New Book: The Fear of Too Much Justice

James Kwak
3 min readMay 9, 2023

I’m very proud to announce that I have a new book coming out: The Fear of Too Much Justice: Race, Poverty, and the Persistence of Inequality in the Criminal Courts, available from the New Press on June 20. Since my old co-author Simon has abandoned me for Jonathan Gruber and Daron Acemoglu, I wrote this one with Stephen Bright.

It is the honor of a lifetime to work with Steve, who is probably the most respected death penalty lawyer in the country. (Those who read Just Mercy closely will recall that it was Steve’s couch that Bryan Stevenson slept on when he started his first job at what is now the Southern Center for Human Rights. Bryan tells a little more about that period of his life in his foreword to our book.) Steve has not only won all four of his death penalty cases before the Supreme Court, he was director of the Southern Center for more than 25 years and—through years of activism and lawsuits—was the driving force behind the creation of Georgia’s public defender system. Perhaps most importantly, he has inspired hundreds of law students to take up careers in public defense and civil rights. Steve was one of my professors at Yale Law School, where I took his famous course on capital punishment and also worked in the death penalty clinic during my third year—in part on the case that ended the death penalty in Connecticut.

Stephen Bright

The book is a catalog of the systemic reasons why our country has failed to fulfill the promise of equal justice that the Supreme Court, among other institutions, routinely proclaims: the overwhelming power of prosecutors, who dictate the outcomes of most cases; the betrayal of the right to counsel by governments on all levels; the toxic influence of judicial elections and the politicization of the judiciary; the invasion of the criminal legal system by for-profit companies (which I wrote about recently); and on and on. These are problems that Steve and the Southern Center (of which I am a board member) have been fighting for decades. But despite their many victories—for example, the number of executions is only a fraction of what it was just twenty years ago—the scale of injustice only seems to grow as the years pass.

In the 1987 case McCleskey v. Kemp, the Supreme Court upheld a Black man’s death sentence despite overwhelming statistical evidence that the imposition of the Georgia death penalty was disproportionately based on race. The majority opinion argued that recognizing McCleskey’s claim would open the door to similar claims challenging other sentences or brought on behalf of other groups of people. In his dissent, Justice William Brennan called out this reasoning as “a fear of too much justice.” We used this phrase as the title of the book because it is one of the reasons why the criminal legal system fails to live up to its own ideals. There are other reasons, such as racism and greed, of course. But courts and legislatures are experts at coming up with reasons not to do things that justice obviously demands, such as ensuring that poor people have capable lawyers, preventing prosecutors from using their peremptory strikes to construct all-white juries, or allowing hearings where defendants can present evidence of their innocence.

If you’re interested, you can pre-order the book from bookshop.org (or from a giant online retailer). We will update the book website with media coverage and with information about in-person book events. Finally, if you read the book and are by chance moved to support the cause of justice in the criminal legal system, please consider making a donation to the Southern Center for Human Rights.

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James Kwak

Books: The Fear of Too Much Justice, Take Back Our Party, Economism, White House Burning, 13 Bankers. Former professor. Co-founder, Guidewire Software. Cellist.