Ordinary Injustice: How America Holds Court

Two weeks ago, Amy Bach spoke at Busboys and Poets, DC's famed progressive cafe-bookstore, about ordinary injustice. Such banal injustice is the brand of American justice that goes in county and local courtrooms that chooses expediency over justice when it comes to most minor crimes. Bach outlined her theory that the adversarial system lacks checks and balances on attorneys and judges. The incentives are misplaced so that it's not worth it for defense lawyers to fight for their clients, or for prosecutors to prosecute unwinnable cases. Although defense lawyers and prosecutors are supposed to oppose each other in court, it is generally easier to cooperate at the expense of defendants and victims. Bach was promoting her book, Ordinary Injustice: How America Holds Court. In it, she builds her case against ordinary injustice by profiling a public defender who didn't defend, a judge who didn't judge, and a prosecutor who didn't prosecute.

The public defender's story stands out the most. Bach focuses on Robert Surrency, the public defender of Greene County, Georgia. On the first day that Bach arrived in this courtroom, she saw a throng of people waving papers at their state appointed attorney, Surrency. It was clear that Surrency had no idea who his clients were. This was because Surrency had a huge caseload. Since most counties are left to decide how to fund indigent defense, there is no nationally used system. Greene County happened to use a system where a public defense contract goes out to the lowest bidder. That year, Surrency bid the lowers for all public defense cases. This means he had his case load on top of his regular full time job. Needless to say, he did not have time to carefully examine each case. Instead, it made sense for him to plea bargain his clients as quickly as possible, whether or not that gave them the best outcome.

The prosecutor's story in Quitman County Mississippi struck a similar chord. Bach found that over the past two decades, nearly all domestic violence cases had been dropped because the prosecutor's investigator deemed these to be the least winnable cases. Juries notoriously feel unsympathetic towards domestic violence victims. In addition, the victims themselves often refused to testify against their abusers. Again, it made sense for the prosecutor -- an elected official-- to simply shove these cases away in a drawer and focus his attention on the big media cases.

Bach's chief insight is that both of these above examples could be mitigated with oversight. The current system doesn't provide incentives for lawyers to check each others work, but the average citizen could check lawyers' work with the right public data. Bach suggests for people to demand information on the number of guilty pleas without an attorney present, the public defender's typical caseload, the numbers and types of cases that go unprosecuted, and the bails and number of days spent in jail for those charged with crimes. With these data, Bach bets that patterns would emerge, holding key players accountable.