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August 17, 2010

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Larry Rosenthal

I suppose this is a good example of the "different perspectives" on the criminal justice system that one can find in the legal academy. Either the system is racist, or directed at convicting the innocent. What could be more useful information "for those embarking on a legal career"?

Jacqueline Lipton

Larry: One reason that I liked these books was that they were more balanced than you might assume looking at the titles and descriptions. Neither of them read to me as a particular diatribe on the evils of the criminal justice system and both seemed to try to insert various competing perspectives. I actually liked some of the descriptions in the Framing Innocence book on how difficult it is to identify "community standards" when applying laws that are obviously intended to protect children from harm. We look at constitutional challenges to Internet porn laws in my cyberlaw class every year and I found some of the discussions in the Framing Innocence book to be a good introduction to the general constitutional difficulties of drafting laws that serve the appropriate purpose of protecting children from harm while at the same time not being overbroad in practice. There is a lot of discussion in the book about how frustrated Cynthia Stewart's lawyers often became with her attitude and approach. It's not all about "convicting the innocent" and how terrible that is.

Butler's book too speaks to the importance of protecting the public from dangerous criminals and the need for effective prosecutions etc. He also surveys forthcoming enforcement technologies that may help with the overcrowding in our prisons. It's not just about racism, although obviously he is writing from an African-American perspective. He is also somewhat critical of the cultures he is writing about in places. It's not completely one-sided. At least it doesn't read that way to me.

I also wasn't meaning to suggest that these are the only things a new law student would need in order to understand the criminal justice system - merely suggesting that they are "anecdotal perspectives" that might fuel interesting discussions on some important issues within the system. I'm not a criminal lawyer myself and I found these books interesting from the perspective of one who doesn't think about criminal law and procedure on a daily basis. The books are well written and accessible to those without a legal background. They also raise issues that students and lawyers may well confront in real life. However, I wouldn't suggest they are the be all and end all of what we should know about the American justice system.

Additionally, if you have other suggestions for books that give other perspectives on the system, I'd love to hear about them and would welcome your thoughts. I haven't done all that much reading in this area in the U.S. context in the past (having obtained my crim law training overseas within the context of other legal systems that don't necessarily face the same issues as the U.S. particularly in terms of First Amendment issues). I'm currently trying to fill in some of the gaps in my own knowledge of the system so I would welcome your thoughts on the blog or via email.

Larry Rosenthal

I have read Professor Butler's book. I don't know how to respond to anyone who regards it as balanced. From reading the book, for example, one would never know that no law enforcement strategy has saved more minority lives than New York's stop-and-frisk policing, or that African-Americans oppose the legalization of drugs at higher rates than whites. For my own perspective on these issues, rather different than that of Professor Butler, see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1645436

Jacqueline Lipton

Thanks - that's very helpful. I'll read your paper with interest.

Orin Kerr

Larry's comment brings back my recollection of this post on trying to find death penalty scholarship not written by known opponents of the death penalty:

http://volokh.com/posts/1238442119.shtml

Jeff Bellin

It has been some time since I read it, but as I recall, Let’s Get Free devotes a chapter to a provocative argument that there is no place in the system for prosecutors, sensitive to the issues discussed, who seek to improve the system from the "inside." As a former prosecutor (and possibly particularly defensive on this point), I would encourage profs assigning this book to try to address the opposite proposition. The prosecutor seeking justice may arguably be a dying breed, but there is no reason I can see to hurry along its extinction.

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