-
cial-activity-typically -associated -with -
petty theft in fact was a feature of the
way the crime was enacted, the re- such-offenses." It is not its statutorily
conceived features but its socially
duction to petty theft would not be
proposed. The propriety of proposing relevant attributes that gives "loitering
around a schoolyard" its status as a
petty theft as a reduction does not de-
rive from its in-fact-existence in thefeature of the class "normal child
present case, but is warranted or notmolestations." Whether the defendant
loitered around a schoolyard or a ball
by the relation of the present burglary
to "burglaries," normally conceived. park, and whether he loitered or "was
In a case of "child molestation" passing by," "loitering around a school-
(officially called "lewd conduct withyard"a as a reduction will be made if
minor"), the concern is to decide theifdefendant's activity was such that
"he was hanging around some public
this is a "typical child molestation
case." While "loitering around a or another" and "was the kind
place
schoolyard" is frequently a featureofofguy who hangs around school-
the way such crimes are instigated,yards." As a component of the class of
normal child molestation cases (of the
establishing that the present defendant
did in fact loiter around a schoolyard
variety where the victim is a stranger),
"loitering around a schoolyard" typi-
is secondary to the more general ques-
fies a mode of committing such of-
tion "Is this a typical child molesta-
fenses, the class of "such persons who
tion case ?" What appears as a contra-
do such things as hang around school-
diction must be clarified by examining
the status of "loitering around a and the like." A large variety of
yards

84.69.150.117 on Wed, 24 Mar 2021 16:33:51 UTC
264 SOCIAL PROBLEMS
actual offenses could thus be nonethe- urban places, a public defender occu-
less reduced to "loitering" if, as kinds pying a place alongside judge and
of social activity, "loitering," con- prosecutor as a regular court employee.
ceived of as typifying a way of life, In the county studied, the P.D. mans a
pattern of daily activity, social psy- daily station, like the public prose-
chological circumstances, etc., charac- cutor, and "defends" all who come
terized the conduct of the defendant. before him. He appears in court when
The young P.D. who would object court begins and his "clientele," com-
"You can't reduce it to 'loitering'-he posed without regard for his prefer-
didn't really 'loiter,' " would be repri- ences, consists of that residual category
manded: "Fella, you don't know how of persons who cannot afford to bring
to use that term; he might as well have their own spokesmen to court. In this
'loitered'-it's the same kind of case county, the "residual" category ap-
as the others." proximates 65 per cent of the total
Having outlined the formal me- number of criminal cases. In a given
chanics of the guilty plea disposition, year, the twelve attorneys who com-
I shall now turn to depict the routine prise the P.D. Office "represent" about
of representation that the categories 3,000 defendants in the municipal and
of crime, imbued with elaborate superior courts of the county.
knowledge of the delinquent social While the courtroom encounters of
structure, provide for. This will entail private attorneys are brief, businesslike
a brief examination of pertinent organ- and circumscribed, interactionally and
izational features of the P.D. system. temporally, by the particular cases that
bring them there, the P.D. attends to
PUBLIC "DEFENSE"
the courtroom as his regular work
Recently, in many communities, the
place and conveys in his demeanor his
burden of securing counsel hasplace beenas a member of its core personnel.
taken from the defendant.6 As the While private attorneys come and
accused is, by law, entitled to the aid leave court with their clients (who
of counsel, and as his pocketbook isare generally "on bail"), the P.D.
often empty, numerous cities have feltarrives in court each morning at nine,
obliged to establish a public defender takes his station at the defense table,
system. There has been little resistanceand deposits there the batch of files
to this development by private attorneysthat he will refer to during the day.
among whom it is widely felt that theWhen, during morning "calendar,"8 a
less time they need spend in the crimi-private attorney's case is called, the
nal courts, where practice is least P.D. steps back from the defense table,
prestigeful and lucrative, the better.7leaving his belongings in place there,
Whatever the reasons for its de- and temporarily relinquishes his station.
velopment, we now find, in many No private attorney has enough de-
6 For general histories of indigent defendants in a given court on a given
fender systems in the United States, see day to claim a right to make a desk
The Association of the Bar of the City of of the defense table. If the P.D. needs
New York, Equal Justice for the Accused, some information from his central of-
Garden City, New York: 1959; and E. A.
Brownell, Legal Aid in the United States, fice, he uses the clerk's telephone, a
Rochester, New York: The Lawyers Co- privilege that few private lawyers feel
operative Publishing Company, 1951. at home enough to take. In the course
7 The experience of the Public Defender
system is distinctly different in this regard 8 "Calendar part" consists of that
from that of the Legal Aid Societies, which, portion of the court day, typically in the
I am told, have continually met very strong mornings, when all matters other than trials
opposition to their establishment by local are heard, e.g., arraignments, motions, con-
bar associations. tinuances, sentencing, probation reports, etc.

