From Jim Crow to Timothy McVeigh: The Best 2012 Books About Justice

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Eight 2012 releases that entertain, teach, and make honorable contributions to our understanding of law and politics

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How much do my Atlantic colleagues like books? Well, first The Atlantic came out this week with its "Best Book I Read This Year" list. Then The Atlantic Wire came out later this week with "The Books We Loved in 2012" list. In the newsroom at the Watergate, meanwhile, instead of emailing or simply walking between cubicles, earnest Atlantic editors and writers throw books at one another to communicate, just like James Russell Lowell did 150 years ago. This accounts both for David Graham's hair and James Fallows' catlike reflexes.

So here's my humble contribution, the second December edition of: "A Year in Books: Telling Me Something I Didn't Know." Some I have cited before in my work this year. Some I have read and put on the shelf for future reference. All have had a powerful impact upon me -- have caused me to pause, even after reading them, to consider the revelations they contain. I suppose that sort of connection with the reader is all any reasonable author has a right to expect. In no particular order:

1) Full Body Burden, by Kristen Iversen. This is one I did write about, on September 10th, to remind folks that on September 11, 1957, 55 years ago, the United States narrowly averted a nuclear disaster at the Rocky Flats nuclear weapons facility near Denver. The New York Times called it a "simmering and sickening book," and what it did was put a new face, and a compelling new story, on an old scandal. When I interviewed Iversen, she told me:

The Price-Anderson Act largely indemnifies corporations from liability related to nuclear accidents or "incidents," yet the courts and the judicial system have not adequately addressed the concerns of nuclear workers or people living near nuclear sites. Who is to bear responsibility if and when something goes wrong? The accident at Fukushima demonstrated once again the "myth of absolute safety."

2) The Injustice System, by Clive Stafford Smith. This isn't a book about capital punishment, but it might as well be. It's the story of the 1996 flawed trial of Kris Maharaj, convicted of murder in Florida for many of the same reasons we see other men convicted in cases where there is plenty of reasonable doubt as to their guilt. Smith, the British lawyer and civil rights advocate, provides excellent context and perspective -- and searing detail -- about how far a criminal trial can be from a meaningful search for the truth of the matter asserted. From the book:

By the time I set up shop in Louisiana, I thought I had identified the prosecutorial design: the mind-set of those who take the job, the reinforcing nature of the prosecutorial club, and the way the system discourages any contact between prosecutors and the person on trial. These factors conspire to make it very unlikely that a prosecutor will accept the fact that he has sent an innocent person to prison. Few people are very good at admitting their mistakes; fewer still, when those mistakes are more serious. Meanwhile, the more entrenched one's position becomes, the less chance one has of beating an honest retreat.

3) Killing McVeigh, by Jody Lynee Madeira. I wrote about this, too, in July; about the "myth of closure" in the Oklahoma City bombing case. Madeira's book does a great service to the nation because it helps explain, using a tragedy and a trial we all remember, how differently victims of crime react to the legal process that takes hold in a high-profile case. In the end, what I learned from a book about the first trial I ever covered was that the closely-knit survivors and family members of the victims of April 19, 1995 were not always ennobled by that role. From the book:

Notably absent from these remarks [following McVeigh's execution in Terre Haute, Indiana on June 11, 2001] is reflection on what popular culture asserts should be the "lived experience" of closure -- the act of holding a suspect accountable that ostensibly motivates victims' familes to attend trials, give victim impact testimony, and witness executions. With the exception of a few interviewees who discussed McVeigh's execution as a moment of closure, not one defined closure explicitly as coping or hearing through testimony or execution witnessing.

