When Law Fails: Making Sense of Miscarriages of Justice

Published by New York University Press 2009

When Law Fails

Making Sense of Miscarriages of Justice

Edited by: Charles J. Ogletree Jr. and Austin Sarat

Volume 3 in the series The Charles Hamilton Houston Institute Series on Race and Justice

https://doi.org/10.18574/nyu/9780814762554.001.0001

Overview
Contents

About this book

Since 1989, there have been over 200 post-conviction DNA exonerations in the United States. On the surface, the release of innocent people from prison could be seen as a victory for the criminal justice system: the wrong person went to jail, but the mistake was fixed and the accused set free. A closer look at miscarriages of justice, however, reveals that such errors are not aberrations but deeply revealing, common features of our legal system.

The ten original essays in When Law Fails view wrongful convictions not as random mistakes but as organic outcomes of a misshaped larger system that is rife with faulty eyewitness identifications, false confessions, biased juries, and racial discrimination. Distinguished legal thinkers Charles J. Ogletree, Jr., and Austin Sarat have assembled a stellar group of contributors who try to make sense of justice gone wrong and to answer urgent questions. Are miscarriages of justice systemic or symptomatic, or are they mostly idiosyncratic? What are the broader implications of justice gone awry for the ways we think about law? Are there ways of reconceptualizing legal missteps that are particularly useful or illuminating? These instructive essays both address the questions and point the way toward further discussion.

When Law Fails reveals the dramatic consequences as well as the daily realities of breakdowns in the law’s ability to deliver justice swiftly and fairly, and calls on us to look beyond headline-grabbing exonerations to see how failure is embedded in the legal system itself. Once we are able to recognize miscarriages of justice we will be able to begin to fix our broken legal system.

Contributors: Douglas A. Berman, Markus D. Dubber, Mary L. Dudziak, Patricia Ewick, Daniel Givelber, Linda Ross Meyer, Charles J. Ogletree, Jr., Austin Sarat, Jonathan Simon, and Robert Weisberg.

Author / Editor information

Ogletree Jr. Charles J. :

Charles J. Ogletree, Jr. is the Jesse Climenko Professor of Law and Executive Director of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School. He is the author of All Deliberate Speed: Reflections on the First Half-Century of Brown v. Board of Education (WW Norton and Company, 2004) and Co-Author of From Lynch Mobs to the Killing State: Race and the Death Penalty in America.Sarat Austin :

Austin Sarat is William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College in Amherst, Massachusetts. He has written or edited dozens of books, including Lethal Injection and the False Promise of Humane Execution (Stanford 2022), Law's Infamy: Understanding the Canon of Bad Law (NYU 2021), and Cause Lawyering and the State in a Global Era (Oxford 2001), which won the 2004 Reginald Heber Smith Book Award.Charles J. Ogletree, Jr. (Editor)
Charles J. Ogletree, Jr. is the Jesse Climenko Professor of Law and Executive Director of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School. He is the author of All Deliberate Speed: Reflections on the First Half-Century of Brown v. Board of Education (WW Norton and Company, 2004) and Co-Author of From Lynch Mobs to the Killing State: Race and the Death Penalty in America.

Austin Sarat (Editor)
Austin Sarat is William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College in Amherst, Massachusetts. He has written or edited dozens of books, including Lethal Injection and the False Promise of Humane Execution (Stanford 2022), Law's Infamy: Understanding the Canon of Bad Law (NYU 2021), and Cause Lawyering and the State in a Global Era (Oxford 2001), which won the 2004 Reginald Heber Smith Book Award.

Reviews

When Law Fails is a thoughtful consideration of the criminal justice system and the embedded failures that lie within. The book illustrates both the drama and daily consequences of miscarriages of justice.

Steve Bright,President, Southern Center for Human Rights:
The advent of DNA evidence has revealed serious flaws in the criminal justice system, resulting in the conviction of innocent people. Anyone concerned about correcting the unfairness and imbalance in the system should read this book.

Congressman John Conyers:
When Law Fails provides a timely lesson in why we must remain diligent in our oversight of the legal system. This compelling collection of essays provides a stark reminder of the human cost of failure and provides a roadmap for addressing inequities in our legal system.

Martha Minow,co-author of Breaking the Cycles of Hatred: Memory, Law, and Repair:
Bringing into view detailed stories of failures in American legal proceedings, When Law Fails also exposes the patterns of national self-interest, institutional failure, and professional prerogative that compound and bury the errors.

Ogletree and Sarat include some of the best contemporary scholars within the field of law and society in this collection that highlights numerous historical examples of laws failure to bring justice. The detail of each contribution is nearly flawless, as is the analysis. This edited volume is a wonderful addition to the various fields within jurisprudence. . . . Highly recommended.

Ogletree and Sarat have assembled an outstanding group of contributors for these original essays.

The essays are interesting, informative and thought-provoking.

Topics

Frontmatter Publicly Available Download PDF	i
Contents Publicly Available Download PDF	vii
Acknowledgments Publicly Available Download PDF	ix
Introduction Charles J. Ogletree and Austin Sarat Requires Authentication Unlicensed Licensed Download PDF	1
Part I. On the Meaning and Signifi cance of Miscarriages of Justice
Chapter 1. Th e Case of “Death for a Dollar Ninety-Five” Miscarriages of Justice and Constructions of American Identity Mary L. Dudziak Requires Authentication Unlicensed Licensed Download PDF	25
Chapter 2. When Law Fails History, Genius, and Unhealed Wounds aft er Tulsa’s Race Riot Charles J. Ogletree Requires Authentication Unlicensed Licensed Download PDF	50
Chapter 3. Margins of Error Robert Weisberg Requires Authentication Unlicensed Licensed Download PDF	70
Part II. Miscarriages of Justice and Legal Processes
Chapter 4. Recovering the Craft of Policing Wrongful Convictions, the War on Crime, and the Problem of Security Jonathan Simon Requires Authentication Unlicensed Licensed Download PDF	115
Chapter 5. Kalven and Zeisel in the Twenty-First Century Is the Jury Still the Defendant’s Friend? Daniel Givelber Requires Authentication Unlicensed Licensed Download PDF	140
Chapter 6. Extreme Punishment Douglas A. Berman Requires Authentication Unlicensed Licensed Download PDF	163
Chapter 7. Miscarriages of Mercy? Linda Ross Meyer Requires Authentication Unlicensed Licensed Download PDF	185
Chapter 8. Memorializing Miscarriages of Justice Clemency Petitions in the Killing State Austin Sarat Requires Authentication Unlicensed Licensed Download PDF	229
Part III. Reconceptualizing Miscarriages of Justice
Chapter 9. Miscarriage of Justice as Misnomer Markus D. Dubber Requires Authentication Unlicensed Licensed Download PDF	281
Chapter 10. The Scale of Injustice Patricia Ewick Requires Authentication Unlicensed Licensed Download PDF	303
Contributors Requires Authentication Unlicensed Licensed Download PDF	329
Index Requires Authentication Unlicensed Licensed Download PDF	331

Language: English
Publisher: New York University Press
Audience: Professional and scholarly;
Keywords: ability; beyond; breakdowns; calls; consequences; daily; deliver; dramatic; embedded; exonerations; failure; fairly; headline-grabbing; itself; justice; laws; legal; look; realities; Reveals; swiftly; system; well

eBook

Published: January 1, 2009
ISBN: 9780814762554