84.69.150.117 on Wed, 24 Mar 2021 16:33:51 UTC
Normal Crimes 265
rooma
of calendar work, to courtroom
lawyer throughout
willtheoften
course
have occasion to of their proceedings
request (both
a delay o
"continuance" offrom
several days
municipal to superior until th
courtrooms
for client's
next stage of his felony cases, and proceedings
from one muni-
The private attorney
cipal courtroom toaddresses
another when there th
prosecutor via isthe judge
a specialization to
of courts, e.g., reques
jury,
such an alteration;
non-jury,the P.D.
arraignment, etc.), talks
the P.D. di
rectly over to the D.A.:
sees defendants only at those places
Private attorney: in
"Iftheir paths prosecutor
the when they appear infinds
the courtHonor,
it convenient your he is manning.myA givenclient
de-
would prefer tofendant
have mayhis preliminary
be "represented" by one
hearing on Monday, the 24th."
P.D. at arraignment, another at pre-
Judge: "Is that date suitable to the dis-
trict attorney?" liminary hearing, a third at trial and a
Prosecutor: "Yes, fourth
your whenhonor."
sentenced.
At "Thank
Private attorney: the first interviewyou,
with a clientyour
Honor."
(initial interviews occur in the jail
Public Defender: "Bob (D.A.), how where attorneys go, en masse, to "pick
about moving Smith's prelim up toup new defendants" in the afternoons)
the 16th ?"
a file is prepared on the defendant.
Prosecutor: "Well, Jim, we've got Jones
on that afternoon." In each file is recorded the charge
Public Defender: "Let's see, how's the brought against the defendant and,
22nd?"
among other things, his next court
Prosecutor: "That's fine, Jim, the 22nd."
date. Each evening attorneys return
new files to the central office where
If, during the course of a proceeding,
secretaries prepare court books for
the P.D. has some minor matter to
each courtroom that list the defendants
tend to with the D.A., he uses the
time when a private attorney is due
ad- to appear in a given court on a
dressing the bench to walk overgiven
to day. In the mornings, attorneys
the prosecutor's table and whisper take
his the court books from the office
and remove from the central file the
requests, suggestions or questions. The
files of those defendants due to ap-
P.D. uses the prosecutor's master calen-
dar to check on an upcoming court pear in "their court" that day.
date; so does the D.A. with the P.D.'s.There is little communication be-
The D.A. and P.D. are on a first name tween P.D. and client. After the first
basis and throughout the course ofinterview,
a the defendant's encounters
with the P.D. are primarily in court.
routine day interact as a team of co-
workers. Only under special circumstances (to
While the central focus of the pri- be discussed below) are there contacts
vate attorney's attention is his client, between lawyers and defendants in the
the courtroom and affairs of court jail before and after appearances in
constitute the locus of involvements court. The bulk of "preparation for
for the P.D. The public defender and court" (either trials or non-trial
public prosecutor, each representativesmatters) occurs at the first interview.
of their respective offices, jointlyThe attorney on station, the "attending
handle the greatest bulk of the court'sattorney," is thus a stranger to "his
daily activity. client," and vice versa. Over the course
The P.D. office, rather than assign of his proceedings, a defendant will
its attorneys to clients, employs the have several attorneys (in one instance
arrangement of stationing attorneys in a man was "represented" by eight
different courts to "represent" all those P.D.'s on a charge of simple assault).
who come before that station. As de- Defendants who come to court find a
fendants are moved about from court- lawyer they don't know conducting

84.69.150.117 on Wed, 24 Mar 2021 16:33:51 UTC
266 SOCIAL PROBLEMS
their trials, entering their

or, age, style of talk, waymotions,
of attending
making their pleas, to the
andoccasion of his incarceration,
the rest. Often etc.,
there is no introduction of P.D. to provides the P.D. with an initial sense
defendant; defendants are preparedof tohis place in the social structure.
expect a strange face: Knowing only that the defendant is
charged with section 459 (Burglary)
Don't be surprised when you see another
P.D. in court with you on Tuesday. You
of the penal code, the P.D. employs
just do what he tells you to. He'll know
his conception of typical burglars
all about your case.
against which the character of the
P.D.s seldom talk about particular
present defendant is assessed.
defendants among themselves. When. . he had me fooled for a while. With
they converse about trials, the facts of
that accent of his and those Parliaments
he was smoking I thought something
cases, etc., they do so not so much for
briefing, e.g., "This is what I think was strange. It turned out to be just
another burglary. You heard him about
you should do when you 'get him',"
New York and the way he had a hold on
but rather as small talk, as "What have
him there that he was running away
you got going today." The P.D. does from. I just guess N.Y. is a funny place,
you can never tell what kinds of people
not rely on the information aboutget a involved in crimes there.
case he receives from a previous at-
tending attorney in order to know The initial fact of the defendant's
how to manage his "representation." "putting in a request to see the P.D."
establishes his lower position in the
Rather, the file is relied upon to furnish
all the information essential for class structure of the community:
making an "appearance." These ap-
We just never get wealthier people here.
pearances range from morning calen- They usually don't stay in jail overnight
dar work (e.g., arraignments, motions, and then they call a private attorney.
The P.D. gets everything at the bottom
continuances, etc.) to trials on offenses
of the pile.
from drunkenness to assault with a
deadly weapon. In the course of a Searching over the criminal history
routine day, the P.D. will receive his(past convictions and arrests) the de-
batch of files in the morning and,fendant provides when preliminary
seeing them for the first time that day,face sheet data is recorded in the file,
conduct numerous trials, preliminary the P.D. gets a sense of the man's
hearings, calendar appearances,typical pattern of criminal activity. It
sentencing proceedings, etc. They do is not the particular offenses for which
not study files overnight. Attorneys he is charged that are crucial, but the
will often only look over a file a half constellation of prior offenses and the
hour or so before the jury trial begins.sequential pattern they take:
THE FIRST INTERVIEW I could tell as soon as he told me he
had four prior drunk charges that he
As the first interview is often the was just another of these skid row bums.
You could look at him and tell.
only interview and as the file prepared
there is central for the continuing When you see a whole string of forgery
counts in the past you pretty much know
"representation" of the defendant by
what kind of case you're dealing with.
other attorneys, it is important to You either get those who commit an
examine these interviews and the file's occasional forgery, or those that do
contents. From the outset, the P.D. at- nothing but. . . . With a whole bunch
tends to establishing the typical char- of prior checks (prior forgery con-
acter of the case before him and there- victions) you can bet that he cashes little
ones. I didn't even have to ask for the
by instituting routinely employed amount you know. I seldom come across
reduction arrangements. The defend- one over a hundred bucks.
ants appearance, e.g., his race, demean- From the looks of him and the way he

