Accessing Injustice
Elizabeth Saunders-Nevins, Maurice A. Deane School of Law at Hofstra University
Accessing Injustice takes a close look at a part of the criminal justice system
that is often unseen, but which affects a great many individuals: a
courtroom where low-level, municipal offenses are prosecuted. The court
was under the radar of almost everyone else in the Nassau County courthouse
and, as we were horrified to learn, it seemed to offer none of the procedural
protections that the defendants should have been entitled to. Defendants
were obligated to meet, pro se, with their prosecutors. They were not
advised of their right to counsel, or even appointed counsel. And they
were, routinely, charged hundreds of dollars that they could not pay.
They were confused and upset and provided little or no recourse. To learn
more about the proceedings, the Criminal Justice Clinic at Hofstra Law School
engaged in a court-watching study and documented the proceedings for five weeks
straight. The article explores the findings, as well as the policy
changes in the courthouse that we did (and did not) achieve as a result of
them. Ultimately, what we found is significant not only for what it says
about this one particular courtroom, but what this one particular courtroom
says about the state of justice for people charged with “low level” offenses
throughout the country.
The Cost of Accidental
Incarceration
Zina Makar, University of Baltimore School of Law
There has
been a progressive push for nearly three decades to allow for the wrongfully
convicted to seek compensation for their time served. There is no similar avenue of recourse,
however, for the millions of pre-trial detainees who lose months of their lives
before they are acquitted at trial or have their charges dropped. This lost time is pure loss. Therefore, the logical question is why these
analogous situations are treated so differently, especially given that
pre-trial detainees are granted substantially fewer procedural protections than
someone who has had a trial.
This Article
tackles that very question by tracing the root of the issue to the idea that
erroneous pre-trial incarceration is “accidental.” In this context, accidental means no bad
legal standard or clearly identifiable individual bad actor causes the problem
of uncompensated incarceration. Rather,
the problem is endemic to the entire system itself, which is overburdened by
volume and dumbly drifting along in an effort to stay afloat. Therefore, this problem necessitates a system
wide solution.