When Law Fails: Making Sense of Miscarriages of Justice

When Law Fails: Making Sense of Miscarriages of Justice

When Law Fails: Making Sense of Miscarriages of Justice

When Law Fails: Making Sense of Miscarriages of Justice


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.


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 evolved into a Court tv movie that Entertainment Weekly called “Searing Drama.” the entertainment world has provided the groundwork for academics and theorists who have long labored to advance the view of miscarriages of justice not as aberrations but as deeply revealing, central features of our legal system. the natural, narrative arcs, the theme of “a second chance” may make for searing drama, but the broader significance of miscarriages of justice demands a close and careful examination that does not lend itself to happy and easy resolutions.

In America and elsewhere, law fails often and becomes a tool of injustice. Political theorist Judith Shklar argues that, in the study of law, “injustice should not be treated intellectually as a hasty preliminary to the analysis of justice.” According to Shklar, “the real realm of injustice is not in an amoral and prelegal state of nature. It does not appear only on those rare occasions when a political order wholly collapses. It does not stand outside the gate of even the best known states. Most injustices occur continuously within the framework of an established polity with an operative system of law, in normal times.” Indeed, this book, When Law Fails, examines the nature of injustices in such terms—not as errors but as organic outcomes of a misshaped larger system.

The most dramatic and best-known examples of miscarriages concern conviction and sentencing of innocent people in capital cases. Exonerations from death row have become increasingly common: since 1973, more . . .

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