17 November 2009

Ordinary Injustice

Book rating scale:
5: Touched by God - a work which makes Shakespeare look infantile
4: Amazing - Instantly began rereading it and quoting it to friends
3: Worth Every Penny - a solid, interesting read, inspiring some thought and discussion with people who share similar interests
2: I Paid For It So I Finished Reading It - Some interesting parts but if I lose the book I'm not buying another copy
1: Couldn't Force My Way Thru and Burnt the Book in order to send it to the Hell it deserves
I rate this book a 3. It's worth a read for those involved in the criminal justice system.

This review of Ordinary Injustice is coming later than most. I think this is partly due to being asked to review it later than others. However, a greater part is my reaction to the book made it difficult for me to write the review.

The theme of the book is that injustice becomes part of the system not so much from a desire to do evil, but from improper acts by various actors which are not checked by other actors in the system. It's a theme which I agree with. She implies that it is a pervasive state throughout criminal justice systems in the US. This I also agree with. Every jurisdiction has something which could be fixed. By the examples she chooses, she further implies that the flaws are universally cataclysmic. This I don't agree with. It's been my experience that seriously flawed systems are usually endemic, not pandemic. As we are people, not God, none of us has ever succeeded in making a perfect justice system, but there are a few that come close, a great number in the gray area and those few which are so badly out of kilter that they stick out like sore thumbs. To be fair, there may be more terribly bad systems than amazingly good ones; still, the vast majority are going to be in the gray area where the flaws aren't shockingly obvious. In fact, if she wanted to make a strong case this is where it should have been made.

In the gray is where "ordinary injustice" would occur. An examination of similar jurisdictions wherein one consistently has sentences of three months more than the other for the same crimes would have shed more light on this. Is the prosecution in one jurisdiction pushing for higher sentences? Is the prosecution in another not pushing at all? Has the judge succumbed to political pressure from local merchants to impose higher sentences in theft cases? Has the judge succumbed to pressure not to put too many people in jail because the local jail only has 20 beds and the locality will have to pay to incarcerate any more in another locality's jail? Are the local defense attorneys just taking part in an assembly line so that they can get paid? Are the young turks over at the PD office putting principle over their clients' interests so that they end up getting larger sentences than they should? Various factors can cause a local jurisdiction to develop in a certain manner until "that's the way we've always done it here" becomes the reason things are still done that way. Of course, the problem with pursuing this is that it would take years of sociological research, tons of data, be very hard to pin down (because of so many possible causes), and - in the end - probably be about as exciting to read about as a discussion on variations in the mass production of bread.

Thus, we get Amy Bach's book, which is largely a discussion of cases of extraordinary injustices. She gives us four different examples from around the country: badly flawed indigent defense in a Georgia county; a judge removed from office in New York; a county in Mississippi wherein she believes not enough people are being prosecuted; and a Chicago case which she believes shows over exuberant prosecution. The Georgia and Mississippi cases are the strongest in her book, but they are also clearly aberrations. They aren't "ordinary." The Georgia case is based upon the lowest-bidder contract defender system which is probably the absolutely worst way to set up an indigent defense system. She makes the defender the focal point of her examination, making him the bad guy of the piece. The system was an assembly line wreck with plenty of blame to go around, primarily to the county leaders who didn't hire an adequate number of defenders or pay the defender enough to have sufficient support staff, but the defender's the bad guy. As you can tell, I wasn't too impressed with this. I also found Ms. Bach's astonishment that this attorney, once transplanted into a well-run office used the resources he was given and did a good job, a little disturbing. He knew what a boon the resources he had gained were and finally having them he used them.

