No More “This is the Way We Have Always Done It”

Too often we see injustice – a child is shackled, a person is summarily thrown in jail because they did not pay court costs, or a court denies a person a lawyer because they own a run-down Chevy van worth a few hundred dollars.  Two questions immediately come to mind: First, why is this happening?  Second, where is the defense lawyer challenging this abuse?

Too often the answer to why it is happening is ‘this is the way we have always done it.’   Even worse, often when questioned, in answer to the second question the defense attorney will defend the practice or claim any effort to intervene would have been pointless or even harmful to the client by engendering the animosity of the court.  But how did this broken culture come about?  How can someone sworn to defend another become this way? 

The reality is that it is human nature.  The Stockholm Syndrome, sometimes referred to as capture bonding, is a phenomenon where a victim starts to adopt the same values as those in power over them.  The Helsinki Syndrome, sometimes confused with the Stockholm Syndrome, is similar but is more of a case of group think or wilful blindness.  Both of these psychological phenomena are at play every day in our work.  We are beaten back every day, our motives are questioned, judges and prosecutors try to bully us into capitulating, even our bosses may be against us, and the community becomes outraged when there is a heinous crime with cries questioning our morality phrased along the lines of: “How can you defend that person?”

But it happens and it happens often.  We capitulate, we adopt the group think, we become capture bonded.  (To see this play out I would encourage you to read Ordinary Injustice: How America Holds Court by Amy Bach; and watch Kids For Cash, directed by Robert May).

I have my own story of failure – for too many years I stood in court and watched individuals arrested and summarily jailed on contempt or held in lieu of some money owed but unpaid.  When I questioned the practice I was quickly and sternly told “this is the way we have always done it.”  My fellow public defenders, who had been in the courts much longer than me, did not object to the practice.  Who was I?  To my shame, I did not immediately investigate, I did not immediately do research.  When I finally did look into the law I was horrified that I had let so many be mistreated while I stood by. 

When I went back, this time unwilling to accept that ‘this is the way we have always done it’ as an answer I was pressured to remain part of the group – ‘you were part of this, you did this with us.’  But this time I was not alone.  My friends were with me, my office was behind me, and my duty was certain.  Years of litigation and years of fighting joined by many others led to change, first locally and ultimately across the entire state.  

My lesson was learned.  I can never undo the harm I let happen.  But I can make sure I never let ‘this is the way we have always done it’ ever happen again.  And I ask that each of you make sure you never accept that as an answer in your role.  Whether you are a lawyer, an investigator, a secretary, or work in any other role in providing and supporting our work, never accept that answer.  For as long as we do that we can change the system for the better.