Adversarial Bias and the Criminal Process : Infusing the Organizational Perspective on Criminal Courts with Insights from Behavioral Science

In The Process Is the Punishment, and in important works preceding it, Malcolm Feeley pioneered an organizational perspective on the criminal process. Rather than working toward one rational goal, he argued, lower court institutions were functional systems, orienting their work processes and relationships toward case processing and bargaining. This perspective also shaped his critique of Packer's two models, arguing that the models were not made of the same cloth; the due process model was normative and aspirational, while the crime control model described empirical findings in the field. Over the years, behavioral scientists, such as Kahneman and Tversky, have provided a wealth of evidence pointing to bounded rationality, biases and heuristics in human perception and behavior. In this paper, I argue that adversarial bias--the "tunnel vision" popularly critiqued in the context of prosecutorial misconduct and other miscarriages of justice--illuminates important aspects of Feeley's analysis. The rational goal model, as it turns out, isn’t all that rational; it is strongly infused with cultural cognition and perception problems. But its more realistic counterpart, the functional-systems model, does not always lead to a strong incentive to bargain; sometimes, adversarial bias does not temper the bureaucratic wheels of justice, but rather leads to dangerously rigid adversarial positions. I end by providing an updated model, showing the various different ways in which the process can become the punishment.