Northwestern Report Highlights the Need for Culture Change in Cook County’s Court System

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The criminal legal system is divided into two main groups: insiders and outsiders. Court “insiders” include judges, clerks, prosecutors, defense attorneys, and other court staff; essentially, the individuals who are familiar with the legal system and are not at court for personal affairs. Court “outsiders” mostly include defendants and their loved ones; these are the people who are not formal actors in the criminal legal system, and who enter the courthouse knowing they have their life, liberty, and/or property on the line. The dichotomy between court insiders and outsiders results in an exclusive and unwelcoming environment for many outsiders.

In the spring of 2022, Northwestern Pritzker School of Law’s Journal of Criminal Law and Criminology published a groundbreaking article that explored the cultural division between insiders and outsiders, titled “How Culture Impacts Courtrooms: An Empirical Study of Alienation and Detachment in the Cook County Court System.”

The authors, Maria Hawilo, Kat Albrecht, Meredith Martin Rountree, and Thomas Geraghty (hereafter, Hawilo, et al. or “the authors”), conducted a study of the functioning of the Cook County criminal felony courtrooms through extensive court-watching data. From the 3,144 minutes of court-observation over four months, the authors concluded that the way court insiders interact with one another has created a general courtroom culture of isolation and alienation for any outsider to the criminal legal system due to “delay, court inefficiencies, and racialized inequities.”

Courtroom culture has been described by Hawilo, et al. as “a patterned way of thinking about the central tasks of and human relationships within an organization [and] a set of values and assumptions that underlie the statement, ‘this is the best way to do things.’” Courtroom culture has a significant influence on the outcomes of cases, on individuals, and on the court’s ability to resolve cases. 

Two scholars, James Eisenstein and Herbert Jacob, defined courtroom workgroups as the “cooperative working relationship between courtroom actors to resolve, rather than dispute, the cases in criminal courts,” which includes “prosecutors; defense attorneys; judges; and frequently the bail bondsmen and police; and a set of auxiliary personnel.” Further, criminologist Christi Metcalfe expanded on Eisenstein and Herbert’s literature on courtroom workgroup members and concluded that “the more workgroup members are familiar with one another, the better they can negotiate and avoid the formalities of adversarial proceedings.”

The exploration of how courtroom workgroup actors influence courtroom culture by previous scholars inspired the observational study performed by Hawilo, et. al. Their study explores how the culture created by courtroom insiders affects outsiders and the way they perceive and interact with the court. Specifically, racial disparities play a significant role in who enters the criminal legal system; for instance, race plays a large role in a person’s likelihood of being arrested, in treatment by judges and police officers, and in sentencing.

The court-watching implemented by Hawilo, et. al captured these issues in real time and their impact on those who interact with the court system. The authors study in 2018 consisted of 33 periods of observation from June 19 to October 16 for a total of 3,144 minutes across 15 courtrooms, and covering 215 different criminal cases. The judges were observed multiple times to avoid reliance on courtroom experiences that may have deviated from the norm. During observations, there were three main focuses: (1) information about each case, (2) information about how different groups of actors in the courtroom interacted with one another, and (3) inefficiencies in the courtroom.

The study revealed two categories of inefficiencies: micro-level failures and structural-level failures. Micro-level failures are “mistakes or decisions by individuals that fall short of current standards or practices in court functionality.” Structural-level failures are “breakdowns that occur because the larger system is ill-equipped to deal with systemic problems.”

Micro-levels barriers to justice, in aggregate, reveal a courtroom culture that marginalizes courtroom participants, specifically defendants, victims, family, and friends, and sometimes other legal actors. The court observer recorded a variety of access to justice issues that frequently occurred in Cook County courtrooms:

  • Inaccurate or Withheld Information. The miscommunication or complete lack of communication regarding courtroom locations left many court patrons confused, lost, and unable to find the correct courtroom. 
  • Absent Legal Actors. Legal actors, including defendants, prosecutors, and defense attorneys, often missed court appearances for various reasons. In addition to the in-attendance of such actors, it wasn’t uncommon for their absence to be un-communicated to others or for them to be unreachable by those who were impacted by their absence. 
  • Ill-Prepared Participants. Lack of attorney preparation is a common complaint among judges, specifically regarding record keeping, attendance, and general readiness.

Structural-level barriers highlight stark differences in courtroom experiences depending on the role of the courtroom actor. The study revealed how the systemic failures of substantial delays, lack of access to courtroom business, and lack of accountability, reinforce exclusiveness and powerlessness among courtroom outsiders. Structural-level failures demonstrate how “even if the court system were functioning optimally on a micro-level, these issues would nonetheless persist.” 