84.69.150.117 on Wed, 24 Mar 2021 16:33:51 UTC
Normal Crimes 267
said "I wasn't doing the street about a block away

anything, justfrom play
ing with her," you the park and thisits
know, cop pulls
the up usu
kind of thing, justand
a there the same diddling
little little girl is, o
something. We can you
try to get
know, sitting it
in the back seatout o
a simple assault. with some dame. The cop asks me
to stick my head in the back seat
When a P.D. puts questions
and he asks the kid if I was the to th
defendant he is less concerned with one and she says yes. So he puts
me in the car and takes a state-
recording nuances of the instant event
ment from me and here I am in
(e.g., how many feet from the bar the joint. All I was doin was
were you when the cops came in, did playin with her a little .
you break into the back gate or theP.D.: (interrupting) ... O.K. I get the
front door), than with establishing its story, let's see what we can do. If
I can get this charge reduced to a
similarity with "events of this sort." misdemeanor then I would advise
That similarity is established, not by you to plead guilty, particularly
discovering statutorily relevant events since you have a record and that
wouldn't look too well in court
of the present case, but by locating the
with a jury.
event in a sociologically constructed
(the interview proceeded for an-
class of "such cases." The first ques- other two or three minutes and
tions directed to the defendant are of the decision to plead guilty was
the character that answers to them made)
either confirm or throw into question459
P.D.: Why don't you start by telling me
the assumed typicality. First questions
with ADWs are of the order: "How where this place was that you
broke into?
long had you been drinking before Def.: I don't know for sure . . . I think
this all started?"; with "child moles- it was on 13th street or something
tation cases": "How long were you like that.
P.D.: Had you ever been there before?
hanging around before this began?";
Def.: I hang around that neighborhood
with "forgery" cases: Was this the you know, so I guess I've been in
second or third check you cashed in the place before, yeah.
the same place?" P.D.: What were you going after?
Def.: I don't know, whatever there was
We shall present three short excerpts
so's I could get a little cash. Man,
from three first interviews. They all I was pretty broke that night.
begin with the first question asked P.D.: Was anyone with you?
after preliminary background data Def.:
is No, I was by myself.
P.D.:
gathered. The first is with a 288 (child How much did you break up the
place?
molestation), the second with a 459 Def.: I didn't do nothing. The back
(burglary) and the last with a 11530 window was open a little bit see
(possession of marijuana). Each inter- and I just put my hand in there
view was conducted by a different and opened the door. I was just
Public Defender. In each case the P.D. walking in when I heard police
comin so I turn around and start
had no information about the de- to run. And, they saw me down
the block and that was that.
fendant or this particular crime other
P.D.: Were you drunk at the time?
than that provided by the penal code Def.: I wasn't drunk, no, I maybe had a
number:
drink or two that evening but I
288 wasn't drunk or anything like that.
P.D.: O.K., why don't you start out by 11530
telling me how this thing got P.D.: Well Smith, why don't you tell
started ?
me where they found it (the
Def.: Well, I was at the park and all I marijuana) ?
did was to ask this little girl if Def.: I was driving home from the drug-
she wanted to sit on my lap for store with my friend and this cop
awhile and you know, just sit on car pulls me up to the side. Two
my lap. Well, about twenty guys get out, one of them was
minutes later I'm walkin' down wearing a uniform and the other

84.69.150.117 on Wed, 24 Mar 2021 16:33:51 UTC
268 SOCIAL PROBLEMS
was a plain clothes man. They (or with a view toward undermining
told us to get out of the car and
then they searched me and then
the assignment of a designation in an
my friend. Then this guy without anticipated trial). In the 288 instance,
the uniform he looked over into the P.D. interrupted when he had
the car and picked up this thing
enough information to confirm his
from the back floor and said some-
thing to the other one. Then he sense of the case's typicality and con-
struct a typifying portrayal of the
asked me if I had any more of the
present defendant. The character of
stuff and I said I didn't know
what he was talking about.the
So he
information supplied by the de-
wrote something down on a piece
fendant was such that it was specifi-
of paper and made me sign it.
Then he told my friend to go cally lacking detail about the particular
home and they took me down here occurrences, e.g., the time, place, what
to the station and booked me on
was said to the girl, what precisely
possession of marijuana. I swear I the defendant do or not do, his
did
didn't have no marijuana.
P.D.: You told me you were convicted "state of mind," etc. The defendant's
of possession in 1959. appearance and prior record (in this
Def.: Yeah, but I haven't touched any case
of the defendant was a fifty-five year
the stuff since then. I don't know
what it was doing in my car, butold white, unemployed, unskilled
I haven't touched the stuff since laborer, with about ten prior drunk
that last time. arrests, seven convictions, and two
P.D.: You ought to know it doesn't prior sex offense violations) was relied
make any difference whether or
not they catch you using, just soupon to provide the sense of the
as they find it on your possessionpresent occasion. The P.D. straight-
or in a car, or your house, or forwardly approached the D.A. and
something. arranged for a "contributing to the
Def.: Man, I swear I don't know how it
got there. Somebody must have delinquency of a minor" reduction. In
planted it there. the burglary case, the question, "Had
P.D.: Look, you know as well as I do you ever been there before ?", was
that with your prior conviction intended to elicit what was received,
and this charge now that you
could go away from here for five e.g., that the place was a familiar one
years or so. So just calm down a to the defendant. Knowing that the
minute and let's look at this thing place was in the defendant's neigh-
reasonably. If you go to trial and borhood establishes its character as a
lose the trial, you're stuck. You'll
be in the joint until you're 28
skid row area business; that the First
years old. If you plead to this oneFederal Bank was not entered has been
charge without the priors then weconfirmed. "What were you going
can get you into jail maybe, or aafter ?", also irrelevant to the 459 sec-
year or two at the most in the
joint. If you wait until the pre- tion of the penal code, provides him
liminary hearing and then they with information that there was no
charge the priors, boy you've had special motive for entering this estab-
it, its too late.
lishment. The question, Was anyone
Def.: Well how about a trial?
with you ?", when answered negatively,
(After ten minutes, the defendant
decided to plead guilty to one placed the event in the typical class of
charge of possession, before the "burglaries" as solitary, non-coordi-
date of the preliminary hearing) nated activities. The remaining ques-
Let us consider, in light of thetions were directed as well to confirm-
previous discussion, some of the fea- ing the typical character of the event,
tures of these interviews. and the adequacy of the defendant's
1. In each case the information account is not decided by whether or
not
sought is not "data" for organizing the P.D. can now decide whether
the
particular facts of the case forthe
de-
statutory definition of the contem-
plated reduction or the original charge
ciding proper penal code designations

