When Law Fails: Making Sense of Miscarriages of Justice

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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
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.”

-The Law and Politics Book Review

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

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

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).

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).

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Table of Contents

Introduction: Lives on the Line: From Capital Punishment to Life without Parole
Charles J. Ogletree, Jr., and Austin Sarat
Part I: Life without Parole in Context
1 Mandatory Life and the Death of Equitable Discretion
Josh Bowers
2 Death-in-Prison Sentences: Overutilized and Underscrutinized
Jessica S. Henry
3 Creating the Permanent Prisoner
Sharon Dolovich
4 Life without Parole under Modern Theories of Punishment
Paul H. Robinson
Part II: Prospects for Reform
5 Defending Life
I. Bennett Capers
6 Life without Parole and the Hope for Real Sentencing Reform
Rachel E. Barkow
7 No Way Out? Life Sentences and the Politics of Penal Reform
Marie Gottschalk
8 Dignity and Risk: The Long Road from Graham v. Florida to Abolition of Life without Parole
Jonathan Simon
About the Contributors

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