ABSTRACT
This 40-year anniversary review of The Process is the Punishment (TPP) examines how Feeley’s core arguments may be adapted to understand a criminal justice system indelibly associated with mass incarceration instead of one associated with dramatically expanded due process rights, as was true when Feeley wrote TPP. Specifically, the chapter highlights that Feeley’s “title track argument”—that pretrial processes are more punishing than lower court sentences, leading defendants to fail to appear or plead guilty—is even more useful now. Quality-of-life policing has increased the number of people charged with petty crimes. Mass incarceration, which includes bloated jail populations, has made pretrial detention more punishing and lengthened the time it takes to resolve cases, thereby increasing pretrial costs. Economic and business changes have made small bails harder to get and harder to afford. Combined, the result is a positive and reciprocal relationship between punishing pretrial processes and mass incarceration. Additionally, Feeley’s open system arguments can be usefully expanded to include police, who substantially influence pretrial punishment, and in some ways are encouraged to by changes in arrest-related jurisprudence, civil asset forfeiture, and revenue from fines and fees, among other changes.
