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Frank-LooseEndsAndContinuingDiscussion 3 - 04 Feb 2009 - Main.HelenMayer
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II. What We Would Like to Understand Better | | | b. Considering Frank’s exposure of our limitations in fact-finding, do we continue with the present ruse or reveal the truth of what we’re doing? | |
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> | * In class yesterday, we discussed the natural human tendency to ignore information that troubles us, especially regarding certainty, or the lack of it, in our criminal justice system. We have to believe that the system works, that witness testimony and evidence reveals the objective facts of the case. Otherwise we might have to admit that we don't know with any degree of certainty whether the people sitting in our prisons are there for good cause. And so we develop the fictions of the science of law, the impartial and disinterested jury, the infallible medical experts to soothe any anxieties we might otherwise have. Point well taken.
The next question is what to do about this flaw? Strangely enough, this discussion got me thinking about Rod Blagojevich again, and more importantly, Blagojevich's predessesor, former Illinois Governor George Ryan. George Ryan is ironically one of the 2.3 million Americans currently sitting in our jails and prisons aross the country. Just before leaving office, Ryan commuted the sentences of every one of the state's death row inmates to life in prison - about 160 individuals. The governor had become convinced that the system under which they had been convicted was too corrupt, too arbitrarily applied, too prone to racial bias to hold up under scrutiny. A few years earlier, the governor had issued a moratorium on the state's use of the death penalty for just these reasons.
But my memory of the situation isn't that Governor Ryan rode to office with a popular mandate to get rid of the death penalty in the state. I don't remember lofty speeches about justice and injustice, rich and poor, black and white during the campaign. My memory is that much to the chagrin of many of the state's conservatives, the Governor was influenced deeply by the work of a few professors and students at the Northwestern University Law School's Center on Wrongful Convictions. This small group studied the individual cases the state's death row inmates, and had the irksome habit of pointing out that many of them were innocent. In fact the Governor announced his decision to commute the inmates sentences from the Northwestern Law School in 2003.
I think the first step to using Frank's idea of legal magic is to accept it ourselves. My Property professor pointed out today that one of the side effects of law school is that students leave with a mindset that is too geared toward legal solutions, when cultural or social solutions might be more effective. Maybe if more people knew how unreliable eye witness testimony is, or how crummy the science of experts who compare the metal in crime-scene bullets to the box in the defendant's home is, they might respond the way Governor Ryan did. In other words, I think the example of Governor Ryan demonstrates that people will accept the existence of legal magic in they are forced to - but only if the raw injustice is thrown into the faces of the right people.
-- HelenMayer? - 04 Feb 2009 | | | c. Couldn’t some of our instinctive trust in fact-finders have to do with our need for repose, and an aversion to endless litigation of factual issues that can be examined in multiple ways? |
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