In 1984, a defense attorney repeatedly fell asleep during his client's murder trial and no one in the courtroom said a thing. How can that be? Amy Bach's answer, in "Ordinary Injustice," is that this is a product of a system in which "state criminal trial courts regularly permit basic failures of legal process. Bach persuasively argues that the justice system is rife with injustice and that regular, basic failures have given rise to a system in which greater failures, like a sleeping defense attorney, are tolerated.
The book is divided into four sections, each of which focuses on a single individual: a defense attorney who meets his clients before immediately encouraging them to take a plea; a judge who sometimes coerces defendants into pleading guilty and fails to provide them with lawyers; a prosecutor who fails to proceed with many of his cases; and a prosecutor who wins the convictions of two men for the rape and murder of a little girl that they didn't commit. These profiles afford Bach the opportunity to reveal a system in which justice often goes awry, especially for minor, vulnerable defendants, and to diagnose the causes.
Relationships between legal professionals are a primary source of injustice. "When a lawyer is forced to choose between performing vigorously in his role as an adversary and maintaining easy and necessary professional and institutional relationships, he often opts for the softer route, which undermines justice for some of his clients." Indeed, as one defense attorney puts it, "Life is too short to go around getting people mad at you [...] There's no need to file a demand for a trial if you get everybody mad at you."
Legal professionals are also often hindered by a system that is plagued by a lack of time and resources. "Ordinary injustice is virtually always rooted in an incomplete story. The complete facts of a case, the very stuff that could force a remedy, are usually missing." Throughout the book, legal professionals emphasize the importance of being productive, moving quickly, expediting, pushing cases through, clearing the judge's docket, saving money and operating cheaply.
This has stark consequences. On several occasions in the book, Bach listens to a defendant's or plaintiff's story and uncovers information that changes the course of their case -- information that none of the legal professionals had time
One reason the courts are so pressed for time is the American jury trial, "one of the most cumbersome and expensive fact-finding mechanisms that humankind has devised," according to a professor Bach quotes. It's cheaper and easier to avoid them, as the defense attorney profiled by Bach did, resolving more than 99% of his cases by plea bargain.
The lack of money stems from a lack of interest among citizens and local governments. In a telling anecdote, one defense attorney says, "There is really a consensus among the local people paying their taxes that these people don't need any defense, much less a quality legal defense." Consequently, even the few available resources are distributed unevenly: Bach writes that in 2002 $3.3 billion was spent on indigent defense, while in 2001 $5 billion was spent on prosecution.
The need to expedite the process and save money leads to toleration of "substantive justice," which means "that the accused gets what is fair in the end, even if the process accorded him is not exactly what is required." Substantive justice through plea-bargaining is very efficient at cheaply moving people through the system, but it is also easy to abuse. The judge Bach profiles was removed from office for coercing vulnerable defendants into taking pleas. Nonetheless, he was beloved. Citizens often tolerate, even admire, a system that achieves their desired outcome -- for example, no drug dealers on the corner -- regardless of the rights of the people involved. Community pressure can also facilitate over-prosecution: When a heinous crime is committed, the community cries for a conviction and this pressure can lead to wrongful convictions.
Victims of crime also have trouble getting justice. Prosecutors, being elected, have an incentive to proceed only with cases that they know they can win and drop cases that are uncertain victories or take too many resources. While the decisions may be legally defensible, the victims often feel poorly served by the legal system, particularly when the prosecutor fails to inform them.
Clearly, injustice abounds in the justice system. However, there is no way to fix the system as a whole, because, in fact, there are many systems: Every state and local government has its own judicial system and its own set of circumstances. In addition, aside from occasional highly public trials and gross cases of injustice, most of the system is invisible to the public. Bach suggests that reform must begin by making the system more transparent. She advocates creating a court monitoring system to collect and disseminate statistics about each local and state court. While this information would not in itself create a more just system, it would reveal problems in the system and allow citizens to hold elected legal officials (prosecutors and judges) to a higher standard.