Monthly Archives: April 2012

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Toward Real Criminal Justice

William Stuntz, The Collapse of American Criminal Justice (Harvard University Press, 2011).

William Stuntz, who died last year, was the preeminent criminal procedure scholar of his generation.  His early work on criminal procedure doctrine was breathtakingly insightful, providing deep explanations of the Court’s decisions and new ways of thinking about the law of search and seizure, interrogation, plea bargaining and sentencing.  His recent book, The Collapse of American Criminal Justice, weaves together his earlier doctrinal perspectives with brilliant analysis of criminological data, legal and cultural history, and the sociology of criminal justice, all in an effort to explain why our criminal justice system suffers from unnecessary mass incarceration, horrendously long sentences, racially imbalanced charging and sentencing, and a host of other flaws.

Stuntz attributes the current state of affairs to a number of factors, not all of which are obvious.  He is particularly bothered by the loss of local influence over crime policies.  He argues that until the mid-twentieth century police, prosecutors, juries and judges were very responsive to the community and that, outside the South, this attention to local morés resulted in a relatively lenient, non-discriminatory punishment regime.  Today, in contrast, police and prosecutors are more distant from their polity, most cases do not go to trial (making them invisible to the public), and when cases do go to trial juries and judges have much less flexibility in imposing punishment, all of which contributes to more punitive outcomes.

Criminal codes and dispositions are also tougher, he contends, because the increasing suburbanization of America has given power to a group that is rarely affected by the criminal law.  Federal criminal law has become particularly harsh because Congress doesn’t have to pay the full price for those who are incarcerated; rather, the threat of federal prosecutions for drug or weapons violations provides state prosecutors with leverage to obtain pleas on state charges.  At the same time, local prosecutors do not internalize the cost of their aggressiveness because states, not localities, pay for prison beds, while community-policing, arguably the most effective method of law enforcement, withers because cash-strapped localities, not states, have to pay for policing.

In Stuntz’ eyes, the current war on drugs is a disaster. He compares our current efforts against the drug trade to Prohibition, which is often held up as another disastrous national policy but which Stuntz calls the “good culture war.”  In contrast to the Volstead Act, which did not criminalize private consumption but only the manufacture, sale and transport of alcohol, imposed relatively minimal penalties for the latter, and both began and ended with a full-throated national debate, Stuntz notes that the drug war has been fought through largely invisible statutes that criminalize possession, minimize mens rea requirements, and allow prosecutors to obtain long sentences.

Stuntz is particularly tough on the Supreme Court.  He lambasts Court decisions during the early twentieth century that aggrandized federal criminal regulatory power vis-à-vis the states.  He is even more forceful in criticizing the Warren Court’s procedural revolution, which he believes has diverted the criminal justice system, and especially defense attorneys, from the enterprise of litigating guilt; instead the system seems obsessed with sanctioning police conduct and avoiding expensive, time–consuming jury trials.  Nor does Stuntz have much praise for the post-Warren Court’s sentencing and confrontation decisions, since they too result in limited flexibility in punishment and made trial less attractive.  Furthermore, Stuntz argues, the procedural protections now in place motivate legislatures to create easy-to-prove drug and weapons offenses, which police and prosecutors pursue in the locations where they are most easily observed: lower-class, often minority neighborhoods.  He posits that the resulting inequity actually contributes to crime in communities where individuals  have lost respect for the system.

Stuntz concedes that the procedural focus of the modern Court is in part the fault of the nineteenth century Court, which stymied regulation of substantive justice by eviscerating the Fourteenth Amendment’s privileges and immunities and equal protection clauses soon after they were ratified.  But he also blames the modern Court for not doing more with the third, due process clause in the Fourteenth Amendment.  He suggests that the Court could have developed a robust due process jurisprudence authorizing courts to strike down crimes that lack solid actus reus and mens rea requirements and permit easy intrusion into private enclaves.

Stuntz’ last chapter suggests reforms that respond to many of these diagnoses.  He wants a re-localization of crime definition, prosecution, and sentencing.  He argues for a re-invigoration of equal protection jurisprudence.  And he hopes for retrenchment on accuracy-reducing procedural protections such as the exclusionary remedy.

A short description like this cannot do justice to the innovative and provocative nature of The Collapse of American Criminal Justice.  I have published a much longer review of the book in volume 31, Issue 1 of Criminal Justice Ethics, which can also be found at SSRN.  But everyone interested in criminal law and procedure ought to read the book.  It will likely change most of your preconceptions about the criminal justice system.

Cite as: Christopher Slobogin, Toward Real Criminal Justice, JOTWELL (April 27, 2012) (reviewing William Stuntz, The Collapse of American Criminal Justice (Harvard University Press, 2011)),

The Other Carceral State









