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281 Chapter 9 Miscarriage of Justice as Misnomer Markus D. Dubber 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 in the state’s “police power.” By contrast, if one regards the penal process from the perspective of law, it appears as a “criminal justice system” designed to do justice, meting out punishment to offenders for injuries inflicted on victims. Penality as a species of law is derived from the state’s power to manifest and protect the essential rights of its constituents. The notion of a miscarriage of justice (or its apparent synonyms, wrongful conviction and criminal justice error)3 makes sense only within the context of the latter view of the penal process. The Police Power Model of the penal process does not seek justice; it seeks efficiency, obedience , order.4 To the extent that the penal process is in operation—if not in ideology—a police institution, talk of miscarriages of justice is beside the point. What is more, to the extent that the Law Model of the penal process obscures the operation of the penal process as a police system, a focus on miscarriages of justice may perpetuate the alegality, and alegitimacy, of that process.5 The power to police has always been, and has been designed to be, free from principled constraint. The myth of criminal law as law has cloaked the process in a false pretense of seeking justice. Complaints about miscarriages of justice may contribute to this charade of penal legality. At the same time, however, appeals to justice may be seen as taking Ogletree-Sarat_pp279-330.indd 281 Ogletree-Sarat_pp279-330.indd 281 9/12/08 1:26:20 PM 9/12/08 1:26:20 PM 282 Markus D. Dubber the penal process at its word. Taking the claim to criminal justice at face value, pointing out miscarriages of justice may be seen as subjecting the penal process to the norms it pretends to accept as binding. As part of a general principled critique designed to transform the penal process into the criminal justice system it pretends to be, talk of miscarriages of justice may serve to legitimate penality rather than perpetuate its alegitimacy. Here it might be useful to consider the relationship between the rule and the exception in the penal process.6 As long as miscarriages of justice are regarded as exceptions to the rule of justice delivery, then their exposure does little to challenge the legitimatory complacency of the penal process.7 The problem with miscarriages of justice is not that they are miscarriages or even miscarriages of justice. They are not miscarriages at all because the system does not seek to do justice in the first place. At best, they are miscarriages of police: false positives in a system of risk incapacitation . The problem of mistaken identity thus is not a subsidiary problem within the realm of miscarriages of justice, in that false eyewitness identification may lead to wrongful conviction; misidentification is the problem itself, as labeling (as offensive, or dangerous) is the core task of the penal police process. Of course, one might strip the inquiry into miscarriages of justice of all normative content. False labeling might then be treated as an administrative problem, with the attendant concerns about the identification of reliable risk factors, the implementation of these factors in various institutional settings, quality control, reliability testing, and so on. The problem with getting the “wrong man,” however, is not simply that someone has been mistakenly identified as an offender. The problem is that his conviction and punishment is an injustice, or “wrongful.” Wrongful convictions are not simply wrong convictions; they constitute a wrong, qualitatively comparable with the wrong of crime (and, in fact, should give rise to criminal liability absent an applicable defense).8 Prescribed solutions for the problem of miscarriages of justice that generate lists of reliability-enhancing proposals in the bureaucratic mode thus are entirely consistent with the view of the penal process as a police system. As a result, they do nothing to challenge the alegality of that system and, in fact, may help perpetuate it. Taking a broader view of the relationship between rule and...

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