Thursday, October 22, 2009

Close Enough for Government Work, Or Not

When I get on a tear about the criminal justice system, someone usually asks me if it's just worthless or hopeless. I generally give roughly the same answer.
It comes close enough to right often enough that it doesn't just implode.

Some factually innocent people are convicted of crimes. Some factually guilty people are acquitted. And while we don't know the percentages, we know that in general they're close enough for the system to survive the mistakes. Most people who are convicted of crimes - whether by trial or plea - did something reasonably close to the offense for which they were convicted.
If that's as good as it gets, its not very good. And the system treats some people worse than others.

The poor, the homeless, and the mentally ill (too often those are the same people) do worse than those with money, established residences, and Prozac. They're charged with crimes more - serious crimes, but also the seemingly petty ones that grow from just being annoying to the establishment. Anatole France noted that
[t]he law, in its majestic equality, forbids the rich as well as the poor, to sleep under bridges, to beg in the streets and to steal bread.
He didn't need to add that the rich rarely seem to be hauled into court for doing those things. The poor might as well rent cots.

And once they're arrested, they poor have a fundamentally different legal system. They are more likely to sit in jail than their wealthier cousins because they cannot make even minimal bond. Their children go into foster care or end up with relatives who are, likely, themselves overburdened. They lose their cars because they can't make payments because they lost their jobs because they can't make it to work because they are incarcerated and so if they do eventually make bond, they have a harder time finding work. Because they lose their jobs, they lose their homes.

For want of a nail. And this without ever being convicted of anything.

They have overburdened and underpaid and underresourced public defenders or appointed counsel who don't have time to meet with them and don't have the means or energy left actually to investigate comparatively minor cases. So they are processed rather than represented in any meaningful way. But what are you going to do if you're in that position. You're going to plead because there's really no other alternative except to maybe languish in jail while you wait. And those convictions turn out to be consequential when it's time to seek a job or get a loan to go to school or when they get arrested again for something - even if it's something comparatively minor.

Sometimes the judges try to help, but their courtrooms are really fiefdoms where the judge, her staff, a prosecutor, a public defender or two, and a bunch of regular lawyers hang out. They know each other, almost live together, though always paying fealty. Some of those judges, I repeat, try to help. They circumvent the system to do what seems fair. But that comes back at them, because the rules matter, and being fair isn't one of the rules. Besides, your version of fair and mine may not be the same. So we live and die by the rules and the formulas. But those push processing rather than representing. And those shortcuts and creative sentences might just violate the Constitution as well as they violate some arbitrary procedural rule.

Because especially for the poor and at the misemeanor level, rough justice and rule-based justice aren't really justice at all too much of the time.

That's the first and quite extraordinary half of Amy Bach's new book, Ordinary Injustice: How America Holds Court. Her point is simple, profound, and clearly right. This is the thesis:
[I]t takes a community of legal professionals to let a sleeping lawyer sleep.
The reference is not only to Joe Frank Cannon who snoozed, literally, during the trial that sent his client, Calvin Burdine, to death row. It's to the other lawyers (and sadly, there are other lawyers) who've slept while in trial. And its to the culture that allows the trial to go on anyway.

In four chapters Bach focuses on four communities and then on a different problem in each.

She begins in Greene County, Georgia, where the contract public defender is so overwhelmed that he provides virtually no representation, doesn't even make it into the courtroom to be with his clients while they're pleading to deals they don't know about and never approved. Could he do better? Maybe. When he's relocated to a job with some time and focus and resources he proves able and committed. He thinks he was before and doesn't get what he didn't do. But neither did the judge or the prosecutor or anyone else except maybe a few unhappy clients. And nobody paid any attention to them.

From Georgia, Bach takes us to Troy, New York, where a local judge locks people up for no reason except that it feels right to him. He pleads them guilty without telling them, denies them counsel, but then doesn't send them to prison. He doesn't do this all the time, and he's not doing it because he's crazy or evil. It's his mix of scared straight and rough justice. Of course, it's also thoroughly unconstitutional.

That's half the book, and as I said, it's extraordinary. It's strength and power come from good stories, righteous anger coupled with a reformer's zeal, and a basic sense of recognition. What happens in Greene County, Georgia probably happens routinely in New York City and Salt Lake City, in Houston and Hilo. And in every small village and large town in between. There are exceptions, of course, but they are the exceptions. That's the point. The rogue judge in Troy, New York is less ubiquitous, but anyone who's spent much time in our nation's courts has seen the type.

The second half of the book is, I think, less successful.

In Quitman County, Mississippi too many cases, even some terrible crimes, don't get prosecuted. It's not racism, Bach concludes, and it isn't about the victims' social class or gender (though domestic violence cases are apparently never pursued). Rather, the problem is an understaffed prosecutor who won't pursue cases he can't win at trial and a culture of miscommunication between that prosecutor and the local police. Maybe that's how it works in Quitman. But it's hardly the norm. The norm is overprosecution not under. And the norm is that when cases don't get pursued it is about race and class and gender. And when a prosecutor doesn't go after domestic violence cases today, it's far more likely because he (pretty much always a he) doesn't think that it's any big deal for a man to beat up the woman he lives with.

Finally, Bach heads for Chicago to explore how a wrongful conviction occurs. As in Quitman County, she gets side-tracked and misses the story. She says that prosecutors simply shouldn't pursue cases that they don't believe in, and they shouldn't believe in cases that aren't strong. Well, yeah. But the problem is deeper. It goes back to race and class (it always does), but then it looks at police who bury evidence and prosecutors who hide evidence. Bach recognizes that for some prosecutors it's win at any cost, but she doesn't get the extent of outright cheating to do it. It's not just wilfull blindness. It's active bad faith. And when it isn't that, it's wilfull blindness. And when it isn't that, it's the cops.

And, of course, it's how you get there. Eyewitnesses, even honest ones, are way too often wrong. Confessions are functionally coerced even if the law doesn't consider them coerced. More to the point, they're too often false. Forensic evidence isn't always present, and when it is it's frequently mangled. And then there's bad lawyering and underresourced defense counsel and, finally, a system that despite the legal fiction that defendants start the day with a presumption of innocence is really built around the assumption that, as former Attorney-General Ed Meese once said,
If a person is innocent of a crime, then he is not a suspect.
That's the relevant mindset.

Light, of course, is the great disinfectant. So Bach would have systems be more transparent. If only we knew, she says, we would enforce those Constitutional rights, insist that defense counsel do their job and provide them with the necessary resources. We'd catch the rogue judges, make the prosecutors do their job, and never again convict the innocent.

I favor transparency. But it will take more than that. At a minimum, it takes convincing people that close enough for government work isn't close enough for government work. That'll be a starting point. And, of course, for that there must be a wake-up, a call to arms.

For all it's flaws, Ordinary Injustice serves that end admirably. Let Amy Bach be the Paul Revere of criminal justice. Hers is an important book. It should be even better, but at this point, that's mostly a quibble.

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