Abstract
Amy Baumann Grau on Hard Bargains and Crook County.
Hard Bargains: The Coercive Power of Drug Laws in Federal Court by Mona Lynch, Russell Sage Foundation, 2016, 192 pages
Crook County: Racism and Injustice in America’s Largest Criminal Court by Nicole Gonzalez Van Cleve, Stanford University Press, 2016, 272 pages
Recent years have brought some interesting changes within and proposed ideas for the U.S. criminal justice system. Ironically, many of these new ideas and changes are at cross-purposes. The federal government moves in an increasingly punitive direction, while local and state governments have, for certain crimes, made efforts to decrease punishments. On the federal side, President Trump has reportedly equated drug dealers with serial killers, and he advocates for the use of the death penalty for drug traffickers (a possibility that does exist under current law but has not been pursued without also involving a homicide). Former Attorney General Jeff Sessions directed U.S. Attorneys to charge the majority of drug offenders with the most serious possible charges. Meanwhile, the number of states legalizing marijuana for recreational or medicinal use has grown alongside movements toward reducing penalties for some drug offenders. Cities and states, most notably Seattle and San Francisco, responded to the federal crackdown on drug offenders, for instance, by vacating or dismissing sentences for misdemeanor marijuana offenses and reviewing felony marijuana cases. This mismatch in punitive direction between the federal government and local governments is evidence of a larger, more pervasive problem within the criminal justice system: discord between the aim or intent of policies and the real, lived results of those policies.
Two books, Hard Bargains by Mona Lynch and Crook County by Nicole Gonzalez Van Cleve, illustrate the discord between policies and lived reality of the criminal courts. Both books highlight numerous occurrences when the original intent of laws or decisions by actors within the criminal justice system leads to perverted justice in different court systems. While Lynch’s work focuses on drug laws in federal courts, Van Cleve illustrates the pervasive racism evident in the court system of Cook County, Illinois. Both scholars find evidence that policies and ideologies meant to ensure better, more fair treatment do not live up to those expectations in reality.
In Hard Bargains, Lynch details the historical development of drug laws and provides an on-the-ground account of the practices, policies, and application of law used by federal prosecutors. Lynch spends time in three federal districts throughout the United States: the northeast, the southeast, and the southwest. Each employs different philosophies in its quest to punish drug offenders ranging from a paternalistic and therapeutic bent (northeast courts) to encouraging compliance and respect for the law (southeast courts) and using punishment to bar immigrants from future entry into the United States (southwest courts). Regardless of the district’s philosophy, the end result is a court system in which punishment is almost exclusively dictated by prosecutorial decisions.
Prosecutors use a variety of tools to increase the length of punishment, encourage (if not coerce) cooperation, and otherwise tie the hands of the justice system through mandatory minimum sentencing. Notably, Lynch explains the expansion of prosecutorial power and influence as a result of policy changes such as mandatory minimums originally enacted to minimize sentence disparities between offenders. Policies were changed to lessen judicial discretion with the hope of more “fair” or “equal” treatment of offenders, regardless of their demographic or personal characteristics. The implementation of these policies, however, did not erase disparate treatment as discretion was shifted into the hands of prosecutors and unequal justice persists. As Lynch states, “Numerous reform efforts… have demonstrated that the best intentions can sometimes be the ripest for perversion” (140). Court actors learned how to project an appearance of appropriately following the guidelines despite using them to impose their own values and ideologies. For example, one prosecutor told Lynch that it became an “art” to get around the guidelines to achieve their end goals (132). Thus, the specific district actors and the district’s punishment ideology have a great influence on whom is prosecuted and the punishments they receive. Such outcomes are surely not the intent behind sentencing guidelines and federal law, but they are the sad reality.