84.69.150.117 on Wed, 24 Mar 2021 16:33:51 UTC
Normal Crimes 269
is satisfied. Its adequacy an "innocent pitch." The conceivable

is determined
by the ability with which
first the
question: "Did youP.D.
do it?",can
is
detect its normal character. The ac- not asked because it is felt that this
counts provided thus may have the gives the defendant the notion that
character of anecdotes, sketches, he can try an "innocent pitch":
phrases, etc. In the first instance, with I never ask them, "did you do it ?", be-
the 288, the prior record and the de- cause on one hand I know they did and
fendant's appearance, demeanor andmainly because then they think that they
style of talking about the event wascan play games with us. We can always
check their records and usually they have
enough to warrant his typical treat-a string of offenses. You don't have to,
ment.
though, because in a day or two they
2. The most important feature of change their story and plead guilty. Ex-
cept for the stubborn ones.
the P.D.'s questioning is the presup-
position of guilt that makes his pro- Of the possible answers to an opening
posed questions legitimate and answer-question, bewilderment, the inability
able at the outset. To pose the to answer or silence are taken to indi-
question, "Why don't you start by cate that the defendant is putting the
telling me where this place was that P.D. on. For defendants who refuse to
you broke into?" as a lead question, admit anything, the P.D. threatens:
the P.D. takes it that the defendant
Look, if you don't want to talk, that's
is guilty of a crime and that the crime
your business. I can't help you. All I
for which he is charged probably de- can say is that if you go to trial on this
scribes what essentially occurred. beef you're going to spend a long time
in the joint. When you get ready to tell
The P.D.'s activity is seldom geared
me the story straight, then we can see
to securing acquittals for clients. what
He can be done.
and the D.A., as co-workers in the
If the puzzlement comes because the
same courts, take it for granted that
the persons who come before the question is asked, e.g., "There
wrong
wasn't
courts are guilty of crimes and are to any fight-that's not the way it
be treated accordingly: happened," the defendant will start to
fill in the story. The P.D. awaits to see
Most of them have records as you can
see. Almost all of them have been if, how far, and in what ways the
instant case is deviant. If the de-
through our courts before. And the
police just don't make mistakes in this fendant is charged with burglary and a
town. That's one thing about-, we've middle class establishment was
got the best police force in the state.
burglarized, windows shattered,
As we shall argue below, the way large payroll sought after and a gu
defendants are "represented," (the used, then the reduction to petty thef
station manning rather than assignment generally employed for "norm
of counselors to clients), the way trials burglaries," would be more difficu
are conducted, the way interviews are to arrange.
held and the penal code employed-- Generally, the P.D. doesn't have to
all of the P.D.'s work is premised ondiscover the atypical kinds of cases
the supposition that people charged through questioning. Rather, the D.A.,
with crimes have committed crimes. in writing the original complaint, pro-
This presupposition makes such firstvides the P.D. with clues that the
questions as "Why don't you start by typical recipe, given the way the event
telling me where this place was .. ."occurred, will not be allowable. Where
reasonable questions. When the answer the way it occurs is such that it does
comes: "What place? I don't knownot resemble normal burglaries and
what you are talking about," the de-the routinely used penalty would re-
fendant is taken to be a phony, makingduce it too far commensurate with the

84.69.150.117 on Wed, 24 Mar 2021 16:33:51 UTC
270 SOCIAL PROBLEMS
way the crime occurred, the

