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.