  • System Delay. The slow pace with which cases are adjudicated in Cook County’s criminal court is one of its most serious weaknesses. Due to its size, the Cook County court system is severely backlogged, and people are frequently subjected to significant trial delays. In 2016, over 1,000 incarcerated individuals were waiting for over two years for the beginning of their trials. Between 2015 and 2020, on average, only 73% of cases were resolved within a year, 46% within six months, and a mere 27% within three months. Delays and constant continuances are harmful and limiting to victims in need of resolution, attorneys whose work is interrupted or paused, and the accused, who often await resolution incarcerated, which has a ripple effect of a countless number of negative impacts to the accused and their loved ones.
  • Inaccessibility of Courtroom Business. Gallery members and relevant court actors often lack access to information presented by judges and clerks. The inaccessibility results from outsiders’ difficulty in understanding legal terminology, judges’ purposeful muting or turning down of microphones to limit audibility, and informal communications between court insiders, which leaves outsiders excluded or confused. Additionally, cell phones are prohibited from the courthouse, which limits communication between clients and attorneys and can be harmful to their case and court efficiency. Further, the purpose behind the no-phone policy is not communicated to court patrons, which decreases transparency in the legal system, in addition to prohibiting a valuable resource to defendants and observers. 
  • Lack of Accountability. Cook County has a tragic history of corruption and racism, resulting in countless wrongful convictions and major racial disparities in sentencing. Additionally, the system often fails to hold actors responsible for their actions, which results in confusion and further contributes to Cook County’s backlog of cases. Minor mishaps that occur at the individual level, such as inaccurate or withheld information, may become a larger structural-level failure when the court and legal system lack procedures to hold the correct person accountable. 

These mistakes and systemic failures have perpetuated legal cynicism among litigants and their families. Legal cynicism is the “cultural process whereby individuals and communities come to believe that the law will not protect them the way it should and therefore become detached and alienated from the legal system alleged to protect them.” 

Analyzing the culture of Cook County’s felony courtrooms through the lens of legal cynicism adds context to the micro-level and structural-level failures. The distrust and disbelief that the law will protect certain individuals and communities is in large part due to extremely disparate impacts of policing across Chicago’s neighborhoods, socioeconomic status, and racial groups. Thus, when similar negative experiences of law enforcement, crime, and violence are shared by many individuals within a community, the cynicism becomes part of the larger community’s culture. Legal cynicism in Chicago’s marginalized communities is  a result of poverty, involvement in the legal system, and unfair and racist treatment by legal actors.

The authors conclude with the recommendation that Cook County “felony criminal courts need systemic change, particularly a commitment to greater accountability, transparency, and anti-racism,” which starts with living up to the values put forth in the Illinois Supreme Court’s 2019 Core Values of the Strategic Agenda: fairness, accountability, integrity, and respect. While these values have been much-lauded in courts across the county, there have been few actionable steps to make these values a reality in Cook County. The authors advocate for court leadership that values these goals.

The Cook County courts must expand on the small number of examples of positive culture that the authors observed and make those examples the norm, rather than the exception.

  • Holding the Correct Actors Accountable. When judges take care to “ensure that undue burdens and blame [are] not placed on the wrong actors” and provide solutions, they take meaningful steps forward in creating a culture that combats detachment and provides agency to the outsider.
  • Improving the Transparency of the Courtroom. Judges and clerks can greatly increase the accessibility of their courtrooms at very little cost to them by simply spelling out defendants’ names or inviting family members inside the courtroom to better hear the proceeding. These actions make it clear to outsiders that they matter in the courtroom.
  • Encouraging a Culture of Attachment and Inclusion. Even something as simple as acknowledging the courtroom observers or the potential emotional well-being of the family can go a long way in creating a more inclusive culture. Judges and lawyers should treat all courtroom observers and participants with mutual respect and dignity to combat the detachment felt as a result of legal cynicism.
  • COVID-19 as an Opportunity to Recreate Courtroom Culture. The onset of a global pandemic and the logistical changes it has required have opened up a pathway for creating more positive courtroom culture. Maintaining the increased use of virtual technology for discovery, communications, and negotiations can allow the courts more time for substantive hearings, which can decrease the burden on court outsiders and reduce court delays, as status hearings and routine in-person witnesses, such as detectives, may not be needed as regularly.

Lastly, this article not only highlights the need for cultural reform in Cook County but also emphasizes the importance of continued court-watching efforts. “Vigorous monitoring by [independent] observers…both advances a culture of transparency and creates greater accountability.” At Chicago Appleseed Center for Fair Courts, we have developed an extensive court-watching program that supports our work for more equitable, accessible, and anti-racist courts in Cook County. As an example, observations of Cook County’s Central Bond Court highlighted the racist, ineffective, and unconstitutional use of wealth-based detention, leading to the passage of the Pretrial Fairness Act in 2021, which abolished the use of money bond in Illinois.

Chicago Appleseed has ongoing court-watching projects throughout Cook County’s court system. If you are interested in being a volunteer in our court-watching program, you can sign up here.

Lia Raves is a rising third-year law student at Loyola University Chicago School of Law and a Public Interest Law Initiative (PILI) Intern and Lauren May is a rising second-year student at New York University School of Law and Intern with Chicago Appleseed Center for Fair Courts.