Ordinary Justice

How America Holds Court

By Amy Bach

[Available Here]

I got the idea to write Ordinary Injustice when I was reporting a series of articles about civil rights for The Nation magazine in 2001. I ended up sitting in a court in Greene County, Georgia where I saw a public defender plead 48 people guilty in just over a day. He simply conveyed the prosecutor's offer with little inquiry into the circumstances or facts of most of his clients' cases. In court, it was obvious that defendants didn't understand what was happening to them. One woman stopped in the middle of pleading guilty and said that she didn't realize she had agreed to do jail time (her case was continued until she had time to talk to her lawyer.) Afterwards, I asked the judge, the prosecutor and the defense attorney how they thought things went. And they all said the same thing: fine. The defense attorney said one thing I will never forget: "Nobody could say that they didn't have their day in court."

What astonished me, and what made me want to write a book, is that smart, committed hard-working professionals could routinely act in ways that fell short of what it is people in their positions were supposed to be doing. And not even realize that anything is missing. Or that their behavior had devastating consequences for peoples' lives. This notion became the seed for what I now call "ordinary injustice": mistakes had become routine and the legal professionals could no longer see their role in them.

I then decided to write a book on how regular people were being treated in the criminal justice system. I began sitting in various counties across the country and interviewing prosecutors, judges, defense attorney courts clerks, victims and their families to better understand our justice system. I learned how hard it is to see bad outcomes. In Quitman County, Mississippi, Miss Brenda Wiggs, the clerk of court, noticed that few cases were getting to grand jury. She started to keep lists of cases that the prosecutor decided to put aside. I used the list as a roadmap to see what was going wrong. What I found was that entire categories of crime had disappeared. For example, I met a woman who had been beaten up underneath a bridge by her boyfriend while her daughter and niece watched from inside a locked car. There was a medical report showing that she had stayed in the hospital for two days because of severe bruising to her back and head. She moved out of her boyfriend's house and never returned to live with him. Why wasn't her case prosecuted? It turned out that the prosecutor hadn't prosecuted a domestic violence case in 21 years, according to the court clerk's records. And that was just one category of case that had disappeared.

So why is it happening that lawyers can't see the problems in their courts? All too often, the legal professionals became so attached to the people they work with that they become more interested in maintaining relationships than performing the checks that made the adversarial system work. In Chicago I met a prosecutor who explained it best. Nearly two decades after he prosecuted two 17-year-old boys for raping and murdering a little girl, he had come forward and said that a mistake could have been made. Based on his tip, an investigation was launched and 27 years after the prosecution, the two boys, now men, were freed on the basis of DNA evidence. Why did that prosecutor wait so long to say something? When I asked him, he had many reasons. But the most important one was this: "It's hard to rock the boat when you're in the boat." What he was referring to is a community of law enforcement officials that had extremely strong bonds. The reaction of his former colleagues shows how intense these ties were. One said, "He is the most despicable human being that I know" because of the way he betrayed his friends by coming forward. Many former colleagues still claim that the boys are guilty even in the face of DNA evidence to the contrary.

Here's what these stories have in common: nobody is standing up to say that what looks like justice is actually not. And if no one is standing up nothing can be done about these individual patterns of lapses. Leading scholars agree that courts are the most unexamined public institution in America. This is why Ordinary Injustice ultimately calls for monitoring and measurement so that we can see the kinds of errors that are being made. There are actually metrics that have been developed to help identify these hard-to-see errors. The problem is that nobody is asking to improve our courts. So that when problems arise we misdiagnose them. We measure so many institutions in our society - the health of our schools, our hospitals the cleanliness of our drinking water. Why not our courts?