When Law Fails: Making Sense of Miscarriages of Justice

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Overview

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.

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Editorial Reviews

From the Publisher

“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.”
-Steve Bright,President, Southern Center for Human Rights

“Ogletree and Sarat have assembled an outstanding group of contributors for these original essays.”
-Library Journal

,

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.”

-Congressman John Conyers

,

“The essays are interesting, informative and thought-provoking.”

-New York Law Journal,

“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 law’s 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.”
-Choice

,

Library Journal

Based on 200-plus exonerations in fewer than 20 years, this book argues that wrongful convictions are not an anomaly but rather the outcome of a legal system that commonly fails. Part of a series originating with Harvard Law School's Charles Hamilton Houston Institute for Race & Justice (CHHIRJ), these ten essays discuss legal system shortcomings, their basis, and possible ways that inherent mechanisms of the law contribute to injustice. Each essay delves into a different way of looking at the miscarriage of justice, be it legal, political, or cultural. Ogletree (Jesse Climenko Professor of Law & executive director, CHHIRJ, Harvard Law Sch.; From Lynch Mobs to the Killing State) and Sarat (William Nelson Cromwell Professor of Jurisprudence and Political Science, Amherst Coll.; Pain, Death, and the Law) have assembled an outstanding group of contributors for these original essays. Recommended for academic and large public libraries.
—Krista Bush

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Product Details

  • ISBN-13: 9780814740521
  • Publisher: New York University Press
  • Publication date: 1/1/2009
  • Edition description: New Edition
  • Pages: 359
  • Product dimensions: 5.90 (w) x 8.90 (h) x 0.80 (d)

Meet the Author

Charles J. Ogletree, Jr. is Jesse Climenko Professor of Law and Executive Director of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School. Previous collaborations for NYU Press with Austin Sarat include From Lynch Mobs to the Killing State: Race and the Death Penalty in America (2006), When Law Fails: Making Sense of Miscarraiges of Justice (2009), and The Road to Abolition? The Future of Capital Punishment in the United States (2010).

Austin Sarat is William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. Previous collaborations for NYU Press with Charles J. Ogletree include From Lynch Mobs to the Killing State: Race and the Death Penalty in America (2006), When Law Fails: Making Sense of Miscarraiges of Justice (2009), and The Road to Abolition? The Future of Capital Punishment in the United States (2010).

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Table of Contents

Acknowledgments ix

Introduction Charles J. Ogletree, Jr. Austin Sarat 1

Part I On the Meaning and Significance of Miscarriages of Justice

1 The Case of "Death for a Dollar Ninety-Five": Miscarriages of Justice and Constructions of American Identity Mary L. Dudziak 25

2 When Law Fails: History, Genius, and Unhealed Wounds after Tulsa's Race Riot Charles J. Ogletree, Jr. 50

3 Margins of Error Robert Weisberg 70

Part II Miscarriages of Justice and Legal Processes

4 Recovering the Craft of Policing: Wrongful Convictions, the War on Crime, and the Problem of Security Jonathan Simon 115

5 Kalven and Zeisel in the Twenty-First Century: Is the Jury Still the Defendant's Friend? Daniel Givelber 140

6 Extreme Punishment Douglas A. Berman 163

7 Miscarriages of Mercy? Linda Ross Meyer 185

8 Memorializing Miscarriages of Justice: Clemency Petitions in the Killing State Austin Sarat 229

Part III Reconceptualizing Miscarriages of Justice

9 Miscarriage of Justice as Misnomer Markus D. Dubber 281

10 The Scale of Injustice Patricia Ewick 303

Contributors 329

Index 331

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