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To Serve and Protect

by Eli Lehrer

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.

In response to this situation, a combination of (mostly) right-of-center politicians and the left-of-center Warren Court created a system that is, Stuntz says, both harsh and ineffective. First, looking for a cheap way to appear tough on out-of-control crime rates, state and local officials created enormous numbers of new crimes that replaced broad common-law definitions of wrongdoing with narrow, specific, and easy-to-prove offenses. Their successors, seeing that crime remained an enormous concern (new laws don’t stop criminals), then built more prisons to lock up new criminals. Meanwhile, a well-intentioned but poorly thought-out emphasis on procedure over effective outcomes (for victims and offenders alike) gave an upper hand to career criminals, and to those who could afford better lawyers, while doing little to improve the system for the simply wayward. Because the new offenses were so easy to prove (either an offender has drugs or drug paraphernalia or he does not), they resulted in a huge increase in plea bargains that left discretion and compassion out of the system. Originalist jurisprudence, by focusing on the plain language of laws, made things even worse by reducing judge and jury discretion. This system was cruel and — because the new offenses, many of them drug-related, ended up being enforced disproportionately in black inner-city areas — had racially disproportionate consequences.

Thus, Stuntz says, we are left with the current mess. Getting out of it, he argues, will require a return to many of the aspects of the gilded-age justice system he admires: Community policing (already widely adopted) should be expanded, prisons should shrink slowly (no mass releases but little new construction either), jury trials should become more common, defendants should be treated more leniently, and large parts of the drug war should ease (although not end).

For the most part, this amounts to a good, compassionate, and, yes, conservative direction for criminal justice in the U.S. Nonetheless, both Stuntz’s account of the problem and his proposed course for reform have a few real holes.

Most significant, the author’s heavy use of murder rates as a surrogate for rates of overall crime may lead him to overstate his case. In particular, in his effort to show that the U.S. justice system isn’t working, Stuntz points out that U.S. murder rates are higher than they were in the mid-1950s and higher than those in most of Europe are today. But murder alone isn’t all that reflective of the overall social consequences of crime. Unless they are living in bona fide war zones or seriously abusive relationships, ordinary law-abiding people simply do not make life decisions based on fear of being murdered: They’re much more frightened of the crimes they know happen to people like them — break-ins, robberies, car thefts, and assaults. These crimes, as Stuntz himself briefly discusses in one aside, are all more common today in major European countries than in the U.S. Furthermore, in many parts of the U.S., such crimes are currently near their all-time lowest rates since the systematic, national keeping of comparable records started in the 1930s. (The Bureau of Justice Statistics national telephone surveys of criminal victimization, beginning in the 1970s, show even steeper declines.) This isn’t a minor point: Despite its manifest negative consequences, the criminal-justice system that Stuntz describes as totally “collapsed” is doing at least an adequate job of shielding the law-abiding populace from crime.

This, in turn, means that reforms he favors — none of which he pretends will be easy — may be an even heavier lift than he says.

Similarly, his efforts to prove that the gilded-age justice system was better than the current one overstate the case in a few places. For example, he argues that slower transportation networks in days of yore resulted in truly “local” juries drawn from the same neighborhoods as the offenders they judged. This probably isn’t right: County lines, county-courthouse locations, and county jury pools are little changed since the 19th century. If anything, a broader jury pool coupled with the economic decline of many inner cities and their older “inner ring” suburbs has made the juries likely to judge inner-city defendants a bit more full of true “peers” than they were in the past. Stuntz, finally, could have used a little more review of the literature on policing:

While simply putting more cops on the beat, something Stuntz strongly favors, is rarely a bad idea, a wealth of research shows that the relationship between police levels and crime rates is a lot more complicated than he lets on.

However much one might choose to quibble with these and other of Stuntz’s lines of argument, the overall edifice of the book remains strong: Stuntz documents serious problems, describes how they deepened, and points the way towards improvement. His book deserves a wide readership.

– Mr. Lehrer is vice president of the Heartland Institute.

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