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When Law Fails

Making Sense of Miscarriages of Justice

Jr., Charles Ogletree, Austin Sarat

Publication Year: 2009

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.

Published by: NYU Press

Title Page, Copyright, Dedication

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pp. ix-x

We are grateful for the enthusiastic participation and insightful contributions of the distinguished scholars whose work is included in this volume. Their work was first shared at a workshop sponsored by the Charles Hamilton Houston Institute for Race and Justice on November 17 – 18, 2006. We gratefully acknowledge the help of the institute’s dedicated and talented...

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pp. 1-22

Perhaps it is in the confluence of DNA testing, the commercial boon of reality TV drama, and a natural inclination for redemption stories that we find “miscarriages of justice” more and more the stuff of popular culture. The successful off -Broadway production of The Exonerated tells the story of six death-row inmates who get freed before their executions. The play...

Part I: On the Meaning and Significance of Miscarriages of Justice

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pp. 23-24

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Chapter 1: The Case of “Death for a Dollar Ninety-Five”: Miscarriages of Justice and Constructions of American Identity

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pp. 25-49

One July night in Alabama in 1957, a story began that would capture, for a moment, the attention of the world. That it involved a man, a woman, and a small amount of money, all could agree. The man was black, the woman was white, the criminal charge was robbery. The penalty was death. About the remaining details, there were diff erent stories, but one thing was clear:...

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Chapter 2: When Law Fails: History, Genius, and Unhealed Wounds after Tulsa’s Race Riot

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pp. 50-69

On January 25, 2007, the esteemed American historian John Hope Franklin turned 92. Dr. Franklin has led a rich and storied life and continues to win great acclaim and success in the academy and as a tireless public servant. Even as he celebrates the astonishing accomplishments of his 92 years, though, he cannot help but be haunted by events of May 31, 1921...

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Chapter 3: Margins of Error

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pp. 70-112

Is the legal system responsible for miscarriages of justice? The question is odd and full of ambiguities, and that is why I pose it at the start. I would not aspire to take on the great, grand questions about the relationship between positive law or legal institutions on the one hand and justice on the other. But I do want to explore the problem of when and how the institutions...

Part II: Miscarriages of Justice and Legal Processes

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pp. 113-114

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

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pp. 115-139

In recent years there have been few more poignant examples of miscarriage of justice than the scores of prisoners exonerated by DNA tests that disprove key aspects of the prosecution’s case against them (e.g., that the defendant’s semen or blood was found on the victim). Illuminated by DNA evidence,1 stories of devastation and tragedy have been repeatedly...

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Chapter 5: Kalven and Zeisel in the Twenty-First Century: Is the Jury Still the Defendant’s Friend?

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pp. 140-162

We now recognize that our system of determining criminal guilt is fallible. We make both kinds of errors: we acquit the guilty, and we convict the innocent. The latter practice — convicting someone innocent of the crime — has traditionally been identifi ed as the error we strive hardest to avoid. For most of the twentieth century, those who participated in and...

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Chapter 6: Extreme Punishment

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pp. 163-184

The wrongful punishment of the innocent receives considerable academic and public attention. The perceived underpunishment of the guilty not only receives much attention but also frequently prompts new criminal laws or increased sentencing terms. But extreme punishments of the guilty are rarely even noticed by anyone other than those enduring extreme punishment...

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Chapter 7: Miscarriages of Mercy?

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pp. 185-228

In 2003, Iraqi General Mowhoush died in American custody aft er Chief Warrant Officer Lewis Welshofer stuffed him head first in a sleeping bag and sat on his chest. There were also allegations that Welshofer used beating and waterboarding as interrogation techniques. Welshofer was convicted by court-martial of negligent homicide, reprimanded, restricted to...

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Chapter 8: Memorializing Miscarriages of Justice: Clemency Petitions in the Killing State

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pp. 229-278

The 1990s brought increased attention to the problem and prevalence of miscarriages of justice in capital cases in the United States.1 Dramatic exonerations from death row,2 rigorous empirical studies,3 and judicial decisions acknowledging failures in the death penalty system4 have made a compelling case that, where the stakes are highest, the law fails with...

Part III: Reconceptualizing Miscarriages of Justice

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pp. 279-280

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Chapter 9: Miscarriage of Justice as Misnomer

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pp. 281-302

As state action, the penal process might usefully be analyzed from two perspectives, police and law.1 From the standpoint of police, the penal process is a system for the identification and elimination, or at least reduction, of human risks to the state’s police, understood in the traditional sense of good order or welfare.2 As a species of police, penality is rooted...

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Chapter 10: The Scale of Injustice

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pp. 303-328

The phrase “miscarriage of justice” connotes a failing of monumental scale. First, the phrase suggests an event — a decision, a verdict, an act — that is exceptional, a singular betrayal of the established ideals and practices of law. The word “miscarriage” suggests an untoward event, an...


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pp. 329-330


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pp. 331-350

E-ISBN-13: 9780814762554
E-ISBN-10: 0814762557
Print-ISBN-13: 9780814740514
Print-ISBN-10: 0814740510

Page Count: 320
Publication Year: 2009