Charles Ogletree and Austin Sarat (eds),When Law Fails: Making Sense of Miscarriages of Justice

Charles Ogletree and Austin Sarat (eds), When Law Fails: Making Sense of Miscarriages of Justice, New York University Press, 2009; 349 pp. (includes index): 129780814740514

My summer reading included a variety of books about miscarriages of justice, in preparation for teaching classes on this subject in the fall. I began with When Law Fails: Making Sense of Miscarriages of Justice (edited by Charles Ogletree and Austin Sarat) and several other volumes about failed justice, most notably Eye of the Hurricane: My Journey from Darkness to Freedom (2011). ¹ When I first picked up When Law Fails, an edited collection written by highly esteemed American legal scholars, I admittedly anticipated an intensely dry academic treatise. Given the marked differences between American and Canadian jurisprudence in terms of the study of wrongful convictions (most notably the maintenance of the death penalty) I feared getting lost in American-centered legal arguments and case law. However, the sequencing of my reading was fortuitous, because the juxtaposition between When Law Fails and the first-hand account of the Rubin Carter tragedy revealed remarkable similarities. Specifically, they both chronicled failed justice through every stage of the legal system – from police to prison officials, lawyers, judges, government agents, and the media. Although the volumes came from radically different positions, they shared a common denominator – a critically impassioned search for the very foundations on which Truth is based.

When Law Fails largely focuses on the now well-established legal causes of wrongful convictions including, for example, misguided police investigations, junk evidence, failure of the law to concede and remedy error, and racial bias. However, it is not strictly an academic exercise in uncovering these legal faults. Wider-reaching lines of inquiry include an attempt to identify whether miscarriages of justice are systemic or symptomatic, an exploration of theoretical frames to help clarify the problem; and a particular focus on the person(s) at the center of the wrongful conviction.

When Law Fails is a dynamic compendium of 10 distinct essays, which take the reader through and beyond the legal realm of miscarriages of justice to a broader examination of cross-national socio-political structures. In so doing, it compels the reader to look closely at the human devastation and systemic damage that result when these extra-legal considerations are left unattended. The book focuses in equal parts on the strict failures of law and on the systemic underpinnings that treat injustices ‘not as errors but as organic outcomes of a misshaped larger system’ (p. 1). As the editors note in their introductory chapter,

Viewed through a sociological lens, the book’s analysis of these issues is undoubtedly its major contribution. Throughout their precise legal analyses and focuses on legal shortcomings, the authors are acutely aware of, and engaged in, bringing to light the person(s) at the center of failed justice. For example, in Part I, ‘On the meaning and significance of miscarriages of justice’ racial injustices are highlighted through personal narrative in the 1957 case of Jimmy Wilson, an African American man in highly segregated Alabama who was sentenced to death for robbing a white woman. The case elicited global protest, pressuring the United States to commute Wilson’s life sentence. The author argues that what actually happened to Wilson became less important than how his case was historically recast as American progress, with the ‘law’s power to resolve issues acting as glue to restore the image of America’ (p. 7). Similarly, Ogletree analyzed the Tulsa Race Riots by applying his own personal involvement in seeking compensation for the victims, and concluded ‘that courts of law are not always the most appropriate or ideal places to resolve disputes’ (p. 10).

The chapters in Part II, ‘Miscarriages of justice and legal processes’, focus on the various actors in the legal system and make important contributions to revealing systemic problems. Jonathan Simon, for example, argues that police investigations are at the forefront of wrongful convictions. According to Simon, with the advent of the war on drugs, American law enforcement ‘is engaged in a wholesale war against a criminal underclass (framed by race, age and gender) rather than retail struggle against wrongdoers’ (p. 12). He argues that a return to an individualistic approach to investigation would be preferable to the current pre-made list of suspects. Daniel Givelber examines the fallibility of the jury system since the due process revolution of the late 20th century, noting that ‘while the law has broadened the constitutional rights of defendants, juries get less information about the crime and the accused’ (p. 14). Douglas Berman argues that a latent byproduct of concerted legal attention to the ‘innocence problem’ has been a desensitization to mass incarceration, extreme punishments, and tough-on-crime policies. He calls for a rethinking of ‘failed justice’ to include the ways the guilty are being increasingly punished.

Part III of the volume, ‘Reconceptualizing miscarriages of justice’, urges the reader to a theoretical reconsideration of miscarriages of justice. While most scholars use a legal model to analyze the penal process, Markus Dubber argues that the process should be viewed as an administrative institution, with police at the center. In this section’s final chapter, Patricia Ewick explores how smaller injustices, viewed on a global scale, are often left unaddressed. She notes, ‘As governmental power becomes globalized, individuals seek empowerment by privatizing their lives, which, in turn, keeps them from being able to enact large-scale social changes to address structural injustice' (p. 20).

Overall, When Law Fails successfully probes interpretive and historical understandings of the legal, political, and cultural significance of miscarriages of justice. It is a compelling call for all of us (regardless of our profession, geography, or socio-political position) to seek Truth and Justice. In this way, it reinforces Rubin Carter’s message after four-and-a-half decades of entanglement in the legal system: we must awake from our collective slumber and tribal mentalities and simply do what is right and just.