Van Cleve, in Crook County, details the pervasive colorblind culture of the Cook County, Illinois criminal court. Through her meticulous methodological approach that draws on field notes, over one thousand hours of court observations by court watchers, and interviews with judges, private attorneys, public defenders, and prosecutors, Van Cleve outlines a legal habitus allowing individual actors to appear blameless in the practice of racialized justice. Van Cleve describes how this legal habitus shapes the moral boundaries between mostly White professionals and minority offenders resulting in a court system of perverted justice: defense attorneys hoping that judges and prosecutors fail to keep up with changing laws; courtrooms where court actors engage in gallows humor, roll their eyes, and mock defendants and their “Black” names; and the collection of mugshots, crime scene photos, and intake photos as trophies. Reading Crook County, it becomes clear that the court system is a mere charade of what it is meant to be.
The general public experiences racialized treatment, too, as they enter the courthouse or watch proceedings from the gallery. Despite not being on trial, people of color who are friends or family members of defendants find themselves on the receiving end of lectures or worse as court actors take it upon themselves to teach them the appropriate behaviors to demonstrate respect for the court. In Van Cleve’s account, this racialized treatment not only affects family members and friends of court actors, but also researchers examining the courts. Van Cleve describes how White researchers are accorded privileges, such as getting through security more easily and being allowed to bring drinks or snacks, while Black and Latinx researchers are treated as criminal and assumed to be defendants.
Van Cleve’s focus on the import (and comport) of court actors comes at the expense of recognizing the people affected by the policies and decisions made by them. Only a few offenders or their families are fully recognized as a part of the story in Van Cleve’s work. To some degree, this echoes the practices of the court in which the offenders are seen as largely interchangeable and burdens on the court’s resources rather than individuals with lives, dreams, and desires. In comparison, although also focusing on the court system and its actors, Lynch better articulates the people and lives impacted by specific courtroom policies and practices by interweaving examples of defendants into the mix to show how policies were applied to uphold a court’s punishment philosophy.
Despite justice being “blind” (buttressed with claims of colorblindness), we see in both books pervasive micro-aggressions in court culture. As Van Cleve describes, “This visual of a black and brown entrance and a separate entrance for whites was my first clue of a double system of justice—one for people of color and the poor, and one for wealthy whites” (16). Documenting racial degradation ceremonies whereby the stigmatization of offenders through racialized tropes of “mopes” or Jezebels and what she calls the “white privilege pipeline,” Van Cleve illustrates numerous experiences for racial/ethnic minorities and poor Whites that upper- and middle-class Whites rarely, if ever, experience in the halls of justice. Similarly, Lynch illustrates how racialized justice is meted out differently depending upon the specific district within the federal system. The northeast district is characterized as having a paternalistic ethos, with judges/prosecutors punishing the poor, Black community in order to save it from itself. In the southwest, the court system split into divergent paths depending upon the immigration status of the offender; the case becomes mostly an immigration issue for undocumented persons, sticks strictly to their drug activity for legal citizens, and reserves the most punitive responses for documented immigrants.
Hard Bargains and Crook County share a common focus on court systems and the specific mechanisms that perpetuate inequality. Both carry implications for criminal justice reform, particularly with regard to cultural instead of policy changes. Lynch’s discussion on the changes to federal sentencing reform, specifically the shift from judicial discretion to prosecutorial discretion, indicates how policy changes are enacted with the aim of lessening disparities, but policymakers fail to account for differences in court culture that can impact the effectiveness and disparities resulting from their reforms. Lynch provides several suggestions to help address these problems. For example, her solutions include overhauling the criminal code and sentencing guidelines, reducing the maximums for each subcategory of drug offense, and revisiting prosecutorial discretion and the tools they use to increase sentences. Van Cleve also offers a solution, but one that all of us can take part in: go to the courts and witness what attorneys and judges do. Likely, both sets of suggestions are necessary if we are to truly achieve change and reform in the court system.
Despite the imagery of blindfolded Lady Justice, Lynch in Hard Bargains and Van Cleve in Crook County detail a system that intends to be colorblind and fair to all, but in reality, metes out justice in ways that are greatly influenced by race, immigration status, and class. As a prosecutor tells Van Cleve, “Justice?… There’s no justice here” (135).