often (as is the case D.A.
in burglary-to-
frequently chargespetty
various
theft) not situationally
situationally included.
included offenses, indicating
He summarized the office's to the
feeling:
P.D. that the procedure to employ
S.. in the old days, ten or so years ago,
here is to suggest "dropping" some
we didn't like to do it in front of the of
the charges, leaving the
judge. What originally
we used to do when we
made a deal wasas
charged greatest offense that it
the D.A. would
stands.
dismiss the original charge and write up
In the general casea new
hecomplaint
doesn't charge
altogether. That took a
all those offenses lot ofthat
time. We hadhe legally
to re-arraign him
all over again
might. He might charge back in the molest-
"child muni court
ing" and "loitering and around
everything. Besides,
a in the same
school-
courtroom, everyone used to know what
yard" but typically only
was going the
on anyway. greater
Now, we just ask
charge is made. The D.A.
for a change of pleadoes so
to the lesser so
charge
as to provide for a later regardless of whether its includedthat
reduction or not.
will appear particularly Nobody thinks
lenienttwice aboutin asking
that for
petty theft on burglary, or drunkenness
it seemingly involves on car a change
theft, or something in the
like that. It's
charge. Were he to charge just the way it'sboth
done. molest-
ing and loitering, he Some would befelt.
restrictions are obliged,
Assaultive
moreover, should the case come to
trial, to introduce evidence for both crimes (e.g., ADW, simple assault,
attempted murder, etc.) will not be re-
offenses. The D.A. is thus always con-
duced to or from "money offenses"
strained not to set overly high charges
(burglary, robbery, theft) unless the
or not situationally included multiple
latter involve weapons or some vio-
offenses by the possibility that the
lence. Also, victimless crimes (nar-
defendant will not plead guilty to acotics, drunkenness) are not reduced
lesser offense and the case will go to
to or from assaultive or "money of-
trial. Of primary importance is thatfenses," unless there is some factual
he doesn't charge multiple offenses so
relation, e.g., drunkenness with a fight
that the P.D. will be in the best posi-
might turn out to be simple assault
tion vis-A-vis the defendant. He thus reduced to drunkenness.
charges the first complaint so as to For most cases that come before
provide for a "setup." their courts, the P.D. and D.A. are
The alteration of charges must beable to employ reductions that are
made in open court. The P.D. requests formulated for handling typical cases.
to have a new plea entered: While some burglaries, rapes, narcotics
P.D.: Your honor, in the interests of violations and petty thefts, are insti-
justice, my client would like to gated in strange ways and involve
change his plea of not guilty to
the charge of burglary and enter atypical facts, some manipulation in
a plea of gulity to the charge of the way the initial charge is made
petty theft. can be used to set up a procedure to
Judge: Is this new plea acceptable to replace the simple charge-alteration
the prosecution?
D.A.: Yes, your honor. form of reducing.
The prosecutor knows beforehand that RECALCITRANT DEFENDANTS

the request will be made, and has Most of the P.D.'s cases that "have
agreed in advance to allow it. to go to trial" are those where the
I asked a P.D. how they felt aboutP.D. is not able to sell the defendant
making such requests in open court,on the "bargain." These are cases for
i.e., asking for a reduction from one which reductions are available, re-
offense to another when the latter isductions that are constructed on the
obviously not necessarily included andbasis of the typicality of the offense

84.69.150.117 on Wed, 24 Mar 2021 16:33:51 UTC
Normal Crimes 271
and allowabletransported
by tothe D.A.
the state and county The
are normal crimes committed
penal institutions. To confront a
"stubborn" defendants. "criminal" is, for D.A. and P.D., no
So-called "stubborn" defendants will special experience, nothing to tell their
be distinguished from a second class wives about, nothing to record as out-
of offenders, those who commit crimes standing in the happenings of the day.
which are atypical in their character Before "their court" scores of "crimi-
(for this community, at this time, etc.) nals" pass each day.
or who commit crimes which while
The morality of the courts is taken
typical (recurrent for this community,
for granted. The P.D. assumes that the
this time, etc.) are committed atypi-
D.A., the police, judge, the narcotics
cally. The manner in which the P.D.
agents and others all conduct their
and D.A. must conduct the representa-
business as it must be conducted and
tion and prosecution of these de- in a proper fashion. That the police
fendants is radically different. To
may hide out to deceive petty violators;
characterize the special problems thethat narcotics agents may regularly em-
P.D. has with each class of defendants,
ploy illicit entrapment procedures to
it is first necessary to point outfind
a suspects; that investigators may
general feature of the P.D.'s orienta-
routinely arrest suspects before they
tion to the work of the courts that has
have sufficient grounds and only later
hitherto not been made explicit. This
uncover warrantable evidence for a
orientation will be merely sketched
formal booking; that the police may
here.
beat suspects; that judges may be
As we noticed, the defendant's guilt "tough" because they are looking to
is not attended to. That is to say, the support for higher office elections; that
presupposition of guilt, as a presup- some laws may be specifically preju-
position, does not say "You are guilty" dicial against certain classes of persons
with a pointing accusatory finger, but -whatever may be the actual course
"You are guilty, you know it, I know of charging and convicting defendants
it, so let's get down to the business of -all of this is taken, as one P.D. put
deciding what to do with you." When it, "as part of the system and the way
a defendant agrees to plead guilty, he it has to be." And the P.D. is part of
is not admitting his guilt; when asked the team.
to plead guilty, he is not being asked, While it is common to overhear
"Come on, admit it, you know you private attorneys call judges "bastards,"
were wrong," but rather, "Why don't policemen "hoodlums" and prosecutors
you be sensible about this thing ?" "sadists," the P.D., in the presence of
What is sought is not a confession, but such talk, remains silent. When the
reasonableness. P.D. "loses" a case-and we shall see
The presupposition of guilt as a that losing is an adequate description
way of attending to the treatment of only for some circumstances-he is
defendants has its counterpart in the likely to say "I knew he couldn't win."
way the P.D. attends to the entire Private attorneys, on the other hand,
court process, prosecuting machinery, will not hesitate to remark, as one did
law enforcement techniques, and the in a recent case, "You haven't got a
community. fucking chance in front of that son-of-
For P.D. and D.A. it is a routinely a-bitch dictator." In the P.D. office,
there is a total absence of such con-
encountered phenomenon that persons
demnation.
in the community regularly commit
criminal offenses, are regularly brought The P.D. takes it for granted and
before the courts, and are regularly attends to the courts in accord with

