Supreme Court Justice Hugo Black remarked in a famous decision, Griffin v. Illinois (1956), “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” Black’s statement can be viewed as a central argument in two uniquely different books on the American criminal justice system: “No Equal Justice,” by David Cole, law professor at George Washington University and a legal analyst for The Nation magazine, and “Courtroom 302,” by Steve Bogira, longtime writer and staff member of The Reader, a Chicago newsweekly. Cole offers an overview of the system, and Bogira relates the daily happenings in an urban criminal courtroom.
Beginning with the issue of a police officer’s stop and search of a suspect and ending with the finality of the death penalty, Cole looks at every stage of what could be more accurately termed the criminal injustice process in America. At every stage, he finds racial and class disparities and clearly demonstrates how criminal law is unevenly applied to those who are poor and/or minority. He observes, “The system’s legitimacy turns on equality before the law but the system’s reality could not be further from that ideal.” We actually have two systems of criminal justice, he writes: “one for the privileged and another for the less privileged.” The problem with trying to explain the system, he says, is that the double standards are not explicit and “on the face of it, the criminal law is color-blind and class-blind.”
In his explanation of the police conduct of a search, Cole notes that it “effectively sanctions coercion against those most vulnerable to police authority,” and this can mean those who are “young, poor, uneducated, and non-white.” Many are not aware that they can legally refuse a police search, and many police will not inform them of that right, a police practice which Cole strongly criticizes. He notes that, “under the law as it stands, wealthy people are not subject to such treatment; Black and Hispanic people are; and especially poor Black and Hispanic people that live in the inner city.”
The poor go without
Another area of clear disparity is the availability of adequate legal representation. Many indigent defendants do not receive adequate or even competent counsel in court.
The Supreme Court virtually enshrined into law the right to legal representation in the 1963 Gideon v. Wainright decision, a court decision which was later publicized for the literate in Anthony Lewis’s best-selling work, “Gideon’s Trumpet,” and spread even further by Hollywood’s movie version starring Henry Fonda.
In practice, as Cole points out, the effectiveness of the attorney should also be an issue. The author charges that the bar of effective legal assistance for an indigent defendant has been set so low that “even lawyers who are drunk or asleep in court have been deemed ‘effective.’” Cole blames the situation on the Supreme Court’s failure to adopt rules that would guarantee adequate counsel for the poor. The present rules “virtually guarantee that the poor will get inadequate representation and then be punished for the inadequacy of the lawyers the state has provided.”
Death penalty cases offer an even more dramatic example of the disparities in criminal justice. Cole explains how, in 1987, Congress created death penalty resource centers to expedite habeas corpus appeals for indigent defendants, and hopefully hasten the appeals process (i.e., speed the pace of executions). The overworked, underpaid attorneys working in the centers actually did their jobs and were very effective in finding constitutional errors, which further slowed the pace of executions and in some cases prevented them. In return for their efforts, the centers lost their federal funding in 1995. Rep. Bob Inglis (R-S.C.), who introduced the legislation to end the funding, called the centers “think tanks for legal theories that would frustrate the implementation of all death sentences.” The centers were replaced by highly paid, inexperienced private attorneys, with the hope of speeding up executions.
Racism throughout the system
Cole devotes a significant proportion of his work to a discussion of racial discrimination in the criminal justice system. Just a casual look at some of the numbers leaves one numb. Blacks comprise 12 percent of the population of the U.S., but they occupy 50 percent of the nation’s jail cells — an incarceration rate seven times higher than whites. The author observes that “racial disparities appear at virtually every point in the criminal justice system,” and they “reflect disparities in social and economic conditions beyond that system.”
Cole accuses the Supreme Court of dodging the discrimination issue, and cites the court’s decision in McLeskey v. Kemp. In that decision, the court rejected an appeal in a death penalty case which was based on detailed statistical evidence demonstrating, beyond any serious doubt, that in the state of Georgia, a Black person was more likely to be sentenced to death than a white. The Supreme Court rejected the appeal in what Cole considers the most important decision that court ever made on race and crime. He believes that the court has chosen not to deal with the legal question of racial disparity in the criminal justice system because acceptance of the argument might bring into question the legitimacy of the entire system.
Cole believes that the Supreme Court deserves only part of the blame for the inequalities in American criminal justice. The author explains that the ideal of equality before the law “is admittedly difficult, and perhaps impossible, to achieve in our system. A capitalist economy not only tolerates, but depends on, economic inequality.”
Cole recognizes that inequality in our criminal justice system might only be rooted out by a radical restructuring and redistribution of resources and economic opportunities, but he seems reluctant to advocate such an overhaul of capitalism. Instead, he suggests a modest program of reform beginning with the recognition of the double standard in the system. His suggested reforms actually detract from an otherwise strong indictment of racial and class injustice in our criminal justice system. In addition, even the modest reform program suggested by Cole would probably encounter stiff resistance from a hardened political right and a privileged class which wants to maintain its present position of “equality”(i.e., money and influence) in an unequal, unjust system.
