by Charles J. Ogletree, Jr. and Austin Sarat (eds). New York: New York University Press, 2009. 320pp. Cloth. $70.00.ISBN: 9780814740514. Paper. $22.00. ISBN: 9780814740521.

Reviewed by Priscilla H. M. Zotti, Department of Political Science, The United States Naval Academy. Email: zotti [at] usna.edu.


WHEN LAW FAILS, a collection of ten essays, exposes the reader to the problems and consequences of legal mistakes. Exonerations of those wrongfully accused are well known and publicized, and much has been written recently about wrongful convictions in the criminal justice system. The thesis of this collection is that these miscarriages of justice are more than just aberrations of the criminal justice system but are symptoms of a flawed system of justice. In other words, the delivery of justice is hamstrung by systemic flaws which are embedded. Wrongful convictions are not outliers but are outcomes of a deeper more complex problem. The writers illustrate the intrinsic systemic errors and call on scholars and lawmakers to consider a more complex and comprehensive solution.

In essence, law fails often enough to become a tool of injustice. Errors accumulate around the issues of quality of counsel, race and prejudice, and DNA and evidentiary problems such as informant testimony. These errors are more than mistakes. They are embedded flaws, organic in our system of justice. The essays here illustrate that the problem is not isolated to a time period or region of the country.

Part One “On the Meaning and Significance of Miscarriages of Justice” details the role justice plays in our national development and identity. Mary Dudziak in her essay, “The Case of “Death for a Dollar Ninety-Five”: Miscarriages of Justice and Constructions of American Identity,” recounts the case of African American handyman Jimmy Wilson who was convicted of robbing an elderly white woman in segregated Alabama in 1957. Dudziak’s thesis is that Wilson’s sentence of death was eventually set aside not for the reason of innocence and fairness but due to the political pressure created by a poor international image of the American system of justice.

In the era of BROWN v. BOARD OF EDUCATION and Little Rock, the State Department saw civil rights and segregation as damaging to US global prestige. The US embassy in London received over 1,000 protests about the Wilson case. Governor Folsom of Alabama “received an average of 1000 letters a day from all over the world, some of them containing one dollar 95 cents” (p.36). However, just as quickly as the case became an international embarrassment for the United States, it faded away as Wilson’s sentence was commuted. Cruelly forgotten, Wilson served a life sentence until he was paroled out in 1973 at the age of 70. He [*582] served 16 years in prison for stealing pocket change.

Charles Ogletree’s essay, “When Law Fails: History, Genius and the Unhealed Wounds after Tulsa’s Race Riot,” recounts the 1921 riots that ignited over a 19 year old African American shoe shiner who took an elevator to the colored only bathroom. Here he encountered an elevator operator, Sarah Page, a white teenager. Without any evidence that a crime was committed, Dick Rowland was arrested for sexual assault. The charges were dismissed, but angry crowds squared off and quickly fights ensued. The riots destroyed in excess of 1.5 million dollars worth of property, 17 million in today’s dollars. Deep seated feelings of distrust continued for decades, many white citizens arguing that the riots were started by blacks, justifying the property loss. Calls for restitution were met with reluctance on the part of the city. Even by 1999 when the Tulsa Race Riot Commission was created and then recommended a resolution for the miscarriage of justice, the Governor concluded that neither the state nor city would provide victim compensation. Ogletree and a team of lawyers took up the claim, even filing petitions in the US Supreme Court and the Organization of American States. Still no appropriate remedy has been realized. In this instance, law was a conduit of injustice. It failed Dick Rowland and the survivors of the riot.

“If the legal system acknowledges legal mistakes, how does it understand their significance in regard to the more heavily fraught notion of injustice?” (p.70). Thus begins the thoughtful essay by Robert Weisberg entitled “Margin of Error.” Weisberg explores the technical world of error and the problem of determining which are harmless and which are harmful to a defendant being tried. Through a series of hypotheticals of viewing error from both the defendants’ and the legal systems’ viewpoints, the thorny problem of categorizing errors and accessing and rectifying their effect is explored.

