Despite the presumption of innocence, there’s not a lot of sympathy for the accused. There’s even less pity for the convicted.
Coddle a criminal? Why, that’s for ‘bleeding-heart liberals.‘ No politician ever got elected saying they were soft on crime. Serve the criminals bad food, take away their television sets, and put ’em in pink underwear and be universally applauded.
Soft on the death penalty? Don’t even say it. Remember instead California Supreme Court Justice Rose Bird, the first Chief Justice ever recalled from office because she categorically opposed the death penalty. And also take note that the self-described ‘Law West of the Pecos,’ the legendary Judge Roy Bean would be little remembered today but for his supposed “Hang ’em first. Try ’em later” predilections.
But regardless of one’s political leanings, there’s good reason for the rest of us to care about the workings of the criminal justice system. Political convictions matter least when it’s your rear-end or a loved one’s that’s caught in the worm gears of criminal justice. It’s like Ernie Pyle saying, “There are no atheists in foxholes.”
In Brown v. United States, Justice Oliver Wendell Holmes said, “Detached reflection cannot be demanded in the presence of an uplifted knife.” Likewise, detached reflection on the quality of justice dispensed in criminal courts evaporates when faced with the law’s full weight.
After all, isn’t a conservative really a liberal who just got mugged and a liberal a conservative who just got arrested? The latter half of that aphorism is attributed to both author Tom Wolfe and to newsman Ted Koppel. But better still is what poet William Blake said about our state of mind, “As a man is, so he sees.”
In 2004, the American Bar Association issued a report entitled, Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice, which was based on public hearings held in 22 jurisdictions by the ABA’s Standing Committee on Legal Aid and Indigent Defendants (ABA SCLAID). The purpose of the hearings was to examine whether the promise of Gideon v. Wainwright was being kept.
In its 9-0 decision, the Supreme Court in Gideon found that the Sixth Amendment’s guarantee of counsel was a fundamental right, essential to a fair trial, which should be made applicable to the states through the Due Process Clause of the Fourteenth Amendment. Justice Black asserted that a fair trial for a poor defendant could not be guaranteed without the assistance of counsel and that “lawyers in criminal courts are necessities, not luxuries.”
In the ABA SCLAID Report’s Executive Summary, the following was said: “Overall, our hearings support the disturbing conclusion that thousands of persons are processed through America’s courts every year either with no lawyer at all or with a lawyer who does not have the time, resources, or in some cases the inclination to provide effective representation. All too often, defendants plead guilty, even if they are innocent, without really understanding their legal rights or what is occurring. Sometimes the proceedings reflect little or no recognition that the accused is mentally ill or does not adequately understand English. The fundamental right to a lawyer that Americans assume apply to everyone accused of criminal conduct effectively does not exist in practice for countless people across the United States.”
Looking for the metrics of justice.
Writing in an August 10, 2010 New York Times Op-ed, Justice by the Numbers, lawyer and journalist Amy Bach, author of Ordinary Injustice: How America Holds Court, reiterates her book’s assertion that the criminal courts need to adopt transparent metrics so the public can better assess the dispensation of justice in the nation’s criminal courts.
Bach admits that communities don’t necessarily concern themselves with the criminal courts. Unlike other public services like schools, colleges and hospitals, most people don’t get exposed to the criminal system unless they’re unlucky or just can get out of their own way.
Admittedly, some measurements do exist of what goes on in our courts. For example, jurisdictions adopting a merit selection and judicial retention system typically use judicial performance evaluations to assess the way judges perform their jobs. For instance, Colorado’s Commission on Judicial Performance recently issued the results of its 2010 survey.
But Bach’s prescription is arguably more substantive. Rather than rely on survey questionnaires to a random sample of persons who have appeared in court before a given judge, Bach’s so-called “justice index” would rely on data already available from the nation’s 25 largest counties. A committee made up of lawyers, community representatives, statisticians and law professors would set the metrics, which would be used to slice and dice the masses of data. As one possible measurement, Bach suggests, “the percentage of people who plead guilty without an attorney or average bail amounts.”
Bach is on to something. Governmental openness and transparency are essential components of a truly free democracy. There should be no argument when she posits that the absence of data to evaluate how courts provide legal services has “a corrosive effect: without public awareness of a court system’s strengths and weaknesses, inefficiencies and civil liberties violations are never remedied.”