National Review / Digital
To Serve and Protect
The Collapse of American Criminal Justice, by William J. Stuntz (Belknap, 432 pp., $35)


In a New York Times obituary published a few days after his death earlier this year, William J. Stuntz’s onetime boss at Harvard Law School, Supreme Court Justice Elena Kagan, described the late professor’s philosophy as “Stuntzian.” She’s undoubtedly right: Hardly anybody — regardless of his political leanings — will be able to agree with every argument or statement in Stuntz’s The Collapse of American Criminal Justice. In all, however, it’s a fascinating, passionate, compassionate, often brilliant book. Flawless? No. But it’s a work that deserves to have a significant influence on American criminal-justice thinkers from across the political spectrum.

Let’s start with Stuntz the man: He was an evangelical Christian, described himself as a conservative, and criticized nearly every major Warren Court decision on criminal justice. On the other hand, he has written a book that spends a lot of time talking about how racist the criminal-justice system has become (he makes this case far better than the leftist Critical Legal Studies movement has) and offers harsh words for both conservative justice Antonin Scalia and the originalist brand of jurisprudence popular among legal scholars on the right.

As Stuntz sees it, America’s criminal-justice system has become a total wreck. While crime is at about the same level as in the mid-1950s and has fallen steeply for two decades, the overall picture is not a happy one. Among other things, incarceration rates are higher than those in any other established democratic nation in history, drug-related laws are enforced far more stringently against African Americans than against whites, a system of plea bargaining empowers prosecutors while pushing more democratic juries to the side, and innocent people get put away far too often.

Going on a deep, fascinating, and fact-filled tour of American judicial history, Stuntz describes how this sorry state of affairs emerged from a conflict between two major types of justice systems in the United States: a haphazard, cruel, racist one that predominated in the South both before and after the Civil War, and a generally effective, humane one that took hold in the industrializing North. While the same common-law courts held formal sway in both North and South, Stuntz writes, the similarities ended there.

The postbellum South’s justice system failed by any civilized standard: It condoned and even facilitated “police riots,” denied most African Americans even the most minimal protection of the laws, rarely offered any punishment for those who preyed on the black population, and gave more than tacit encouragement to lynching. Crime spiraled out of control and police possessed little legitimacy.

During a long “gilded age” that stretched from Appomattox to the Great Depression, however, the North’s justice system was, according to Stuntz, different and much better: It emphasized localized, individualized justice dispensed in a community-wide, essentially democratic way. Cases were heard by juries of the criminals’ neighbors whose “rage . . . was tempered by empathy,” punishment rarely exceeded the crime, police were numerous and community-oriented, and crime rates, even among unassimilated immigrant populations, remained relatively low even when Prohibition (a somewhat more moderate move than it’s made out to be in modern histories) created a huge, illegal alcohol market.

As Americans spread out across the frontier in the 1870s and afterwards, Stuntz argues, it looked as if the superior, northern model of justice might be winning. While the West first adopted a southern-style system of uncivilized, almost barbaric justice (think Wyatt Earp’s shootouts with commercial rivals), it eventually moved in the more humane and compassionate direction of the Northeast as towns settled and institutions developed.

All this ended up being undone. The post-gilded-age efforts to “professionalize” policing and criminal justice, combined with disgust stemming from the corruption of the urban machines that administered it and a series of Warren Court decisions (made with good intentions of fighting police racism), ended up reducing the repute of all criminal justice. Criminal sentences became shorter and shorter until they were the most lenient in the world. And crime spiraled out of control.

October 31, 2011    |     Volume LXIII, No. 20

  • Bobby Jindal is leading Louisiana’s revival.
  • Celebrating a remarkable Supreme Court tenure.
Books, Arts & Manners
  • Tracy Lee Simmons reviews James Madison, by Richard Brookhiser.
  • William Tucker reviews The Quest: Energy, Security, and the Remaking of the Modern World, by Daniel Yergin.
  • Michael Novak reviews The Most Controversial Decision: Truman, the Atomic Bombs, and the Defeat of Japan, by Wilson D. Miscamble, C.S.C.
  • Eli Lehrer reviews The Collapse of American Criminal Justice, by William J. Stuntz.
  • Ross Douthat reviews The Ides of March.
  • John Derbyshire laments the passing of ‘supererogate’ — and more.
The Long View  .  .  .  .  .  .  .  .  
Athwart  .  .  .  .  .  .  .  .  
Poetry  .  .  .  .  .  .  .  .  
Happy Warrior  .  .  .  .  .  .  .  .  
The Bent Pin  .  .  .  .  .  .  .  .