September 8, 2009

Tonight we will be looking at a social ecosystem—the American justice system. Our guest will be Amy Bach, an attorney and journalist who has just published a book called Ordinary Injustice: How America Holds Court. She spent five years visiting courtrooms all over the country, and offers a harsh indictment of how justice is dispensed—and that indictment includes just about everyone associated with the system, from judges to prosecutors to defense attorneys. She also has some ideas about how the justice ecosystem can be corrected.

Some Global News About “Blind” Justice

Wikipedia explains that:

Blind Justice is the theory that law should be viewed objectively with the determination of innocence or guilt made without bias or prejudice. It is the idea behind the United States Supreme Court motto “Equal Justice Under Law” and is symbolized by the blindfolded statue of Lady Justice which is the symbol of the judiciary. In ancient times an administrator would hear a charge and dispense the law as written. The Hammurabi code is the oldest and most famous example of what was called lex talionis, or an eye for an eye. The accused would literally sit behind a blind individual and an official would declare a pre-determined punishment without influence of opinion on the individual. […] The [Biblical books of the] Pentateuch, […] also advocate the concept of blind justice: “You shall do no injustice in court. You shall not be partial to the poor or defer to the great, but in righteousness shall you judge your neighbor.” (Lev 19:15, ESV) “You shall not be partial in judgment. You shall hear the small and the great alike.” (Deut 1:17, ESV)

Nevertheless, the concept of “impartiality” has been subject to great argument in both classical times and our own.  Writing on just before the confirmation hearings for  Supreme Court Judge Sonja Sotomayor, Susan Estrich argues: You Can’t Blindfold Lady Justice: Judges DO Make Law

Don’t tell anyone: This is the season when lawyers left and right cross our fingers behind our backs and solemnly swear that judges don’t make law.

Conservatives insist they adhere to original intent. Liberals insist they do no more than apply the commands of a living Constitution. Everyone recognizes that life experience matters, but no one wants to admit how that could be so, because judges [supposedly] don’t make law.

[…] Nominee Sonia Sotomayor is going to spend at least a few hours of her time before the Senate Judiciary Committee explaining away her comment at Duke a few years ago that the appeals court (as opposed to the trial court) is the place where policy gets made. […]

If you have any doubt that it’s true, however, consider the very current and important question of when warrantless wiretapping should be allowed for national security reasons, and whether warrants are required for conversations with foreign nationals suspected of terrorism ties, and if warrants are required, under what standards…

Now, consider the provision of the Constitution in which you will find the answers, the Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

[…] About wiretapping, of course, the Founders did not say anything, as telephones had not been invented. The history of eavesdropping was invoked when the court was called upon to determine whether the Fourth Amendment protected a guy talking on a pay phone.

[…] It’s just that it takes judges — judges you may like, judges I may like, judges whom those on the left and right may unite to support, as I hope will happen here — to apply those enduring principles to technology our Founders couldn’t have dreamed of, in a world facing challenges that couldn’t even be described in their terms.

But Jeff Jacoby of the Boston Globe, disagrees, arguing that President Obama has deliberately removed “Lady Justice’s Blindfold” and turned her into a tool of politics. He writes:

[The] obligation to decide cases on the basis of fact and law, without regard to the litigants’ wealth or fame or social status, is a venerable moral principle.

[Jacoby cites several of the Biblical passages we quoted earlier along with John Adam’s statement that]  “We live under “a government of laws and not of men.”

That is why the judicial oath is so adamant about impartiality. That is why Lady Justice is so frequently depicted — as on the sculpted lampposts outside the US Supreme Court — wearing a blindfold and carrying balanced scales.

And that is why President Obama’s “empathy” standard is so disturbing, and has generated so much comment.

Time and again, Obama has called for judges who do not put their private political views aside when deciding cases. In choosing a replacement for Justice David Souter, the president says, he will seek not just “excellence and integrity,” but a justice whose “quality of empathy, of understanding and identifying with people’s hopes and struggles,” would be “an essential ingredient” in his jurisprudence. In an interview last year, he said he would look for judges “sympathetic” to those “on the outside, those who are vulnerable, those who are powerless.”

[…With such criteria, what would remain of the rule of law? What would happen to “Equal Justice Under Law,” which is carved above the Supreme Court’s entrance? What would be left of the 14th Amendment’s guarantee of “equal protection of the laws” to every citizen?

Lady Justice wears a blindfold not because she has no empathy for certain litigants or groups of people, but because there is no role for such empathy in a courtroom. “Our constitution is color-blind,” wrote Supreme Court Justice John Marshall Harlan, in his great dissent in Plessy v. Ferguson, “and neither knows nor tolerates classes among citizens.” Harlan had supported slavery; he believed whites were superior to nonwhites. He had his empathies, but he confined his judging to the law.

Blindfolded or not, it’s clear that many people think that Lady Justice has done them injustice. We Googled “miscarriage of justice” and came up with 866,000 hits, an extraordinary number of them being individual stories where people feel they did not receive justice.

The website, Citizens for Judicial Accountability reviews a book by social worker Karen Huffer, who has:

[…] found that many victims of the legal system suffer from [what she calls] Legal Abuse Syndrome, brought on by the abusive and protracted litigation, prevalent in our courts. According to Ms. Huffer you may be suffering from Legal Abuse Syndrome if you feel deeply disillusioned and oppressed as a result of your experience with the legal system; if you feel you were frustrated in obtaining justice; if you feel your dreams and plans for your life were torn from you by a system that is supposedly there to protect your rights and property; if you fear that the system will defeat you at every turn and there is nothing you can do about it, and if you feel that you have been victimized several times over, by the perpetrators, by lawyers, judges, bailiffs and other court personnel. As a consequence you may suffer from tension and anxiety, recurring nightmares you may feel emotionally an physically exhausted, numb, disconnected and vulnerable.

