When a renowned scholar of criminal law and procedure says the criminal-justice system is in ruin, the indictment should stick.
The title of William J. Stuntz’s The Collapse of American Criminal Justice (Belknap/Harvard University Press) encapsules the claim he details in lucid and entertaining, yet unsettling, prose.
Stuntz’s litany of charges: Policing is inconsistent and racially imbalanced. Criminal defendants rarely face jury trials, because they have already accepted plea bargains from prosecutors, who decide whom to punish, and how (inordinately) harshly. Motions and sentencing hearings overwhelm courtrooms, in which black Americans are more harshly punished than nonblacks for comparable crimes. And yet residents of black and poor neighborhoods can rightly claim that crimes against them often go uninvestigated.
In sum, Stuntz contends, the American criminal-justice system not only cannot control crime; it cannot claim to sort innocent defendants from guilty. He writes: “Among the great untold stories of our time is this one: the last half of the twentieth century saw America’s criminal justice system unravel.”
As uncomfortable as Stuntz’s verdict is, colleagues were hailing his book even as he was writing it. They have called it the majestic capstone of a brilliant, idiosyncratic career. They did not await official publication to say so, because they knew that the Harvard University scholar was dying of cancer.
Stuntz did complete his book, just before he died, in March, at the age of 52. It is what colleagues said it would be: an extraordinary work of systematic analysis of a kind that he claimed American jurisprudence too infrequently attempts. And it frankly states the contentious charges he had been making with increasing force—and increasing converts—during his shortened career.
His analysis is complex, but one concept underpins much of what he believes is lacking in criminal justice today: For much of American history, outside the South, local criminal-justice institutions such as police and courts “punished sparingly, mostly avoided the worst forms of discrimination, controlled crime effectively, and for the most part, treated those whom the system targets fairly.”
Such claims rightly moved colleagues to demand historical evidence, and Stuntz provides it, in keeping with his renown for marshaling historical crime statistics and data. He traces criminal justice since the writing of the Constitution to explain how that earlier equilibrium was lost. Particularly during the past 60 years, he writes, racial discrimination in criminal proceedings has grown, and has transformed what Stuntz believes was an excessively lenient system during the 1960s into an approach to penalizing crime that is, to America’s shame, “the harshest in the history of democratic government.”
Stuntz studied history and English before attending the University of Virginia School of Law. He clerked for a Philadelphia federal judge and then for Justice Lewis F. Powell Jr. His teaching career began in 1986 back at Virginia, where he taught for 14 years before moving to Harvard. He wrote many influential law-review articles as well as essays and op-ed articles in publications like The New York Times, The New Republic, and The Weekly Standard. His stature was all the more striking because he was such a curiosity: an evangelical Christian and self-declared political conservative, far to the right of most Harvard legal scholars.
Colleagues across the political spectrum hailed his work for its evenhandedness, perceptiveness, and constructive civility. Those qualities were apparent even when he wrote on the most divisive issues and on such unorthodox topics as the roles of emotion, mercy, and faith in criminal law.
Just how seriously Stuntz’s views came to be taken was evident at a conference held in his honor last year at Harvard, attended by many leading criminal-justice scholars. Regardless of methodological or political leanings, attendees praised the honoree.
Cambridge University Press plans to publish, in February, an essay collection on the implications of his work: The Political Heart of Criminal Procedure: Essays on Themes of William J. Stuntz. In their introduction, its editors—Michael Klarman, David Skeel, and Carol Steiker—describe Stuntz as “strikingly nonideological and unpredictable,” at one moment sounding like a Reagan conservative, the next like a Great Society liberal. Underlying all that, they say, is his “powerful condemnation of the stark racial and class inequalities that mark the criminal justice system and of the political pathologies that produce these inequalities.”
That drive also explains Stuntz’s reconsideration, and reinvigoration, of criminal procedure, a field that badly needed an overhaul when he entered it, the book’s editors say. In Stuntz’s view, things went seriously wrong just when one major legal institution sought to set them right—the U.S. Supreme Court of the 1960s under Earl Warren. It revolutionized protections for criminal suspects through its rulings on illegal searches, adequate legal representation, and informing suspects of what became known as their Miranda rights. But by the 1970s, reform had stalled because of rising crime rates and President Richard Nixon’s overhaul of the court.
Worse, the Warren reforms backfired, Stuntz argues. America’s prison gulag, as he characterizes it, resulted when Americans decried perceived and real acquittals of guilty defendants. That prompted liberal and conservative legislators alike to broaden definitions of crimes and to bid up penalties, to demonstrate their toughness on offenders.
Arrests skyrocketed, courts became clogged with procedural hearings, and prosecutors induced plea bargains to make winning cases easy. With that, and legislatively devised mandatory sentences, judges and juries lost their rightful role of ruling on defendants’ actions and intents.
In his search for how that all came about, Stuntz looks to American history. His stated intent was to lay the groundwork for arguing that wrong steps—those of the Warren Court and others—could be reversed and repaired. He considers the history of American punishment in the context of, for example, cultural and political campaigns against alcohol, drugs, polygamy, and gambling, and their relation to such phenomena as slavery, prostitution, lynching, and gang fighting. History, he argues, reveals how the structures of institutions interact to produce sometimes unintended and negative outcomes.
Stuntz suggests that historical analysis provides clues to possible reforms because it reveals missteps and paths not taken. A key to such misdirection, for him, was the Warren Court’s emphasis on the Bill of Rights as a tool for correcting injustices in criminal proceedings. A far better approach, in Stuntz’s view, would have been to return to a post-Civil War emphasis on the Constitution’s 14th Amendment guarantee of equal treatment for all Americans.
The unlikelihood of his reforms’ being embraced did not escape Stuntz. But the contrarian was a conservative most forcefully when it came to asserting the constitutional guarantee of equal protection and punishment. He argues that if Warren had reasserted that promise, the law might have done the rest. Then the collapse of American criminal justice, Stuntz writes, “would be more than a policy failure. It would be a constitutional violation, one that governments at all levels would be obliged to remedy.”
