On April 15 Nicole Gonzalez Van Cleve’s op-ed piece entitled Chicago’s Racist Courts was published by the New York Times. It was prompted by the report recently issued by Mayor Rahm Emanuel noting that racism was rampant in the Chicago Police Department. Van Cleve, a Tulane University scholar and the author of another just released publication—Crook County: Racism and Injustice in America’s Largest Criminal Court (Stanford University Press 2016)—used her first hand knowledge of the Chicago criminal court system to opine on the pervasive, shockingly overt racism among those running the prosecuting and judicial systems in the city. In short, if you put together the Mayor’s report and Van Cleve’s scholarly work, there can be little doubt that Chicago’s criminal justice system is a cauldron of misbehavior.
At one level this is not surprising. The ongoing series of exposes about police violence, the pervasive use of low level charges and arrests to wring money from the pockets of the poor, wrongful convictions and death sentences, and an array of other forms of injustice has created a sense that something is deeply wrong with the American legal system. Why should Chicago be any more immune from public criticism than Ferguson or New York City?
But the ongoing, contemporary series of police and judicial crises may lead us to forget how long this sort of racism has been allowed to operate. Just shy of fifty years ago when I was on the Editorial Board of the University of Chicago Law Review while a law student, the Review published a lengthy student generated and written study of continuances in the Cook County court system. Laura Banfield & C. David Anderson, Continuances in the Cook County Criminal Courts, 35 U. Chi. L. Rev. 259 (1968). The intent was to investigate the connections between delay and the provision of justice in the courts. An enormous amount of data was gathered, including information about the race of the defendants, whether they had private or publicly provided attorneys, the charges laid against them, the number of continuances in each case, the prior criminal records of the defendants, and a host of other items. As the study unfolded a series of conclusions reaching well beyond the original intent of the project emerged—including the existence of pervasive racism in the Chicago courts. The authors of the study wrote:
The cases of white defendants involve more court appearances than the cases of nonwhites, and this differential holds when whites and non-whites are matched by type of crime, seriousness of crime, type of lawyer, bail status, and plea history. This disparity cannot be attributed to the relative poverty of non-whites, and the consequent inability to command a tenacious defense. Some racial differences exist between the public defender and jailed defendant populations on the one hand, and the general defendant population on the other. Non-whites comprise almost the same portion of the total defendant population (58%) as of the Public Defender’s clients (62%); they comprise 66% of the defendants not able to make bail, as against 58% of the total defendant population for which both bail and race information were available. But these differences do not explain why 32% of white defendants’ cases, but only 20% of non-white defendants’ cases, last for more than 8 court appearances. Among both the Public Defender’s clients, and the jailed defendants, where difference in resources are presumably not significant, whites get more continuances. The relationship between race and continuances was somewhat surprising to the authors of this study, who had assumed that it would be more or less camouflaged in other categorizations rather than visible on the surface. The sample data points to the conclusion, however, that lawyers—and probably judges, states’ attorneys, and the system as a whole—pay less attention to Negro defendants and take less time with their cases. Read more