Book review: Getting Away With Murder
Getting Away With Murder by Susan Estrich is a 120 page book written in 1998 about the uneven application of sentences in the criminal justice system. It was written on the heels of several high profile cases where obviously guilty parties were acquitted and went free, such as OJ Simpson. Those cases caused many to question the justice system. This book was written as a commentary on those questions and an answer to some of them.
I felt like there was a lot going on in this book that I wasn’t getting. I suspect that if I had more background in the field, then I would have absorbed more. As it was, I was often struggling to figure out what was the rhetorical and what was the real - rhetorical statements are much more easily identified as such when you’re part of the context they’re set in.
That doesn’t mean I didn’t find it interesting. It was cheering to see it frankly admitted that the legal system is the product of human decision - essentially a huge popularity contest of what the rules of our little club known as society should be. What I hadn’t thought about was how the enforcement of these laws is equally subjective, or even more importantly as the author argues, how it should be subjective. Before reading this, I had been more of the opinion that sentences should be equal and discretion revoked. Now I’m more of the opinion that we should trust our judges and allow them to use their discretion. I do that even knowing it will result in magnifying the personal bias of the judges, but I agree with the author that we need a check of publicity on it. Shine some light on judicial decisions, require the judges to explain their sentences, and we’ll take a big bite out of bias.
This was not a book about the criminal justice field in general, or even prosecution. She didn’t address plea bargains or negotiation or say much about prison conditions or the problem of stuffing our prisons full of non-violent offenders. She touched on those topics here and there, but they weren’t the point. The point was how politics and public perceptions shape the criminal justice system. The byline of her book is ‘How politics is destroying the criminal justice system’ and that’s certainly catchy, but her book doesn’t talk about how politics is destroying it, per se. Politics made the justice system. Politics (which is built on the accumulated, layered, and weighted personal opinions of many people) decides what is criminal, what isn’t, and what sort of punishments should be handed out. The recent (at the time the book was written) media circuses changed the way the public sees the law, but not enormously. The change was that we were better informed, not that we thought the justice system was any less a rigged game.
I can’t tell where my own bias fits in this. I grew up knowing several people who had been arrested, assaulted by police, said that evidence was planted on them, had gone to jail, and/or had served sentences. Not very many, but I knew them. I knew early on, as a teen, that if I was in trouble, I should avoid the police. I shouldn’t talk to them. If I had an accident, I was to settle it if at all possible without them involved. If there was an injury, like a shooting while hunting or whatever else, it was better to tend to it ourselves than to get police involved. They were hired guns working for the state and their job was to extract money and/or incarcerate us - that was the prevailing point of view. I recall being shocked about 15 years ago when driving with a 3M coworker to find that he knew no one, and never had known anyone, that had gone to jail. He wasn’t sure he even knew anyone who had been arrested. I thought him hopelessly naïve.
Now I read about the concentration of offenders in certain population segments. I’m no longer in one of those population segments. No one I’ve interacted with for the last twenty years has been in trouble with the law aside from my ex and even his trouble was minor (getting in fist fights for which he was never charged). Now the guy I’m dating used to be an MP and was an armed security guard for several years. He has a very favorable view of the police. My view of them is shifting, especially as I talk with attorneys, read up on the law, and watch its application. I am coming to agree with people like the author. She sounds reasonable. I know that twenty years ago, she wouldn’t have. That, too, is interesting.