The Emperor Has No Clothes: A Journalist Sees the Criminal Justice System.

• Author: Bowman, Locke E.
• Position: Book Review

STEVE BOGIRA, COURTROOM 302 (A. Knopf2005). 416 PP.

Journalist Steve Bogira spent a year observing the proceedings in Courtroom 302--one of the busy felony courtrooms in Chicago's criminal courts building. Bogira's aim, through his recounting of the events of that year, is to reveal "the story of [America's criminal justice system]." (1) Sensitive and closely attuned to the implications of what he observes, Bogira's book does a fair job at offering the reader a microcosm of the system as a whole. It is a bleak tale, though, of a broken, dysfunctional process.

The sheer volume of cases is the salient feature, numbing the minds and overwhelming the abilities of every participant in the system. Cook County Circuit Court Judge Daniel M. Locallo, who presided in Courtroom 302 during Bogira's year there, has 300 cases pending on his docket on any given day, involving a total of some 350 defendants. (2) In a year, Locallo presides over 15 jury trials and 88 bench trials and conducts over 800 guilty pleas. (3) In the Chicago criminal court as a whole, the volume of cases is staggering: In 2004 a total of only forty judges must handle in excess of 31,000 felony cases--a case volume that has remained relatively constant during the past five years. (4) This is but one city's share of a national caseload of felony filings in state courts that, as of 2002, stood at 2,300,000. (5)

The lopsided percentage of guilty plea dispositions in Courtroom 302 is a function of the overburdened docket. In Bogira's telling of it, the volume of work reduces Locallo to less an arbiter of justice than a retail discounter, offering bargain sentences in exchange for quick guilty pleas in all but the most serious cases--his primary goal being to move pending cases to dispositions and keep the process flowing. (6) In this, Locallo only mirrors the system, locally and nationally. In Cook County, 86% of case dispositions are the result of guilty pleas, (7) a rate roughly consistent with the national level of guilty plea dispositions. (8)

If the volume diminishes the judge's stature, it demoralizes and renders ineffectual those responsible for representing defendants who are indigent--the overwhelming majority of those charged with state court crimes. (9) One of the public defenders assigned to Courtroom 302 during Bogira's year of observation quit in frustration, burned out with an unceasing load of more than 100 felony cases. (10) "Nobody can adequately represent that many people," she tells Bogira. "If you're in court all day doing case after case, you don't have time to prepare for trials." (11)

With a daily load of over 100 felony cases, Cook County defenders are almost certainly well over the maximum workload that the American Bar Association deems consistent with the rendering of quality representation. Tacitly, the ABA sets that maximum at 150 felony cases per year. (12) If the maximum acceptable load seems superhuman--it would require disposing of three felony matters each week of every year, managing a caseload well in excess of that maximum is surely beyond the limits of competence. Pathetically, one indigent defendant tells Bogira of his surprise and gratitude at the attention he got from his public defender before the disposition of his parole violation: the defender had spoken with him through the bars of the lockup for a full ten minutes before the case was called (failing, in that hurried conversation, to learn a key piece of mitigating evidence). (13)

And yet, this is the norm nationally. In a study undertaken in 2003 to commemorate the fortieth anniversary of the Gideon v. Wainwright decision, (14) a Standing Committee of the American Bar Association, after conducting extensive hearings and interviews in twenty-two states around the nation, concluded that "current indigent defense systems often operate at substandard levels and provide woefully inadequate representation." (15) Based on testimony at the hearings, the Committee noted that "oftentimes caseloads far exceed national standards, making it impossible for even the most industrious attorneys to deliver effective representation in all cases." (16) These findings are eerily similar to those made twenty years earlier, in a similar commemoration of the twentieth anniversary of Gideon. (17)

The volume strains the physical capacities of the system as well, a reality to which Bogira pays somewhat less heed. Behind the Cook County criminal courts building, the Cook County Jail has become a burgeoning "campus" that covers several city blocks and, nonetheless, remains overwhelmed beyond its capacity to hold pre-trial detainees. Perennially in violation of a federal consent decree requiring that the jail population not exceed available beds, this jail throughout the current decade has housed about 5 to 10% more inmates than it has beds to hold. (18) This despite the fact that the jail's capacity has grown from around 6,100 available beds in 1989 to 9,700 beds as of 2005. (19) Reflecting the inability of the system to keep up with the flow of cases, inmates awaiting trial in the Jail face average lengths of stay of about six months--and much longer (close to ten months on average) if they are maximum security inmates facing the most serious charges. (20)

In this too, Cook County instantiates national trends. There were over 700,000 inmates in America's jails in 2004, (21) up from slightly over 180,000 in 1980. (22) The national data also suggest a system that is strained in its ability to process cases; as of 2002 the mean length of stay in the nation's jails stood at ten months. (23)

Behind the sheer numbers is a darker story. Much of the increased volume in the system is the product of war on drugs policies begun in the 1980s that remain in effect today. Nationally, as of 2002, they comprised over 32% of all state criminal felony convictions. (24) The benefits of this "war"--in terms of achieving reductions in the availability and use of illicit drugs--are dubious at best. (25) Its costs are very clear. Bogira does an effective anecdotal job of exposing these costs through the story of one Larry Bates, a decent man, caught up in addiction, driven to retail drug selling to finance his addiction, ensnared in the system, and ultimately--purposelessly--sentenced to over seven years in prison for selling small quantities of drugs. (26)

Although there is evidence that the prevalence of illicit drug use among blacks, whites, and Hispanics is roughly the same--i.e., that the...