Our Questions for Amy Bach

Part I:  The Book, Methodology, Findings

  • The title of the book is Ordinary Injustice.  Please explain the title for us.
  • You are both a journalist and an attorney. How did these two fields come together for you in the Ordinary Injustice project?
  • The book is essentially four case studies of both court systems and individual attorneys (we’re impressed by the depth of these—long-term, not quick studies).  We obviously won’t have time to go into details of each of these stories, but perhaps you can give us an idea about how they fit together:
    • Robert Surrency—Greene County, Georgia (public defender)
    • Hank Bauer—Troy, NY (judge who takes the law into his own hands)
    • Miss Wiggs’s list–Laurence Mellen–Quitman County, Mississippi (prosecution)
    • Robert Breen—Chicago (prosecuting attorney who changed his mind and helped free innocent people)

[Please tell us the story of the Chicago “two-ton contest” and how it represents systemic problems.]

  • Can you make the case that these four studies are, in fact, representative of problems with How America Holds Court?
  • One of your premises is that “it takes a community of legal professionals to let a sleeping lawyer sleep.”  That is, one of the problems is a kind of cozy collegiality among attorneys and  judges that lets injustice happen. Please explain.
  • You also talk about a kind of “blind”[in] justice, where the people within the system “don’t even notice the injustice.” (Prof. Alschuler, p. 115)
  • What is “confirmation bias” and how does it affect attorneys, judges, and even juries?
  • What problems do you see with the “adversarial” system generally?  What checks and balances (if any) does it provide?
  • You write of “substantive justice,” a feeling (shared by many) that despite problems of funding, overwork, and rule bending, the guilty more or less are brought to justice. Is the system really so bad that overhaul is necessary?

Part II:  Remedies and Cures

  • Your major recommendation in the “conclusions” chapter caught us by surprise! Please tell us about your proposal for data gathering and monitoring as a (partial) solution to ordinary injustice. What are the possibilities and pitfalls of this system.
  • What is the role of nonprofit and other monitoring groups in keeping the justice system aright—e.g., ACLU, Southern Poverty Law Center, Southern Center for Human Rights.  Do they have a fighting chance?   Are there public versions of these agencies (e.g. Georgia Public Defenders Standards Council) that could successfully monitor the system?
  • You don’t say much about lawyer’s fees in the book (You chiefly talk about feels in the Greene County chapter on Robert Surrency). But isn’t injustice really all about money? Isn’t it possible that lawyers have created such a high fee system that justice is out of reach for the poor?
  • We’ve been interested in the “plain English” legal movement.  Hasn’t the legal profession created a linguistic quagmire that bewilders citizens and keeps the legal system in the hands of (high-priced) lawyers?   Can we imagine a legal system where ordinary citizens could read and understand the law or even state their cases without having a lawyer present?
  • If you were the U.S. or a state attorney general, what immediate steps would you recommend to insure Ordinary Justice?
  • What’s your next project?

The book is Ordinary Injustice: How America Holds Court, and it’s published by Metropolitan Books, a division of Henry Holt and Company.

Do-It-Yourself Ordinary Justice

  • There is the Southern Poverty Law Center, now headed by former New York Times progressive columnist Richard Cohen.  Current projects mentioned on their website include:  documenting discrimination against Latino immigrants, a lawsuit bringing about reforms in a Mississippi juvenile detention center, and an analysis of racisim in the resurgent militia movement.

  • We are both card carrying members of ACLU which is famous (or infamous, depending on your point of view) for defending individual rights. ACLU is active nationally, and the Chico Branch just observed its first anniversary, a very productive year.  Their website includes a Civil Rights Submission Form where people can lodge complaints against the justice system, and ACLU will look into it.

  • Amnesty International has an impressive record of looking into ordinary injustice on a global scale. Current projects for AI are include actions in Nigeria, Honduras, Iran, Uzbekistan, Sri Lanka, and the Sudan, plus a sharply critical analysis of Supreme Court Judge Antonin Scalia.  Amnesty International also invites activism in the form of letter writing, and is currently recruiting 10,000 concerned citizens to participate in its campaign to “free prisoners of conscience from jail and bring brutal human rights abuses to an end.”

  • The Western States Center in Portland, Oregon, which provides support for activist groups in our region. The Center offers activist training and directly supports the work of a number of social justice organizations throughout the west. Their work also includes a number of environmental issues, including water in the west, air quality, and clean and renewable energy

Playlist for Ecotopia #50

1. Here Comes the Judge    2:50    The Stuff    Pick It Up, Pig Boy

2. Judge and Jury      2:35    Micky Groome    Soul Rider

3. Here Comes the Judge    3:44    Peter Tosh    20th Century Masters – The Millennium Collection: The Best of Peter Tosh

4. Here Comes the Judge    2:35    Shorty Long    The Complete Motown Singles – Vol. 8: 1968

5. Lawyers, Guns and Money          3:01    Warren Zevon    A Quiet Normal Life – The Best of Warren Zevon

6. Weave Me the Sunshine  4:28    Peter, Paul And Mary    The Very Best of Peter, Paul and Mary

7. The Dicty Glide     3:19    Don Byron    Bug Music

8. Tobacco Auctioneer         2:36    Don Byron    Bug Music