At exactly 8:30 Tuesday morning, the judge in courtroom 215 of Baltimore’s Mitchell courthouse is at the bench, ready for the day’s business, and she is not happy. “Wait until I start to throw books,” she says with a smile and clipped laugh not meant to convey humor.

She is angry and frustrated because not everyone is present for the day’s business to begin. An assistant state’s attorney is not present and a defense counsel can’t be located. A defendant who was to be brought over from the Baltimore City Detention Center for his bail review is also missing. “Any luck finding him?” the judge sharply queries the burly officer whose job it is to wrangle the shackled prisoners from the bull-pen behind the substantial wooden doors of this courtroom in this once grand, but now distinctly shabby courthouse.

I arrived before the doors opened this morning and waited outside under the eight Ionic columns that face Calvert Street. According to James F. Schneider, historian and archivist of the Circuit Court for Baltimore City, these columns “are among the largest monolithic columns in the world, cut from single blocks of marble, each weighing 35 tons and measuring 31 feet, 2-5/8 inches, 7 feet taller than the columns on the U. S. Capitol.” Schneider, in his A Guide to the Clarence M. Mitchell, Jr. Courthouse, writes that when it opened for business in January 1900, the courthouse “was designed to be a shrine sacred to the rule of law.” Time and car exhaust have made the marble carved from a Cockeysville quarry dirty, smudged, diminished, impugning the architecture's origins and symbolic intent.

The burly guard suggests to the judge that the missing prisoner is somehow lost at Central Booking and others would have to be consulted to find him. The judge picks up the receiver of the phone on her dais and calls someone to let them know she is not happy the prisoner is not present. Something must be done.

“And of course Warren Brown is late,” the judge finally offers, to no one in particular, of the prominent Baltimore defense attorney. “Mr. Brown hasn’t been on time in the whole history of the court,” she says with a short sweep of her arm, and then asks for the first case to be called.

Clouding both the judge’s mood and informing regular breakdowns of logistics in the courtroom is the incredible docket pressure that drives the quality of work done in this shrine to the rule of law. The volume of cases regularly overwhelms the individuals and institutional arrangements meant to mete out justice. What goes on in the Mitchell Courthouse is precisely what is described in William J. Stuntz’s The Collapse of American Criminal Justice. Stuntz was Henry J. Friendly Professor of Law at Harvard University until he died of cancer at age 52 earlier this year, just before the book’s publication. He was considered “an enormously influential scholar, and was widely viewed as the leading criminal procedure scholar of the past generation.” He writes:

Among the great untold stories of our time is this one: the last half of the twentieth century saw America’s criminal justice system unravel. … The nation’s record-shattering prison population has grown out of control. Still more so the African-American portion of that prison population: for black males, a term in the nearest penitentiary has become an ordinary life experience, a horrifying truth that wasn’t true a mere generation ago. Ordinary life experiences are poor deterrents, one reason why massive levels of criminal punishment coexist with historically high levels of urban violence.

Stuntz goes on to argue that “there are three keys to the system’s dysfunction, each of which took hold in the last sixty years.”

First, the rule of law collapsed. To a degree that had not been true in America’s past, official discretion rather than legal doctrines or juries' judgments came to determine criminal justice outcomes. Second, discrimination against both black suspects and black crime victims grew steadily worse—oddly, in an age of rising legal protection for civil rights. ... The third trend is the least familiar: a kind of pendulum justice took hold in the twentieth century’s second half … In the late 1960s and early 1970s, the United States had one of the most lenient justice systems in the world. By century’s end, that justice system was the harshest in the history of democratic government.

I am in the Mitchell Courthouse today because a former student of mine has been granted a review of his bail for the robbery and handgun offenses with which he has been wrongly charged. While perhaps most clearly seen in the almost universal use of the “plea bargain,” the “bail review” also gives an observer a lens through which to see in detail Stuntz’s point of how “official discretion” rather law or informed judgment have come to dominant the experience of going to court to seek justice.

An excellent example of the follies of that “official discretion” in the bail review, as well as how all is inflected by race in the courthouse, could be seen in the story of Brandon Mitchell, excellently reported recently by Justin Fenton of the Baltimore Sun.

Officials acknowledged an error was made when Mitchell was released last week on $50,000 bond on a first-degree murder charge, according to interviews and recordings of court hearings.

But ironically, when prosecutors appealed the decision in hopes of having Mitchell held without bond, District Court Judge Askew W. Gatewood Jr. said Mitchell’s good behavior while mistakenly out affirmed that he could indeed be released on bond. This time, Gatewood set the bond at $250,000, which he posted.

In determining bail, judges consider the allegations in the case, the victim’s prior record, and the risk of flight. Handgun-related charges, particularly murder and attempted murder cases, typically bring a heavy bail if any at all.

Gatewood declined to comment Friday in an e-mail response to a reporter’s questions. Though police and prosecutors have in the past been critical of such judicial decisions, police declined to comment and the state’s attorney’s office said they “respected the judge’s decision.”

The grandmother of Omar Johnson, the Southwest Baltimore teenager who Mitchell is accused of killing, is furious that he is walking freely instead of sitting in a jail cell. … Sheila Anderson, Johnson’s grandmother, wondered if Mitchell, who is white, has received different treatment because of his race. … “I’m at the point where I think it’s a racial issue,” she said. “I don’t think with anyone else that mistake would have been made."

Stuntz writes how such experiences both inform and produce a “crisis of legitimacy” for American criminal justice:

A system that locks up a large fraction of young black men might prompt resistance even if black men and women chose whom to imprison and for how long. … If those choices are made by outsiders, residents of the communities where mass incarceration hits hardest, or at least many of them, are bound to see the justice system as an alien force that does not have those communities’ best interests at heart. Once that happens, criminal punishment is, at best, a weak deterrent. In this case, the nation’s swollen prison population is not just a disaster, but a pointless disaster.

Watching the bail reviews this day I also see their ultimately arbitrary character. In some cases the judge asks to hear the facts of the case; in others, she doesn’t. The judge, while performing leadership and control in the courtroom, nearly universally defers to prosecutors and their narratives of what has happened and what should happen. She asks few leading or probing questions. The defense counsel are of greatly variable competence but all seems irrelevant after the colloquies between judge and prosecutor determine the fate of the black, male, and largely indigent clients that stand before them.

When my former student’s bail review occurs his defense counsel is all but explicitly shamed for her lack of preparation and feckless presentation. “For the purposes of this review counsel, I assume your client is guilty,” the judge sharply rebukes the defense lawyer. Yet perhaps it was the two rows of family, community members, and a former teacher there to vouchsafe my former student’s return to court for trial that the judge reduced his bail from a half-million dollars to the almost equally impossible quarter-million dollars.

In the hallway outside courtroom 215 in the Mitchell Courthouse, the mother of my former student collapses into a bench in tears. Her son had appeared in court in shackles and his unkempt hair matched a newly-grown and equally unkempt full beard that incongruously framed his 21-year-old face. He looked broken to me.

After leaving court, we proceeded into the purgatorial world of the Baltimore bail bondsmen and their various schemes and hustles that exploit a captive and vulnerable clientele—that story will have to wait for another time.

Nonetheless, at 3:30 Wednesday morning, my former student was released on bail. His mother texted out to all her supporters, “Praise God!” He will be home for Christmas.