Getting Away With Murder: How Politics is Destroying the Criminal Justice System

Washington Monthly, May, 1998 by John DiIulio, John J.

by Susan Estrich Harvard University Press, $19.95

Susan Estrich, the Robert Kingsley Professor of Law and Political Science at the University of Southern California, is a prolific public intellectual and an increasingly familiar face on television talk shows. She first came to wide public attention as national campaign manager for Michael Dukakis. In 1989, at a forum at Johns Hopkins University, a young woman asked her, "What should Governor Dukakis have done about Willie Horton?" "Kept him in prison," she quipped. In chapter three of Getting Away with Murder, she answers the "Willie Horton question" once and for all:

What should we do with Willie

Horton? Lock him up. Should a

man who rapes while out on furlough

have been furloughed? Obviously

not. The system failed. It doesn't

matter what race he is ... It is not

the disproportionate impact of punishment

that makes the system racist

but the disproportionate impact of

our failures at prevention -- that is

what renders our politics suspect.

The only way to address racism in

the criminal justice system is to cut

the crime rate among blacks -- to

try to inoculate the children, even

as we punish many of their fathers

and brothers. It is not racist to lock

up Willie Horton. But planning

prisons for preschoolers is.

On matters ranging from the evidence on racial disparities in sentencing (black defendants who go on trial, she notes, are in fact convicted less often for crimes of violence than white defendants) to the need for "Honest Lawyers," Estrich is consistently candid, often convincing, and eminently reasonable without feigning academic condescension.

Still, Getting Away with Murder is bound to be controversial, especially among critical legal theorists, jury nullification fans, and Democratic liberal elites who still have trouble understanding that those who mumble "incarceration" will neither be heard nor heeded when they shout "prevention"

In the book's prologue, Estrich recounts how one "well born"' faculty colleague diagnosed her resistance to the idea that legal process should be taught as ad object lesson in relativism. It resulted, he said, from her "working class, roots." The treatment infuriated her; besides, she grew up "solidly middle class."

Indeed, Estrich studied hard in college, worked her ass off in law school, lost her father, graduated without a dime, earned a tenured professorship at Harvard, bravely published Real Rape (she herself was a rape victim), and has since proceeded on a remarkable and public-spirited career as an author, activist, and commentator. In this book, she engages her critics and, if anything, gives them better than they deserve.

The book's first chapter is a lucid summary of competing legal doctrines and moral claims pertaining to how our justice system sorts, charges, tries, sentences (or frees) persons accused of criminally stealing human life. When it comes to "comparing killers," she emphasizes, it is exceedingly difficult to treat like cases alike. But that is no excuse, she argues, for abandoning the "reasonable man" standard, admitting every celebrity-killer "abuse excuse" and "sympathy defense" circumstances, or (a la her discussion of Johnny Cochran!s tactics) subverting the fact-seeking trial process with emotional pleas to "Send them a message." Her reasonable woman standard is as powerful as it is simple: The system should do everything within the realm of constitutional and moral propriety to convict and punish the guilty and acquit the innocent.

Although Estrich does not make the calculation, there are today an estimated 500,000 persons who have committed some type of homicide living free in the community. In the early 1990s, most persons convicted of criminally taking life served fewer than a dozen years behind bars. There is little research that compares the records of killers on death row to the records of paroled murderers, but, whatever one!s position on the death penalty (Estrich used to be against it but now is for it; I used to be for it but now have multiple reservations), it would seem important to know whether any sizable fraction of released killers have records that make them virtually indistinguishable from any sizable fraction of killers who, de jure, retain a date with the executioner but, de facto, are serving sentences of life without parole. It would also seem important to note that, according to the best available studies, most paroled murderers go straight, and, as I have witnessed over the last few years via my work with inner-city churches, not a few have led exemplary lives of community service and literally saved young lives.

In a few places, Estrich cites statistics and other data from secondary sources that don't get it exactly right. (On page 92, she cites a projection -- "40,000 homicides in the early decades of the next century" -- attributed to me in a magazine article and since repeated by several journalists, but that I never, in fact, made) But given the depth, breadth, and wisdom of this book, and given how perceptive and right on the money she is with respect to complicated empirical research findings on such matters as the inefficacy of mandatory minimum drug laws, such minor shortcomings are entirely pardonable.