Edited by Charles J. Ogletree, Jr. and Austin Sarat, New York University Press, New York, N.Y. 349 pages
What do we mean when we say that we have a “justice system?” Is “justice” really the goal? What do we expect of it? Do we really expect infallibility? Or do we tolerate a certain number of unjust results – false convictions, excessive punishments, and the like – as the price for such a massive justice system which investigates, prosecutes, tries and punishes or acquits hundreds of thousands, if not millions of crimes a year?
“When Law Fails: Making Sense of Miscarriages of Justice,” edited by Harvard Law Professor Charles Ogletree, Jr. and Amherst College Professor Austin Sarat, raises these questions through a collection of essays discussing the topic of miscarriages of justice from a variety of angles: historical, legal, sociological and others. Although the collection, taken together, fails to articulate any singular cohesive theory of “miscarriages of justice” and its relationship to our concept of “justice,” most of the essays are interesting, informative and thought-provoking. And only a couple of them are written in the impenetrable academic style worthy of ridicule.
The question of the standard to which we hold our various justice systems took on a special urgency for me while reading these essays. One of Incisive Media’s newspapers, The Legal Intelligencer in Philadelphia, has been covering a scandal involving, among other things, two judges in Luzerne County who have pleaded guilty to receiving $2.6 million in kickbacks from the owners of a private juvenile detention facility. The government alleges that the judges had received the payments in exchange for sending kids to the private prison, in many cases, when the infractions committed were extremely minor and the families had been persuaded not to retain counsel. These children, potentially in the hundreds, were obviously scarred by their time in detention, and some had college scholarships and other life-changing opportunities yanked as a result.
What was shocking to me was not just the ugliness of the corruption (sentencing kids to prison for money!), but how many people in the community must have been aware that these sentences were inappropriate. They were miscarriages in some real sense, and yet there was not a breakdown of the justice system in the county. Apparently, people carried on – lawyers, court administrators, prosecutors, bailiffs and parole officials all continued to carry out their duties as if nothing were wrong. It seems as though these miscarriages, far from being unacceptable, are a tolerable part of our justice system.
It reminded me of something a law school professor once told me (and which I’ve never been able to prove true or false): that citizens are more outraged when guilty people go free, than when innocent people are convicted.
These are the questions raised, in various ways and from various vantage points, in “When Law Fails.” The first essay, “The Case of ‘Death for a Dollar Ninety-Five,’” tells the story of a black man, Jimmy Wilson, accused of entering an elderly white woman’s home and stealing $1.95 in 1957 in Alabama. He pleaded innocent, was tried and found guilty, and sentenced to death. The case became an international cause célèbre because it was widely recognized that the sentence was not due to the severity of the crime, but because of the race of the victim and defendant, and the rank unfairness of an all-white jury in Jim Crow Alabama.
There was an enormous outpouring of condemnation from around the world. U.S. Embassies asked for assistance from the State Department in handling criticisms. The embassy in London reported receiving 600 letters a day, some of them containing $1.95, and the Soviet Union used the case as a propaganda tool to point out the hypocrisy and racism of America.
Recognizing that the case was having a strongly negative impact on America’s international image as a beacon of freedom (especially important during the Cold War), the White House, State Department and other agencies put pressure on Alabama Governor James Folsom to grant clemency.
Ultimately, after Wilson’s appeals were exhausted, Folsom granted clemency and commuted Wilson’s sentence from death to life imprisonment. Almost overnight, his case disappeared from view.
The author, Mary Dudziak, argues that this is evidence that Americans (and others) did not really care about justice, but only the public appearance of justice. Life imprisonment was still an unjust, excessive sentence for the crime Jimmy Wilson was found guilty of, but since his clemency supported an image of America as a just nation, it became the dominant story. Similarly, while the U.S. Supreme Court case of the Scottsboro Boys, falsely accused of raping two white women, is hailed for finding the right of accused to adequate counsel in capital cases, little attention is paid to the ultimate fate of the defendants, who spent as many as 20 years in prison.
Mr. Ogletree, in his chapter “When Law Fails: History, Genius and the Unhealed Wounds After Tulsa’s Race Riots,” tells the story of the 1921 Tulsa riot in which a white mob burned and destroyed a black section of town that was home to a substantial black middle class of doctors, lawyers and teachers.
Efforts by the victims and their heirs to seek damages from the government (the riot was supported by the police) were repeatedly denied. The denials, however, rested on procedural, not substantive grounds, leading Mr. Ogletree to argue that the “limits on what claims may be raised, the time at which they may be raised, and the scope of the issues that may be raised leave many persuasive and powerful matters outside the walls of the courthouse.” Mr. Ogletree argues that this is evidence that the system is not justice-driven, and that other interests, such as procedural efficiency, can trump justice.
Yet another essay, “Kevin and Zeisel in the Twenty-First Century,” by Daniel Givelber, presents a statistical analysis of differing rates of conviction for criminal defendants. Interestingly, the article notes that conviction rates are lower for those defendants who put on witnesses versus defendants who don’t put on any witnesses. Mr. Givelber notes that, since privately retained lawyers (as opposed to public defenders), are more likely to put on defense witnesses, because of the expense of doing so, defendants with privately retained lawyers have a lower conviction rate. Although the conclusion is hardly breaking news (a defendant’s resources affect the extent to which he or she can put on a viable defense), the statistical analysis presented is compelling.
The other essays here make similar points, from different vantages: the real scope of “reversible error” in criminal cases; the extent of “extreme punishment” that falls short of the death penalty, how the rise in “professional policing” ends up targeting certain kinds of easily identified crimes and criminals, and others. And although some of the essays are somewhat dense, almost all of them contain an interesting or provocative thesis worthy of consideration.
Fabio Bertoni is deputy general counsel at Incisive Media, the parent company of the New York Law Journal.