Ordinary Injustice: Q and A with Amy Bach
A few years ago, I sat on a jury for the trial of a young kid who had been charged with possession of a handgun. For the most part, the case was unremarkable, except for the fact that the judge fell asleep during some key testimony. The idea that a judge would snooze during a trial isn’t particularly shocking. Sadly, stories of judicial misconduct are pretty familiar. Public defenders who drink on the job. Prosecutors who force confessions. In her crusading book Ordinary Injustice, lawyer Amy Bach examines this trend and reveals the nation’s criminal justice system to be “so deeply compromised that it constitutes a menace to the people it is designed to serve.” The book is detailed and sweeping and ultimately a massive indicment of the nation’s judical process. But the book isn’t preachy or academic. It remains a good read. “Most compelling is her portrayal of the people hurt in this system—the victims of crimes, the falsely convicted and the defenders, prosecutors and judges whose own humanity is undermined when they lose sight of the justice they supposedly serve,” wrote Publisher’s Weekly. I emailed Bach some questions about her book as well as recent efforts in Congress to reform…
Ulrich Boser
A few years ago, I sat on a jury for the trial of a young kid who had been charged with possession of a handgun. For the most part, the case was unremarkable, except for the fact that the judge fell asleep during some key testimony. The idea that a judge would snooze during a trial isn’t particularly shocking. Sadly, stories of judicial misconduct are pretty familiar. Public defenders who drink on the job. Prosecutors who force confessions.

In her crusading book Ordinary Injustice, lawyer Amy Bach examines this trend and reveals the nation’s criminal justice system to be “so deeply compromised that it constitutes a menace to the people it is designed to serve.” The book is detailed and sweeping and ultimately a massive indicment of the nation’s judical process. But the book isn’t preachy or academic. It remains a good read. “Most compelling is her portrayal of the people hurt in this system—the victims of crimes, the falsely convicted and the defenders, prosecutors and judges whose own humanity is undermined when they lose sight of the justice they supposedly serve,” wrote Publisher’s Weekly.

I emailed Bach some questions about her book as well as recent efforts in Congress to reform the nation’s criminal justice system.

How did you get interested in this story?

I got the idea to write this book when I was reporting a series of civil rights articles for the Nation magazine in 2001. I went to Greene County, Georgia and saw a public defender plead 48 cases in two days. In court, I saw people stop in the middle of pleading guilty and say, “Wait, I didn’t know I was going to jail,” or simply start to sob and say that they didn’t understand what was happening to them. When I asked the prosecutor, judge and defense attorney how they thought it was going, they basically all said the same thing: fine. The public defender said this one remark 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 how smart, committed, hard-working professionals could routinely act in ways that fall short of what it is people in their position they are supposed to be doing. And not even realize that anything is missing. Or that their behavior has devastating consequences for regular peoples’ lives. Ultimately, this blindness came to typify what I describe as ordinary injustice: Mistakes had become routine but the legal professionals could no longer see their role in them.

Why is it important?

Ordinary injustice is important because the courts affect so many people. Twenty-five percent of the nation’s adults have some sort of criminal record, according to Jeremy Travis. But this is crucial: It’s not just defendants who are hurt. Half of the book is about victims whose crimes aren’t prosecuted at all or prosecuted properly. Finally, ordinary injustice is important because it ultimately results in extraordinary situations. In many instances, the high profile cases of people being wrongly convicted and freed based on DNA evidence wouldn’t have happened if we had paid more to the ordinary. The ordinary is where it all begins.

The book is filled with outrageous stories of injustice. Is there one anecdote that stands above the rest for you? Or is it the systematic nature system that makes it so remarkable?

I think that what makes ordinary injustice so problematic is that it’s so hard to see. Without someone making out a pattern, each case just looks like an unfortunate collection of facts or an isolated incident rather than part of a pattern. For example, in one chapter in the book I talk about a court clerk named Miss Wiggs in Quitman County, Mississippi. She keeps lists of cases that were never prosecuted. She receives calls from angry victims who have had their houses broken into or been violated in some way. But she never knows why the cases seem to disappear or what they have in common. I used her list as a road map to try and figure out what went wrong. And what I found was that entire categories of crime had disappeared. For example, I interviewed a woman who was beaten under a bridge by her boyfriend with a tire iron. Her niece and her daughter were locked in a car watching and screaming for him to stop. When I tried to see why the case wasn’t prosecuted, I discovered a domestic violence case hadn’t been prosecuted in 21 years. When I told the woman who had been beaten this, there was a sense of relief that she could no longer be blamed. If not for Miss Wiggs’s list, she would have never known that her case was part of a larger pattern.

Do you think the commission and legislation of the sort discussed by Jim Webb will be enough? What else is needed?

I think that the commission and legislation which Jim Webb is proposing is a wonderful start. The system needs to be addressed at so many levels, from top to bottom. But I think that when he studies the trial courts he will find a serious lack of data. Most scholars would agree that the courts are the most unexamined institution in America. American courts lack a mechanism to monitor and address the systemic problems before an exemplary failure brings it to attention. In sports, we keep track of every stat in the world—so that coaches can see how to improve the quality of their teams. We need to do the same thing for the criminal justice system.

Currently, citizens and communities are not equipped with the tools to accomplish this. There are no test scores for courts as there are for schools, so we need evaluation mechanisms specific to the way we hold court in America. North Carolina, for example, is planning to track the effect of outcomes—such as the costs of people going on welfare because of incarceration—within its indigent defense system. It would evaluate whether spending so little time on a case in court means too great a cost to the rest of society. In addition, it would also measure how many times a defendant spoke to his attorney and the overall satisfaction of people accused of crimes. So if a county has a really low score, a supervising agency can intervene. All of these things tell us whether people are being treated properly and if the state can actually save money in the end.

What happened to the defendant in the first pages who says “I didn’t know that I was going to jail?”

Funny, she called just the other day. When I met this woman, she was in court because she had stolen a co worker’s credit card and bought housewares like pillowcases, sheets, a microwave and even a trampoline for her daughter who had a muscular disorder. Later I asked the prosecutor why he would offer a woman like her jail time as a plea bargain. She wouldn’t be able to work and wouldn’t be able to pay off her mortgage. She could lose her home and even her kids, one of who was disabled, all for a crime born out of poverty, not drugs or violence.

The prosecutor said he had no idea that she had three kids, one of whom was disabled. Why? Because her lawyer had never told him. The prosecutor eventually changed his plea offer so that she could do her time in a halfway house. There, she earned money doing factory work to pay her mortgage and she was able to go and see her kids on weekends. Today, she is a free woman. She still lives in that home she was trying to pay off and runs a day care center with her mom.

This item originally appeared in The Open Case magazine.