84.69.150.117 on Wed, 24 Mar 2021 16:33:51 UTC
272 SOCIAL PROBLEMS
P.D. files, illustrate

the view that "what goes theon
termsin in which
this
suchgoes
business is what "stubborn" ondefendants
and are con-what
ceived:
goes on is the way it should be." It
is rare to hear a public defender
Def wants a trial, but he is dead. In voice
protest against a particular law,
lieu of a possible 995, DA agreed toproce-
put
note in his
dure, or official. One offile recommending
the attorneys a deal.
mentioned that he felt the new nar- This should be explored and encouraged
as big break for Def.
cotics law (which makes it mandatory
Chance of successful defense negligible.
that a high minimum sentence be Def realizes this but says he ain't going
served for "possession or sale of nar- to cop to no strong-arm. See if we can
cotics") wasn't too severe "considering set him straight.
that they wanted to give them the Dead case. Too many witnesses and . .
chair." Another indicated that the used in two of the transactions. How-
more rigid statute "will probably cureever, Def is a very squirmy jailhouse
a lot of them because they'll be in lawyer and refuses to face facts.
for so long." One P.D. feels that wire- Possibly the DA in Sup/Ct could be
persuaded into cutting her loose if she
tapping would be a useful adjunct totook the 211 and one of the narco counts.
police procedure. It is generally said, If not, the Def, who is somewhat recal-
citrant and stubborn, will probably de-
by everyone in the office, that ".. mand a JT (jury trial).
is one of the best cities in the state
when it comes to police." The routine trial, generated as it is
In the P.D.'s interviews, the de- by the defendant's refusal to make a
fendant's guilt only becomes a topiclesser plea, is the "defendant's fault":
when the defendant himself attempts
to direct attention to his innocence. What the hell are we supposed to do
with them. If they can't listen to good
Such attempts are never taken seriously reason and take a bargain, then it's their
by the P.D. but are seen as "innocent tough luck. If they go to prison, well,
they're the ones who are losing the trials,
pitches," as "being wise," as "not not us.
knowing what is good for him." De-
fendants who make "innocent pitches" When the P.D. enters the courtroom,
often find themselves able to convince he takes it that he is going to lose,
the P.D. to have trials. The P.D. is in e.g., the defendant is going to prison.
a professional and organizational bind When he "prepares" for trial, he
in that he requires that his "clients" doesn't prepare to "win." There is no
agree with whatever action he takesattention given to "how am I going
"on their behalf": to construct a defense in order that I
Can you imagine what might happen if can get this defendant free of the
we went straight to the D.A. with a deal changes against him." In fact, he
to which the client later refused to doesn't "prepare for trial" in any
agree? Can you see him in court scream-
"ordinary" sense (I use the term ordi-
ing how the P.D. sold him out? As it is,
we get plenty of letters purportingnary
to with hesitation; what preparation
show why we don't do our job. Judges for trial might in fact involve with
are swamped with letters condemning other
the than P.D. lawyers has not, to
P.D. Plenty of appeals get started this
my knowledge, been investigated.)
way.
For the P.D., "preparation for trial"
Some defendants don't buy the offer involves, essentially, learning what
"burglary cases" are like, what "rape
of less time as constituting sufficient
cases" are like, what "assaults" are
grounds for avoiding a trial. To others,
it appears that "copping out" is worselike. The P.D.'s main concern is to
than having a trial regardless of conduct
the his part of the proceedings
in accord with complete respect for
consequences for the length of sentence.
The following remarks, taken from
proper legal procedure. He raises ob-

84.69.150.117 on Wed, 24 Mar 2021 16:33:51 UTC
Normal Crimes 273
jections to improper scrutiny to decide the legitimacy

testimony; of
intro-
duces motions whenever they
their operations, and the communityseem
called for; demands his "client's will not be condemned for its segre-
gative practices against Negroes. The
rights" to access to the prosecution's
evidence before trial (through so-P.D.'s defense is completely proper, in
accord with correct legal procedure,
called "discovery proceedings"); cross
examines all witnesses; does not intro-
and specifically amoral in its import,
duce evidence that he expects will not
manner of delivery, and perceived im-
plications for the propriety of the
be allowable; asks all those questions
of all those people that he must in prosecution enterprise.
order to have addressed himself to In "return" for all this, the district
the task of insuring that the corpus
attorney treats the defendant's guilt in
delicti has been established; carefully
a matter-of-fact fashion, doesn't get
summarizes the evidence that has been
hostile in the course of the pro-
presented in making a closing argu- ceedings, doesn't insist that the jury
ment. Throughout, at every point, he or judge "throw the book," but rather
conducts his "defense" in such a
"puts on a trial" (in their way of
manner that no one can say of him to their daily tasks) in order
referring
"He has been negligent, there area minimum of strain, properly
to, with
grounds for appeal here." He system-
place the defendant behind bars. Both
atically provides, in accord with the and public defender thus
prosecutor
prescriptions of due process and thethe moral character of the
protect
fourteenth amendment, a completely
other's charges from exposure. Should
proper, "adequate legal representation."
the P.D. attend to demonstrating the
At the same time, the district at-
innocence of his client by attempting
torney, and the county which employs
to undermine the legitimate character
them both, can rely on the P.D. not operations, the prosecutor
of police
to attempt to morally degrade might
policefeel obliged in return to employ
officers in cross examination;devices
not toto degrade the moral char-
impeach the state's witnesses bythe P.D.'s client. Should the
acter of
trickery; not to attempt an exposition
D.A attack defendants in court, by
of the entrapment methods of narcotics
pointing to the specifically immoral
agents; not to condemn the community
character of their activities, the P.D.
for the "racial prejudice that produces
might feel obligated, in response, to
our criminals" (the phrase of a private
raise into relief the moral texture of
attorney during closing argument);
the D.A.'s and police's and commu-
not to challenge the prosecution of
nity's operations. Wherever possible,
"these women who are trying to eachraise
holds the other in check. But the
a family without a husband" (the
"check" need not be continuously held
statement of another private attorney
in place, or even attended to self con-
during closing argument on a welfare
sciously, for both P.D. and D.A. trust
fraud case); in sum, not to make an
one another implicitly. The D.A.
issue of the moral character of the
knows, with certainty, that the P.D.
administrative machinery of the local
will not make a closing argument that
courts, the community or the police.
resembles the following by a private
He will not cause any serious troubleattorney, from which I have para-
for the routine motion of the court
phrased key excerpts:
conviction process. Laws will not be If it hadn't been for all the publicity
challenged, cases will not be tried to that this case had in our wonderful local
test the constitutionality of procedures newspapers, you wouldn't want to throw
and statutes, judges will not be person- the book at these men.
ally degraded, police will be free from If you'd clear up your problems with