Her strongest case, and most extraordinary, was the Mississippi non-prosecutions. I must admit to some surprise that this was included. It's not a usual part of the meta-narrative in these kinds of books. About the only thing more surprising would have been a section on over aggressive defense attorneys causing their clients to spend more time incarcerated because they were too caught up in the fight. In this case, the story is that a large number of charges aren't even being taken to the grand jury and therefore aren't being prosecuted. The prosecutor gives some reasons for this and his investigator seems to bear a good deal of the fault, but it's obvious that something is very wrong in that county. However, it's nearly impossible to shoehorn this into the "ordinary" category. Sure, there are jurisdictions where the LEO's grumble a little and there are always citizens who are upset because a prosecutor's office declines to prosecute certain cases, but it's not often the norm (if for no other reason than that most places could vote the bum out).

We also get a story in which a New York judges is removed from his bench because he failed to tell some defendant's of their right to an attorney and he placed people in a position of having to plead guilty or being held with a bond too high to make until their trial date. Now, it's always hard to get a good picture of what's going on with a judge because few people who practice law in his courtroom are going to say things publicly which might get them in trouble with the judge if he's not dethroned. Still, the case as presented wasn't different than what might be seen in any court. A defendant who "doesn't remember" anything, including his lengthy record, at arraignment gets a high bond. People choose whether to plead to time served (or less) in order to get out of jail prior to the date that all the witnesses could be brought to court for the trial. The one thing that was happening was that the judge was not giving everyone an attorney. I don't recall a statistic telling us the number of these cases over a certain period of time, but even in one case it would be clearly wrong. Still, with the case as presented (who knows what was actually going on and being said behind the scene), it looked like something where the judge should have gotten a warning and some training - probably even had another judge observe his court for a period of time - not something where the judge should have been removed. I think the problem here was that the demanded an open hearing and that he was being too honest about the way things actually work; as one of the people interviewed pointed out, this appears to be the reason he was actually removed. This was Ms. Bach's strongest case for "ordinary" injustice. A judge, apparently with a pro-defense reputation, sitting in his courtroom and on occasion sacrificing justice for efficiency.

The last case, the Chicago murder. I shan't go too far into this one except to say that, as I read through it, I realized that it was all spin. It was obviously a hard fought case and her assertion that it shows overzealous prosecution could have been spun exactly 180 degrees and argued that this is a case which shows how lengthy, almost never ending appellate processes can lead to muddling of the evidence enough to allow a man found guilty to go free without an actual showing of non-guilt. It can be argued either way and doesn't help her meta-argument.

In the end, I think Ms. Bach has made a good try in her first book. I think she would have been better served to have concentrated on one of the stories and written an entire book on it. Each story cried out for further exploration rather than being crammed into the argument of this book. As well, I was bothered by the amount of credence she seemed to give people whose self interest was to make the primary person in each section look bad. Maybe this is just the cynicism hammered into me after 10 years of practicing criminal law. In the end it's an average book which those interested in this area should find interesting, even if they disagree with it.


Anonymous said...


Anonymous said...

This is a brilliant book. I think you missed the boat on Chicago. Bach manages to show the collapse of adversarialism and its antithesis in a compelling way that captures the consequences for regular citizens.

It will define our era much as Gideon's Trumpet.

If you're community has a court, you should read this book.

Ken Lammers said...

OK, who are you? The publicist?

Flash Gordon said...

Here is an injustice: A young black man is charged with second degree murder when he came out the winner in a gun fight. He is a clean cut college student with no criminal record, the guy who lost the fight was a gang banger with a long criminal history and gang tattoos.

Defendant is represented by a female public defender who has a maternal instinct toward him. His defense is self defense. Problem is, the facts fairly clearly show him to have been the initial aggressor, which will preclude self defense by statute. But because of the disparity between his record and the victim's, the prosecution offers manslaughter and 3-5 years.

The female public defender believes so strongly in his good looks and clean record, she thinks the jury will ignore the initial aggressor facts. They don't, even though many of them say later that they would have liked to but the judge's instructions were clear. The come back with the only thing left available, conviction for murder 2. Sentence is 25 years by statute.

That's an injustice and it's the public defender that caused it, IMHO.