Back Talk: Amy Bach

Back Talk: Amy Bach

A conversation with the author of Ordinary Injustice about why the right to trial is no protection against a shoddy legal system.


In Ordinary Injustice: How America Holds Court (Metropolitan; $27), legal writer and erstwhile law professor Amy Bach uncovers a clubby system in which overworked lawyers and law enforcement officers are often more loyal to each other than to their clients, and become blind to the human consequences of routine error ;and business as usual.   —Christine Smallwood

What was the genesis of this book?

I was reporting a series of civil rights articles and went to Greene County, Georgia, in 2001, where I watched a public defender plead forty-eight people guilty in a little over a day. And I saw several people break down. People would start to cry and say, Wait, I didn’t realize I was going to jail. They didn’t understand what they were pleading guilty to, and that was because the attorney had never talked to them about the facts of their cases. Afterward the public defender said something I will never forget: "Nobody could say that they didn’t have their day in court."

You write about situations where the prosecutor is exercising discretion about which cases to bring to trial, acting within his legal rights, and yet the result is injustice.

In Quitman County, Mississippi, I found that entire categories of cases had disappeared. I met one woman–this is the most shocking thing–she had been beaten up by her boyfriend with a tire iron underneath a bridge while her daughter and niece watched, locked inside a car. I heard that the prosecutor hadn’t prosecuted a domestic violence case in at least twenty-one years. He wanted to spend his resources and time on cases that he was sure he could win. So if an attention-getting crime happened, he would pursue it vigorously. But for cases that required legwork and tricky maneuvering–generally, domestic violence cases can be difficult, or that’s the preconception–he would put those aside. Prosecutors get elected by the citizenry, and they often will announce their win/loss records, or convictions. You don’t want to lose.

Procedural rights–specifically the right to plea-bargain–can wind up hurting defendants.

If you exercise your right to a trial, you’ll often get hit with a greater sentence than if you took the plea bargain. When you take the plea bargain you’re essentially bargaining away your right to assert your rights, and that’s part of the deal. It’s a crazy gamble to make. The system is beautifully set up with all sorts of rights that are accorded to defendants, all sorts of protections for the little guy. But in practice those rights are extremely difficult to assert. The problem is that there are so many new laws that people can break; there’s such a tremendous influx of people into the criminal justice system because more and more people are being charged. The system just can’t hold a trial for everybody unless a different type of trial system is created.

In the book I discuss a woman in Troy, New York, who is arrested for trespassing. She’s sitting on a stoop braiding somebody’s hair and there’s a sign that says, "No Trespassing." She’s arrested and taken to jail. She’s a nurse. She’s in jail for eight days and misses work. When she’s finally brought back to court, she has a public defender, but she never recalls meeting him. On the day she pleads guilty, she’s slapped with a fine. She could have contested it and had a trial, but she doesn’t; she wants to get out of there. She can’t miss any more work. She has five kids; she’s a single mom. Several months later, she’s applying for public housing and she is rejected because she has a misdemeanor conviction. Just by asserting her rights, the system punishes her.

You tell the story of Michael Evans and Paul Terry, who at 17 were imprisoned for raping and murdering a 9-year-old girl. Twenty-seven years later, they were exonerated. Evans’s mother and sister continued to set a place at the dinner table for him for nearly three decades. They were in jail, too.

First of all, there are costs to the individual. Paul Terry basically came out insane, as any normal person would after twenty-seven years in prison. He has never recovered. And Michael Evans, too, has pretty much been left without a compass. There’s the individual costs and the costs to the families. But I also think that there’s a cost to the people who work in the system. The people who "perpetrate" these injustices don’t have bad intentions. Everybody thinks that they want to do justice. And yet at the same time, they know that they’re doing something wrong. Tom Breen, the prosecutor on the case, came forward two decades later and said, "I think I could have made a mistake." It’s hard to work in a system that’s so dysfunctional. The attorneys and law enforcement officers lose their mind a little bit. They have some knowledge of that. It’s upsetting because nobody wants to fail on a daily basis. People want to do their jobs well, but for various systemic reasons they can’t.

How can the system be fixed?

My book calls for monitoring and measurement. Right now we can’t see that errors are being made. Leading scholars agree that the courts are the most unexamined public institution in America. We measure our schools, the purity of the water supply. Why do we leave our courts alone? What kinds of cases are being prosecuted? What kinds of cases are not being prosecuted? How many people are pleading guilty? How many people are pleading guilty without attorneys? How high are the bails? We need to start paying attention to the ordinary. Right now the scorecard is the big, important trials that grab the media’s attention. But that’s just not enough. People should be thinking about how to create new scorecards. We have to start thinking about how to document the ways that regular people are actually treated.

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