84.69.150.117 on Wed, 24 Mar 2021 16:33:51 UTC
274 SOCIAL PROBLEMS
the Negro in . of
. the instant case are "discovered"
. maybe you would
have cases like this in
over the your
course courts.
of hearing them in
(after sentencecourt.
was pronounced)
In this regard, the "information" Yo
honor, I just would like
that "comes to
out" is say
often as new one
to thi
-that I've never heard or seen such a
him
display of injustice as I've seen here inas to the jury.
Employing a common sense con-
this court today. It's a sad commentary
on the state of our community if people
ception of what criminal lawyers
like yourself pay more attention to the like in cross examination and
behave
local political machines than to the lives
argument, and the popular portrayal
of our defendants. I think you are guilty
of that, your Honor. of their demeanor and style of ad-
dressing adversary witnesses, the on-
(At this last statement, one of the
P.D.s who was in the courtroom
looker comes away with the sense of
having witnessed not a trial at all,
turned to me and said, "He sure is
but a set of motions, a perfunctorily
looking for a contempt charge").
carried off event. A sociological analy-
The P.D. knows how to conduct his
sis of this sense would require a
trials because he knows how to con-
systematic attempt to describe the
duct "assault with deadly weapons"
features of adversary trial conduct.
trials, "burglary" trials, "rape" trials,
and the rest. The corpus delicti here A NOTE ON SPECIAL CASES
provides him with a basis for asking To conduct trials with "stubborn"
"proper questions," making thedefendants, so-called, is no special
"proper" cross examinations, and
trouble. Here trials are viewed as a
pointing out the "proper" things to
"waste of time." Murders, embezzle-
jurors about "reasonable doubt." He
ments, multiple rape cases (several de-
need not extensively gather infor-fendants with one victim), large scale
mation about the specific facts of the
robberies, dope ring operations, those
instant case. Whatever is needed in the
cases that arouse public attention and
way of "facts of the case" arise in receive special notice in the papers-
the course of the D.A.'s presentation. these are cases whose normal features
He employs the "strategy" of directing are not constructed and for which,
the same questions to the witness as even were a guilty plea available, both
were put by the D.A. with added em- parties feel uncomfortably obliged to
phasis on the question mark, or an bring issues of moral character into
inserted "Did you really see .. .?" the courtroom. The privacy of the
His "defense" consists of attempting P.D.-D.A. conviction machinery
to "bring out" slightly variant aspects through the use of the guilty plea
of the D.A.'s story by questioning his can no longer be preserved. Only
own witnesses (whom he seldom inter- "normal defendants" are accorded this
views before beginning trial but who privacy. The pressure for a public
are interviewed by the Office's two hearing, in the sense of "bringing the
"investigators") and the defendant. public in to see and monitor the char-
With little variation the same ques- acter of the proceedings," must be
tions are put to all defendants charged allowed to culminate in a full blown
with the same crimes. The P.D. learns jury trial. There is a general preference
with experience what to expect as the in the P.D. office to handle routine cases
"facts of the case." These facts, in without a jury, if it must go to trial
their general structure, portray social at all. In the special case the jury must
circumstances that he can anticipatebe employed and with them a large
by virtue of his knowledge of the audience of onlookers, newspaper men,
normal features of offense categories and daily paper coverage must be
and types of offenders. The "details" tolerated.

84.69.150.117 on Wed, 24 Mar 2021 16:33:51 UTC
Normal Crimes 275
To put on a fight torneys

is a hasdiscomforting
revealed that categories of
task for persons whocrime, regularly work to
rather than being "unsuited"
together as a team. Every
sociological effort
analysis, is
are so employed
made to bind off the event
as to make of a
their analysis spe-
crucial to em-
cial case by heightened interaction
pirical understanding. out-
What categories
side the courtroom. In the routine of crime are, i.e., who is assembled
case, with no jury or at least no press
under this one or that, what constitute
coverage, the whole trial can be
the behaviors inspected for deciding
handled as a backstage operation. With
such matters, what "etiologically signif-
special cases there can be no byplay
icant" matters are incorporated within
conversation in the courtroom between
their scope, is not, the present findings
D.A. and P.D., and no leaving court indicate, to be decided on the basis of
together, arm in arm. Metaphorically, an a priori inspection of their formally
two persons who regularly dance to- available definitions. The sociologist
gether must now appear, with the who regards the category "theft" with
lights turned on, to be fighting. penal code in hand and proposes nec-
The P.D. Office reserves several of essary, "theoretically relevant" revi-
its attorneys to handle such cases. By sions, is constructing an imagined use
keeping the regular personnel away of the penal code as the basis for his
from particular courtrooms, their rou- criticism. For in their actual use, cate-
tine interactions with the D.A. can be gories of crime, as we have reiterated
properly maintained. An older, more continously above, are, at least for this
experienced attorney, from each side, legal establishment, the shorthand ref-
comes to court to put on the show. erence terms for that knowledge of
The device of so handling the assign- the social structure and its criminal
ment of attorneys to cases serves to events upon which the task of practi-
mark off the event as a special occasion, cally organizing the work of "represen-
to set it outside the regular ordering tation" is premised. That knowledge
of relationships that must resume when includes, embodied within what bur-
the special, and dreaded, case becomes glary, petty theft, narcotics violations,
a statistic in the penal institution child molestation and the rest actually
records. stand for, knowledge of modes of
With the special cases, the client- criminal activity, ecological characteris-
attorney assignment procedure is insti- tics of the community, patterns of
tuted. The head of the P.D. Office, daily slum life, psychological and so-
along with a coterie of older attorneys,cial biographies of offenders, criminal
goes to the first interview in the jail, histories and futures; in sum, practi-
and these same attorneys, or some of cally tested criminological wisdom. The
them, take over the case and stay with operations of the Public Defender
it, handling its development with kid system, and it is clear that upon com-
gloves. The concern to provide "ade-parative analysis with other legal
quate legal representation" may be "firms" it would be somewhat distinc-
relegated to a back seat. Both P.D. and tive in character, are routinely main-
D.A. must temporarily step outside tained via the proper use of categories
their typical modes of mutual conduct of crime for everyday decision making.
and yet, at the same time, not perma-
The proprieties of that use are not de-
nently jeopardize the stability of their scribed in the state criminal code, nor
usual teamlike relationship.
are the operations of reduction, de-
SOME CONCLUSIONS tailed above.
An examination of the use of the A cautionary word is required. It
will appear as obvious that the system
penal code by actually practicing at-