An up-close view
Steve Bogira offers the reader a different perspective as he gives us a closeup view of daily life in an urban criminal court in his book, “Courtroom 302.” Bogira spent an entire year in the same courtroom in the nation’s largest and busiest felony court building, the Cook County Criminal Court Building in Chicago. With a very liberal scattering of digressive observations of a historical and analytical nature, Bogira steers us on a journey through the criminal justice system as experienced in the Cook County courts. Bogira begins this venture in the early hours of the morning when new prisoners arrive at the bond court. According to the author, the bond court judge normally disposes of each case in an average time of fifteen seconds. (Recently, a major Chicago daily newspaper claimed that the real average time in bond court is 50 seconds.) If you have money, you’ll usually walk that day. Those without money go directly to jail to await their day in court. The author cites a 1922 study of Cook County Jail which denounced the “blatant economic discrimination.” Things haven’t changed. Bogira also reflects on the observations of a century-old study of the American criminal justice process. That writer noted that in criminal courtrooms from city to city, one aspect “about most defendants varies little: their poverty.”
‘Gears in a machine’
Bogira carefully describes the workings of the courtroom as well as the duties of its hardworking personnel, whom he describes as “gears in a machine.” Real life in the courtroom is completely different from Hollywood portrayals. Bogira explains, “The judges in TV dramas or movies are always presiding over heart-stopping jury trials, with riveting testimony and passionate arguments — action punctuated by a banging gavel and calls for order from the judge. About the only use a gavel gets at 26th Street [local nickname for the court and/or jail there] is holding down papers in chambers.”
The criminal courtroom is portrayed as more of a processing center than a dispenser of justice. It is a place where a heavy load of cases is handled in as rapid and expeditious manner as possible. A jury trial is a rare phenomenon. Too many trials would gum up the works. Bogira notes that judges at 26th Street normally conduct only one jury trial per courtroom each month. Most cases are settled through a plea bargain — a deal worked out between prosecution and defense attorneys with the approval of the judge. A defendant pleading guilty through a plea bargain normally receives a lighter sentence than he/she would from a guilty verdict in a trial.
The author describes the defense attorney as a “floor salesperson” whose job is to soften up the defendant so he/she will accept the plea bargain deal which has already been made. The defendant learns the positive consequences of accepting a plea bargain and the potential negative consequences of going to trial.
The overwhelming majority of defendants accept a plea bargain rather than their constitutional right to a trial by jury. In fact, the criminal courts would probably fall into gridlock if most defendants demanded their right to a jury trial — only 1 percent do so. As it is, the plea bargains help to clear the court’s docket of many cases, and their constitutionality has been upheld.
The downside of plea bargains is that otherwise innocent persons can be caught up in the process, as well as many young defendants who do not fully understand the long-term consequences of a felony conviction. They will pay for that criminal record every day for the rest of their lives because they live in a society that rarely forgives or forgets a convicted felon. They will live in a state of second-class citizenship with avenues to jobs and careers, and in some states even the right to vote, forever closed.
Borgia singles out the night drug courts in Cook County as the epitome of the process. The night courts, held in eight courtrooms at 26th Street, start at 4 p.m. each day and normally hear only drug-related cases. In the drug courts, defendants can be pressured by public defenders to decide on a plea bargain in as little as 5 minutes. The author explains how the creation of specialized drug courts led to a dramatic increase in drug cases as the police stopped tossing out minor charges of drug possession and instead arrested the persons. Borgia reports that the judges who staff the night drug courts were chosen for “their proficiency in hustling cases along.” The U.S. Department of Justice commended the Cook County drug courts as an “efficient and cost-effective approach available right now for replication in other jurisdictions.”
Finally, the author examines the twin issues of police misconduct and abuse which he says are a historical problem in Chicago. He cites a 1931 report from the National Commission on Law Observance and Law Enforcement, which took special note of how the third degree (police beating and abuse of suspects) was “thoroughly at home in Chicago.” Again, things haven’t changed. A 1992 study by Myron Orfield described how “Chicago police lie pervasively in court,” and this perjury is “nurtured by prosecutors and tolerated by judges.” Police misconduct became a public scandal during the 1990s when Area 2 Violent Crimes Commander Jon Burge was fired on charges of torturing suspects. Findings indicated that what occurred went beyond usual beatings and included “planned torture.”
Both of these books are sharp and informative critiques of criminal justice in the most advanced capitalist society. Socio-economic inequalities in the United States are sharply reflected in its criminal justice system. People of affluence
enjoy legal protections that the poor and minorities largely lack. The legally privileged class could be expected to oppose reforms which seriously strike at the racial and class disparities in criminal justice. Cole has provided a valuable service by singling out the causes of inequality in the criminal justice system, which mirror the race and class inequalities in American society. Borgia has also provided a valuable service with his description and analysis of daily life in the American criminal courtroom. The two books complement each other and offer the reader a useful point of departure for understanding the nature and extent of the radical overhaul that is badly needed in American criminal justice.