What is meant by “ordinary injustice”? The idea of injustice has a powerful legal presence in American history. One might conjure up images of Civil Rights marches, voting rights for women and minorities, or something as simple as the right to counsel. So how might injustice be ordinary? In Ordinary Injustice: How America Holds Court, attorney and journalist Amy Bach attempts to guide us through this very subject. Injustice that impacts any class of person, individually or at large, is often quite noticeable and tangible enough to tackle. Bach's purpose with this book, however, is to examine “how state criminal trial courts regularly permit basic failures of legal process” (2). Bach postulates that these small failures amount to a disproportionate impact on defendants and the system. Bach utilizes a case analysis approach to illustrate small-scale injustices through narratives of actual criminal cases. With a tremendous backlog of cases in the court system, a normalized bureaucratic efficiency has developed. In each of the cases Bach presents, the seemingly mundane court operations enable these little injustices to take root.
The methodology in this book is based on the close examination of stories in each of the four chapters. The author investigates each case through interviews with each of the players involved with the case. Chapter 1 leads the reader through the case of an overburdened Georgia public defender whose low-cost, mechanical approach to defense leaves his clients with little actual “counsel.” Bach begins to show us that the system, based on a case-by-case approach, creates avenues of efficiency to move the process along. Important individualistic factors are routinely overlooked, but may have significant bearing on the case. The courts become merely a machine of prosecution.
In the next chapter Bach presents the story of a Pittsburgh judge who loses sight of his own ethics. The judge abuses his discretion by setting “extremely high bails, like twenty-five thousand dollars for loitering,” thus creating injustice with excessive fines and sentences (87). Disregard for the details of a defendant's case or the reasonableness of bail easily lead to disproportional punishment. Even judges, operating their court in an assembly-line fashion with an extreme approach to sentencing and bail, can scarcely be called justice.
Chapter 3 addresses prosecutorial discretion as another avenue to injustice. Often prosecutors have the ability, based on the particulars of a case, to dismiss or continue prosecution. One county prosecutor in Mississippi abuses his discretion by not taking held-over cases to the grand jury. It becomes apparent that this prosecutor is exercising his discretion without a clear process for filtering through the cases. The prosecutor is deliberately short-circuiting the system out of fear of unnecessary prosecution. Most of the administrative and legal staff for the county court admit knowing that many criminal cases failed to make it to their destination, yet no complaints were ever lodged by anyone in the court. Though a prosecutor may choose not to proceed in the interest of justice, these cases have not been dismissed, but linger in legal limbo in a courthouse safe.
The previous chapters address the injustice of underprosecution, and chapter 4 addresses overprosecution. When there is significant pressure to win a case at all costs, the error of under- or overprosecution is more common than we would like. This can even lead to bad judgment when deciding whom to charge with a crime (193). Bach's final story illustrates an overzealous prosecutor who manages to win a very weak, yet high profile, case only to consider the likelihood that he convicted the wrong men, a circumstance brought about by a prosecutor's unwillingness to dig too deep in the fear he will undermine his own victory. A negative of our adversarial system is the tunnel vision resulting from the competitive culture in the courtroom. The injustices here are the intense pressure and focus on winning to the exclusion of insuring proper justice and due process.
Bach's innovative analysis presents real criminal cases in a narrative format, making this book deceptively easy to read. The format and methodology of the author's case analysis are fitting for legal scholarship and serve as an eye-opener for the public. This book effectively illustrates the injustices in a system that is clogged with too many cases and too few attorneys and judges to adequately provide the due process necessary for justice to prevail.