84.69.150.117 on Wed, 24 Mar 2021 16:33:51 UTC
276 SOCIAL PROBLEMS
of providing "defense" to
chosen as an example only.indigent
It may well
persons describedbe above
that, in certain forms of
is not legal
repre-
sentative of criminal defense work work, the penal code as a statutory
generally. How the penal code is em-document is accorded a much different
and more "rigorous" scrutiny. The
ployed, i.e., how behaviors are scru-
tinized under its jurisdiction and dis-legalistic character of some criminal
pensations made via operations per- prosecutions leads one to suspect that
the "letter of the law" might constitute
formed on its categories, in other kinds
of legal establishments, has not beena key reference point in preparing for a
investigated here. The present case, criminal defense, aiming for acquittal,
albeit apparently specialized, was or changing a statutory regulation.
POLICEMAN AS PHILOSOPIIER, GUIDE AND FRIEND
ELAINE CUMMING, IAN CUMMING AND LAURA EDELL

Mental Health Research Unit, Syracuse, New York
This is the fourth report from a In earlier reports, we have adopted

the convention of looking at social
group of studies designed to throw
agents and agencies in terms of their
some light upon the division of labor
among the social agents whose central
relatively supportive or relatively con-
role is concerned with maintaining
trolling character. We have assumed
that it is difficult for an agent to exer-
social integration by controlling various
forms of deviant behavior.' cise both support and control at the
same time and that any agent tends,
This research was supported in part by
therefore, to specialize in one or the
NIMH Grant M-4735, Principal Investiga- other aspect of the integrative process.2
tor, Elaine Cumming. Acknowledgment is
made of the assistance of the staff of the Even when he is specialized, such an
Mental Health Research Unit and its Di- agent may be considered controlling
rector, Dr. John Cumming. Our particular
when he is compared with some
thanks are extended to the officers and men
agents, and supportive when compared
of the Syracuse Police Force whose cooper-
with others. Thus, the probation officer
ation made this study possible. At the time
of the field work, Chief Harold Kellyisex-
more on the client's side, that is,
tended his cooperation to us; since his
supportive to him, than the policeman,
retirement, Chief Patrick Murphy has
but less so than the psychiatrist.
helped us to interpret findings, although
we are solely responsible for the conclu-
sions drawn. from studies of the division of labor in
1 Earlier reports include: Elaine Cum- small groups (see, for example, Bales'
ming, "Phase Movement in the Support and "The Equilibrium Problem in Small
Groups," in T. Parsons and R. F. Bales,
Control of the Psychiatric Patient," Journal
of Health and Human Behavior, 3 (Win- Working Papers in the Theory of Action,
Glencoe: The Free Press, 1953), and upon
ter, 1962), pp. 235-241; Isabel McCaffrey,
Elaine Cumming and Claire Rudolph, theories of role conflict [see, for example,
"Mental Disorders in Socially Defined W. J. Goode, "A Theory of Role Strain,"
Populations," American Journal of PublicAmerican Sociological Review, 25 (August,
Health, 53 (July, 1963), pp. 1025-1030; 1960), pp. 483-495.] At another level of
Elaine Cumming and Charles Harrington, analysis, of course, we all control and
"Clergyman as Counselor," American Jour- support one another--by showing disap-
nal of Sociology, LXIX (November, proval when our expectations are not met
1963), pp. 234-243. and by friendliness, responsiveness, under-
2 This assumption is derived in partstanding and sympathy when they are.

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Normal Crimes: Sociological Features of the Penal Code in a Public Defender Office

Author(s): David Sudnow

Stable URL: https://www.jstor.org/stable/798932

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Two stances toward the utility

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illegally (e.g., by breaking

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the original charge.a minor," As we shall

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burglaries are reduced in the guilty

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Dope addicts do plainant,

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the type convictions

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criminological wisdom. His

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between the defendant "getting

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their trials, entering their

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said "I wasn't doing the street about a block away

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is satisfied. Its adequacy an "innocent pitch." The conceivable

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way the crime occurred, the

The prosecutor knows beforehand that RECALCITRANT DEFENDANTS

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P.D. files, illustrate

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jections to improper scrutiny to decide the legitimacy

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To put on a fight torneys

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POLICEMAN AS PHILOSOPIIER, GUIDE AND FRIEND

ELAINE CUMMING, IAN CUMMING AND LAURA EDELL

This is the fourth report from a In earlier reports, we have adopted

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