Jonathan Simon’s “Recovering the Craft of Policing: Wrongful Convictions, the War on Crime, and the Problem of Security” addresses the question of whether contemporary police practices lead to error. Simon acknowledges the increased professionalism, training, and expertise of police. However, the persistent war on drugs and now the war on terror compromise some of the previous gains made by emphasizing police training and recruitment. Simon’s essay left me unconvinced but made me reevaluate police reform in light of current stresses and demand.

Daniel Givelber considers the role of the American jury in “Kalven and Zeisel in the Twenty-First Century: Is the Jury Still the Defendant’s Friend?” Taking a fresh look at data on acquittal rates, judge-jury agreement, and evidentiary presentation, Givelber finds that, despite the due process revolution of the 1960s, defendants are provided less vigorous legal representation. Furthermore, privately retained lawyers present more evidence at trial than court appointed or public defender counselors and have higher acquittal rates. The essay is interesting and data rich in its discussion of the problem, leading the reader to consider the implications of such findings. Have the constitutional gains of the 1960s created a system which in [*583] the end provides a lower quality of defense at the criminal bar?

Douglas A. Berman’s essay presents the argument that extreme punishment is another form of miscarriage of justice. In “Extreme Punishment” he explores the social and political factors that contribute to the American support of harsh and severe punishment. We incarcerate more individuals per capita than any country on earth, and due to the change in sentencing laws, more are certain to die in prison than a generation ago. Berman discusses the death penalty and the focus on innocence and uniformity in sentencing as two political issues which have diverted the discussion from the inherent punishment itself.

Linda Ross Meyer, in her essay, “Miscarriages of Mercy?” considers the punishment of those guilty under the Uniform Code of Military Justice. Her thought provoking essay asks the reader to consider leniency and its role in military justice. Her view is that “Mercy is a miscarriage of justice anytime it cannot be recharacterized as justice – that is, understood as a form of “case-to-case equity” or maybe a global distributive justice of pain” (p.188). She notes that “military character” and the culture of chain of command alter our traditional understanding of responsibility and just deserts. Leniency and discretion take on a different context due to the nature of military life and service. At the heart of her argument is the rule of law and both its purpose and practice.

Austin Sarat considers the parameters of justice/injustice in terms of clemency in capital cases. Is executive clemency the fail safe of our judicial system, the righting of the ultimate wrong of conviction and punishment? Relief after the justice system has run its course is categorized less as an appeal to mercy than of a technical and legal nature: ineffective assistance of counsel, mitigating circumstances, insistence of innocence, and family, religion and contrition. Despite the lack of success, clemency petitions are regularly filed and tell the story of defendants who find the law dysfunctional in process. Sarat calls these “memorializations” an archive of stories of legal failings. The essay, “Memorializing Miscarriages of Justice: Clemency Petitions in the Killing State,” is a sober essay of a legal system that makes mistakes.

Markus Dubber, in his chapter, “Miscarriage of Justice as a Misnomer,” argues that we can analyze the penal process from two perspectives which he labels police and law. The penal process from the vantage of the police is one of identification and elimination, and reducing the risk to the state. The law perspective focuses on doing justice, meting out punishment to offenders for injuries inflicted on victims. While in actuality a police institution, Dubber argues that most scholars focus on the law model. He argues that there is no miscarriage of justice, since the symptom does not seek to do justice in the first place but instead are miscarriages of the police. The discussion should be one of “miscarriages of police” and whether these constitute injustices or mere administrative errors. I found Dubber’s piece to be one of the more difficult to follow, leaving me to question his initial premise and dichotomy of the penal process. [*584]

The book ends with an essay by Patricia Ewick. She thoughtfully argues that miscarriages of justice take on more forms than the spectacular dramatic and tragic results that we envision. The system should focus on smaller injustices which are more mundane, cumulative and even indirect. In “The Scales of Injustice,” it is not just the breakdown of justice but the lack of it that Ewick suggests scholars and reformers consider.

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 authors bring the reader to ask, does the system of dispensing justice need to be revamped and if so, how? Do we need to re-theorize miscarriages of justice and consider not only when law fails but how and why? The scope of the problem both in terms of its breadth and depth, are revealed, requiring oversight and diligence. What all Americans should realize is that the system is a continual work in progress. The pursuit of true justice is a constant one.

© Copyright 2009 by the author, Priscilla H. M. Zotti.