Justin's Reviews > The Collapse of American Criminal Justice

The Collapse of American Criminal Justice by William J. Stuntz
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Oct 01, 13

bookshelves: professional
Read from January 28 to April 14, 2013

This book made me more uncomfortable than any book I have read in at least the past three years. That is an enormous testament to its brilliance and importance. Stuntz claims that we have created a criminal justice system “both harsh and ineffective.” If you accept as a basic principle that the criminal justice system exists to minimize the harm caused to all Americans, both criminals and non-criminals, then this is a damning indictment indeed.

Criticism of the criminal justice system is the rule, not the exception, in the academy, but the late Stuntz was that rarest of creatures—the openly-evangelical Christian academic. He approaches the issue from a different perspective than usual. He also possessed an exceptional clarity of thinking and discipline of thought.

The Collapse of American Criminal Justice extensively maps the broad sweep of the history of criminal law and crime in America. Particular emphasis is given to regional trends and the differences therein, from the generally effective (and fair and just) system in New England to southern lynching to frontier justice in the west. His work here will be of great interest to any student of David Hackett Fischer’s Albion’s Seed. More relevant to modern criminal justice, I think, is his equal emphasis on the rise of procedure. “[T]he 1910 version of the Cyclopedia of Law and Practice devotes only fifteen pages to the issue of search and seizure, but in the 1932 version it runs 114 pages.” Stuntz doesn’t see this as a good thing, he accuses the Supreme Court of making “the constitutional law of criminal justice into something narrower and less useful: a constitutional law of criminal procedure.” The Warren Court doubtless acted with good intent, but “in criminal justice as elsewhere, unintended consequences often swamp the intended kind.”

Why is this so? I’ll explain, but first let me take a step back. To many a student of the law, including this reviewer (one with no affection for the Warren Court), our constitutional criminal procedure is a bedrock of the American Way, even liberal democracy itself. Stuntz argues though—forcefully—that the procedural protections were a product of chance. He traces them to a handful of high profile cases in the dusk of colonial America. Yes, so, weren’t most rights enshrined in the Bill of Rights and the original Constitution in response to narrow violations of rights under British rule? They were, but Stuntz points out that each case can be seen as a matter of protecting Free Speech—a rather novel and dangerous concept at the time—instead of a disparate collection of procedural rights for criminals. Does Stuntz offer no protection for the accused, then? No, but he points to substantive, not procedural, protections as optimal, referencing the protection of substantive rights in the Declaration of the Rights of Man and of the Citizen, suggesting that our procedurally oriented protections were a matter of chance (fat lot of good the former did many French during their own revolution).

Returning to my earlier point, the rise of procedure during the Warren Court (and, importantly, well before) is important because it did not exist in a vacuum. Contrary to popular wisdom, the accused had real protection before said rise. Stuntz points to Due Process and especially Equal Protection (the earlier forms of which have really lost favor). More important, I think, was the protection offered by a common law tradition firmly rooted in a requirement of the requisite mens rea, or “guilty mind.”

Things changed. Most of us are probably familiar (broadly speaking) with Prohibition, begun with the 18th Amendment and ended with the 21st. It’s widely held as one of our great failures. John Hart Ely mocked it as a misguided attempt at crudely touching substantive law with a constitutional system better suited for procedure (Ely and Stuntz would have disagreed on much). Stuntz sees it as a relic of history we should point to with pride. Not because banning alcohol is a good idea; it’s a terrible idea. But because Prohibition was honest. The People wanted to do something. That something, questionably, couldn’t be done constitutionally. They passed an amendment to the Constitution through the prescribed means. It didn’t work. They again amended the Constitution; again it was through the prescribed means. The People perhaps learned something about the inherent game of whack-a-mole that is vice prohibition. Would be prohibitionists learned another lesson. We saw many more prohibition movements: against opium, against prostitution, against drugs in general. None were pursued through the channels Prohibition was despite their similar questionable constitutionality. Quite the opposite. What was more, while Prohibition never outlawed the possession itself of alcohol, the new prohibitions frequently did so.

Modern procedural protections started to pop up around this time as well, culminating during the era of the Warren Court. The timing belies the notion that these protections are rooted in the Constitution. In context, they look even more like accidents of history. They end up serving the rich and recidivists rather than the most vulnerable. And who suffers the most when the inevitable backlash comes? The poor, the first-time offender, the innocent (as any good defense lawyer will tell you, the innocent defendant faces the distinct disadvantage that they don’t know what really happened). The Nixon revolution brings non-Originalist jurors bent toward law-and-order, but the law-and-order is long since a matter of faith by the time the next wave of Originalist arrives. Meanwhile, facing a crime wave, Democrats are no more interested in being “soft on crime” than Republicans are. Substantive protections continue to wither way: better to game the system than to lack a guilty mind.

And roughly there are depressing story rests. Crime has been in a decades-long freefall, but incarceration rates remain astronomical. The costs eat away at the public fisc, and locking away so much of a generation of black, male youth likely does more harm to black America than any number of public programs and anti-discrimination efforts could outweigh. There is, however, reason for hope. The taint of being soft on crime remains in theory, but crime has largely left the public consciousness, public ignorance of how much crime rates have dropped notwithstanding. Both Democrats and, probably better insulated politically, Republicans have a new freedom to act. It is with legislators that Stuntz pins his hopes. I think he’s overly optimistic; a mass shooting or one other high-profile incident can change so much. On the other hand, I think he’s far too pessimistic on reform through the judiciary. Judges on the Left have always had sympathies with the accused and are well insulated politically. The Originalist argument—and there is a strong one by Stuntz’s own narrative, although he doesn’t admit it—is a powerful one for judges on the Right, similarly politically insulated from the usual charges of RINOism.

There is so much more to say, but this review has already gone on far too long. Much worth reading and revolutionary has been omitted or only touched on in passing. I read this book quite some time ago, putting the review off for another time. Even all these months later, though, the heart (if not all the details, I fear a mistake lurks somewhere above) bursts forth with all available vehemence. It’s changed my thinking, and thoroughly so. What more could you ask of a book?

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