4) Aftermath: Deportation Law and the New American Diaspora, by Daniel Kanstroom. Here's an underappreciated book about a terribly important part of the nation's justice system. The author calls smartly "for critical, thorough, humane analysis and reconceptuallization of a deportation system that has become shockingly large, unnecessarily harsh and, in many ways, dysfunctional." This was a huge legal story in 2012. And it's going to be a huge political story in 2016 as the power of the Hispanic vote becomes more and more pronounced. From the book, Kanstroom is clear about how unclear this area of the law really is:

As one well-known proponent of strict enforcement responded to those who supported mercy and compassion for undocumented noncitizens: "They broke the law. Period." But the law is not so simple, and its complexity suggests that a question mark rather than a period should follow the assertion that "they broke the law." Laws have certainly been broken. But what should we do about it?

5) The Making of Lee Boyd Malvo, by Carmeta Albarus and Jonathan H. Mack. I read and wrote about this book in early October, around the same time that Malvo gave a series of well-publicized media interviews on the 10th anniversary of the Beltway shootings. There are young people everywhere in the world who endured worse from their parents than Malvo did, but who did not become the killer he did. But if you want a sense of the damage a broken life can create for innocent victims decades later, read this book. From the book:

From all accounts, until he met John Muhammad, Malvo was a youth with tremendous potential. His academic pursuits since incarceration confirm the possibility of scholarly accomplishments. Like many who have worked with Malvo over the years, I am faced with the question of what made him capable of murder-- and, further, what it was about Malvo's relationship with John Muhammad that led him to commit that crime.

6) Convicting the Innocent: Where Criminal Prosecutions Go Wrong, by Brandon Garrett. This is a 2011 book, which I should have read last year and which I should have cited more this year in the stories I've written about the death penalty in America. If Smith's book about the Maharaj cases focuses upon a single case, Garrett's book zooms out the view to give the reader a sense of the scope of the problems in our justice systems. But he does so in a way which I find both earnest and charitable. From the book:

The trial records in these cases give us every reason to believe that most of the police, prosecutors, forensic analysts, defense lawyers, judges and jurors acted in good faith. Few likely realized that they were targeting the innocent. They may have suffered from the everyday phenomenon of cognitive bias, meaning that they unconsciously discounted evidence of innocence because it was inconsistent with their prior view of the case, or they were motivated to think of themselves as people who pursued only the guilty. That makes these cases all the more troubling.

7) The Politics of Voter Suppression, by Tova Andrea Wang. Talk about your first draft of history. This book came out in the middle of the most raucous voting rights battle since the 1960s, a pitched political and legal war initiated by officials who sought to make it harder for registered voters to cast a ballot. In a sense, the book was too late to impact the court challenges to the new voter suppression laws. In a sense, the book is too early to adequately assess in context the voting rights battles of 2012 or to predict the coming Supreme Court war over the Voting Rights Act. But it's a great place to start. From Wang's work:

Political abuses of election reform are a continuous-- if admittedly ignoble-- feature of American history. This long history of abuse should not, however, lead to political passivity and indifference; it also is possible to pursue reforms that can enhance democracy. Indeed, a key element of this book is the proposal of a number of legitimate and positive reforms that ought to be pursued as a major part of each party's agenda.


8) From Jim Crow to Civil Rights, by Michael J, Klarman. Speaking of voting rights, and voter suppression, and America's long, rich history of bigotry and prejudice under law, Klarman's old book (2004) is a timely must-read. In a perfect world, the justices of the United States Supreme Court would have the time and inclination to read the book before they consider Shelby County v. Holder, the Voting Rights Act case the justices will hear in 2013. I asked Klarman, the Harvard Law Professor, what he thinks of the Shelby County case in the context of his thorough and detailed historical review of voter suppression efforts. His response:

One cannot dismantle a totalitarian system like white supremacy overnight and then pretend that everyone starts on an equal footing and that a new system of constitutional rules should be immediately put in place that pretends that former regime never existed. Yet that's exactly what someone like John Roberts risks doing with blithe statements like "the way to stop discriminating based on race is to stop discriminating based on race." (or whatever that precise quote from Parents Involved was). One can wish away the past, but that doesn't make it any less real or diminish its continuing relevance to the present.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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