It was 10:30 AM on Friday—hour three of waiting for my case to be called in West Roxbury District Court “virtual session.” I was happy to wait; from my perspective as a student public defender, I’d hit the lottery with the presiding judge. In several cases, he leaned on prosecutors to count months of pandemic delays as credit toward probation time. In one case, he announced, “I don’t think there’s enough in this police report to make out a case,” and insisted the prosecutor dismiss it or conduct a probable cause hearing on the spot, adding “maybe you can guess which way I’d lean if we went down that path.”
I was pleased to present my case to the Judge not just because he was dealing favorable outcomes—but also because he recognized what unfortunately few in robes do: the true toll that prosecution takes. In most cases, the sentence (if there ever is one) is only part of the punishment. Having a case open is itself a punishment.
It is extraordinarily stressful to have a criminal case lurking in the background of your life. You wake up every day knowing that if things don’t go your way, you may end up spending months in jail, with a criminal record forever marring your future, being subject to deportation, losing your housing, or even having your kids taken away.
Pending charges also have immediate, tangible impacts. Some “collateral consequences” of prosecution, such as child removal proceedings and ineligibility for public benefits, can be triggered by a mere accusation. Pending criminal charges show up on credit reports run by landlords and background checks run by employers.
Every criminal case is a dark and menacing cloud, regardless of how severe the charges are.
At one point that Friday morning, after someone accidentally unmuted themselves and derailed a hearing for the umpteenth time, the Judge stopped the proceedings. “Everybody listen up. I want you all to know that the minute I am allowed to make you come back in here, there will be no more Zoom court. The interruptions and distractions, people doing court in their cars—that’s all disruptive and inappropriate. But the real problem is that we get nothing accomplished this way. In person, you’re both here, you can talk to each other without the internet breaking up. You hauled yourself here so you don’t want to leave empty handed. The bottom line is you get things done.”
Having observed the Judge for hours, I knew that he had sympathy for the people being dragged through the system. He wanted them to be able to move on with their lives, and he believed that they would enjoy better outcomes when a prosecutor saw them as a person and not a blue square.
At the same time, I was unsettled by his rant. When I heard “in person, you get things done,” alarm bells went off in my head. It is possible to incarcerate two million people and supervise 4.5 million more only because the system is so good at “getting stuff done.” We can close thousands of cases a day because prosecutors treat defendants as names on a page and not human beings, because sentences are assigned with no concern for the impact they will have on the person being sentenced (or their family or community), because we consider cases “resolved” without any regard for whether the harm that was caused was repaired, and because 95+ percent of those accused of a crime waive their constitutional rights to a trial before a jury of their peers.
The Judge was right to be upset about wasted time and resources. But it is important to remember that back in the good ol’ days before the pandemic, when “stuff got done,” what may have felt like efficiency was really just speeding up the machinery of the New Jim Crow.
We should care about the efficiency of the criminal legal system. But we must define efficiency appropriately. Does each hour and dollar we invest in it do all that it can to repair harm, help individuals thrive, and build strong communities? These are the metrics that matter. And if we used them to measure our current system, we would recognize that it is disastrously inefficient, especially on the days when a lot “gets done.”