Contemplating the Failure of Our Attempts at Justice

Even when we strive in good faith with our best efforts, we often fail.

“Like a pregnant woman who writhes and cries out in her pangs when she is near to giving birth, so were we because of you, O Lord; we were pregnant, we writhed, but we have given birth to wind. We have accomplished no deliverance in the earth….” (Isaiah 26:17-18 ESV)

These words were written approximately in the 700’s BC by the prophet, Isaiah. Yet, there are as relevant today as they were almost 3000 years ago.

That is my opinion, of course. What do I know?

As an attorney, I am in an unique position to speak to the American system of justice. I have seen it operate from the inside out, and I have participated in it for going on 30 years, so I think I have sufficient insight to be able to provide a well-informed opinion on the subject.

I was intrigued, even stricken by a bit of awe, in law school as I studied the history of American jurisprudence (with its roots in English common law, but for Louisiana, which has roots in the French legal system of justice). The principals, which build on themselves going back to ancient times, and the care and thought that informed American Jurisprudence is something for which I developed quite an appreciation. Many of those principals were, in turn, developed in view of the ancient texts that we call the Bible.

I graduated from law school at the age of 31, having much “real world” experience under my belt before law school, but I was filled, nevertheless, with the kind of naivete and idealism that is informed by the theory but is untried in the practice.

I have tried hard to carry with me the ideals of justice that inform our legal system, and I have fought for almost 30 years, now, to implement them to the extent that they are within my control of influence. Unfortunately, one person is not able to move those wheels of justice that grind very far off the course on which they doggedly and often very bluntly drive forward leaving casualties of justice in the great ruts they create.

Relative to current events, a 2018 report to the UN on the criminal justice system in the United States reveals some gross disparities in the outcomes. “African-American adults are 5.9 times as likely to be incarcerated than whites and Hispanics are 3.1 times as likely.” The report summarizes the disparities in this way:

“The source of such disparities is deeper and more systemic than explicit racial discrimination. The United States in effect operates two distinct criminal justice systems: one for wealthy people and another for poor people and people of color. The wealthy can access a vigorous adversary system replete with constitutional protections for defendants. Yet the experiences of poor and minority defendants within the criminal justice system often differ substantially from that model due to a number of factors, each of which contributes to the overrepresentation of such individuals in the system.”

Racial disparities in our criminal justice system are only one area in which our system of justice fails to provide the justice it promises. On the ground level, I saw the failure of justice nearly every time I stepped into a courtroom in thousands of ways, big and small.

When I was doing “family law” (a euphemism for divorce, mainly), I represented two different women in custody cases in which their husbands controlled the money. I ended up representing both of them pro bono (for free) because they couldn’t afford the huge attorneys’ fees that are involved in handling custody cases (well over $30,000 each, and this was 20 years ago). Most attorneys would have dropped them as soon as they couldn’t pay any more,. If I didn’t represent them, who would?

In both cases, the women were subject to psychological and emotional abuse, but not physical abuse. They were emotionally beaten down. They were weak, helpless and desperately needy. The husbands knew how to manipulate them and had the money to hire the best attorneys and experts to cast the psychological issues in their favor. Though I did my best with no funds, representing them for free, I was unable to get custody for either one of them because everything was stacked against them.

“Money makes the world go around” is how the saying goes, and that is certainly true in the legal system. We are familiar with the idea that the US Constitution guaranties free representation, but most people don’t realize how limited that guaranty is. It only applies to felony criminal charges. it does’t apply at all for misdemeanor charges or for civil issues, like divorce.

Unlike other legal systems in other countries, the rule of thumb in the American legal system is that each party is responsible to pay their own attorneys (with a few exceptions). That one principal stacks the deck in favor of people with money and limits access to the justice system for people without means. Many people (about one third of all people in the US) can’t afford to hire or pay for an attorney. Unless they find an attorney willing to represent them for a significantly reduced rate, or for free, they do not have access to justice.

Beyond that, though, justice is often left wanting. I had a judge take over a year to make a decision on a custody case after he was reassigned from one courtroom to another. The trial was conducted while he was still in the original courtroom, but he sat on it (the decision). He was, quite frankly, a lazy judge. After he was reassigned, he practically forgot about it. I had to petition him as often as I dared for an opinion – all the while the kids were in limbo, the parties were in limbo and my client was beyond distraught.

I had a judge fall asleep on the bench in the middle of a trial. This same judge joked that he went on the bench for his “retirement”. He usually didn’t bother to read the pleadings that were thoughtfully and carefully prepared. He just “shot from the hip”. I knew a judge who would issue orders he knew were not enforceable just because he could, knowing that the effort to challenge them would be expensive and time-consuming and, therefore, would not be very likely.

Don’t get me wrong; there are many very fine, conscientious and good judges, but not all of them.

Some people who become judges couldn’t make it as attorneys. Some weren’t very good attorneys, and, not surprisingly, don’t make very good judges. Judges are elected in the state where I practice. Most people don’t know the judges they are electing, and people elect judges knowing very little about them. The local Bar Association interviews the judge candidates and rates them, but not many people bother to read them (or even know about the ratings). Rarely do the best judge candidates get elected.

When judges are appointed, which is true of some judges in some jurisdictions, they are often chosen in a secretive process that smacks of an “old boys club” process. I know of one judge who was appointed (reportedly) because his friends on the bench felt sorry for him since he was floundering in his private practice. Again, the best candidates are often not chosen in an appointive process either.

Not all judges fit the negative descriptions I have painted here. Most judges do their best. Many judges have exceptional legal minds who are fair-minded and hard-working. The point is that even a very good legal system, informed by the very best principals of justice, will not produce justice if the people involved in the system are not justice-minded.

I don’t do litigation anymore, and one of the primary reasons for that is my disillusionment with the system and the people in the system who fall short of the ideals that everyone knows but few (it seems) are capable of achieving. I don’t have the patience for it. I have come to the conclusion that I can help people better by working to keep them out of court (if they will listen to me).

I am reminded, as I read through Isaiah, that though we may strive for deliverance through our human endeavors, we inevitably fall short. We often “give birth to the wind”. Even when we strive in good faith with our best efforts, we often fail. I failed for the two women I represented in their custody battles. I lost many battles I felt I should have won, and I won some (honestly) many battles I thought I shouldn’t have won.

Yet, we must not forget that God is control. Paul says in Romans 8:19-21,

“For the creation waits in eager expectation for the children of God to be revealed. For the creation was subjected to frustration, not by its own choice, but by the will of the one who subjected it, in hope that the creation itself will be liberated from its bondage to decay and brought into the freedom and glory of the children of God.”

The world seems designed to inform us through our own experiences, despite our best efforts, that we are unable to achieve the true justice we long to obtain. Not that we shouldn’t try. We don’t truly learn how unachievable it is until we have actually given it our best efforts. Just as we don’t truly know how sinful we are until we have used our best efforts to be good.

No one knows how desperately we need the salvation and the justice God offers more than the one who has really devoted himself/herself to being good and doing justice. Where our attempts fail, however, is where God intervenes.We cling to the promise that “God causes everything [even our failed or corrupt efforts] to work together for the good of those who love God and are called according to his purpose for them”. (Romans 8:28)

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