by William J. Stuntz. Cambridge, Mass.: The Belknap Press of Harvard University Press, 2011. 413 pp. Cloth $35.00. ISBN: 9780674051751.
Reviewed by Jack Call, Professor of Criminal Justice, Radford University. E-mail: jcall [at] radford.edu.
In The Collapse of American Criminal Justice, the late Harvard Law School professor William Stuntz incisively critiques the present state of the American criminal justice system, puts that critique in historical context, and recommends changes to fix what he perceives as broken. While the historical perspective will no doubt be of great interest to many students of the criminal justice system, for me at least, the most remarkable feature of the book is the almost total absence of an ideological perspective. Stuntz can best be described as a pragmatist who is simply looking for solutions to problems. Some of the solutions he proposes will undoubtedly disappoint liberals, while others will likely receive the same reaction from conservatives.
In the lengthy historical context with which the book commences, Stuntz begins by focusing on two migrations that led to crime waves. The crime wave initiated by the immigration of 30 million Europeans from 1850-1920 led to a “short-lived and mild” crime wave. (p.17). The second migration was internal, consisting of the movement of 7 million blacks from the South to the urban North. This crime wave was “long-lasting and severe” (Id.). The two crime waves provide a larger context for the more focused historical analysis that follows.
In the period prior to the Civil War, the criminal justice system was relatively effective, at least in the North. During this period, more power rested at the local level. Criminal law was closer to the people against whom the law was being applied. This gave people greater ability to influence the manner in which the law was enforced. Criminal trials were more frequent than they are today. Prosecutors were often paid by the case, giving them an incentive to prosecute a large proportion of crimes. This gave greater power to criminal juries. What’s more, the role of criminal juries was broad. “[T]heir job was to decide both what the defendant did and whether his conduct merited punishment” (p.84).
Right after the Civil War and passage of the 14th Amendment, federal law enforcement assumed a larger role than previously, largely because of Reconstruction. This could (and probably should) have led to use of the Equal Protection Clause to ensure that criminal law was enforced reasonably and even-handedly. Instead, the Supreme Court prevented this from happening in a series of cases interpreting federal statutes enforcing that clause. These cases took a narrow view of what constitutes state action and required proof of a racially discriminatory intent.
In the half-century or so after Reconstruction – the Gilded Age – [*134] defendants fared better than they do today. Both criminal trials and acquittals were much more common. While there were significant regional differences, Stuntz attributes the relative effectiveness of the criminal justice system during this period to large police forces, simple trial procedures, definitions of crimes that gave defendants considerable latitude to assert criminal defenses, and greater political power in the hands of the working classes.
Perhaps the two most significant features of this period were the vagueness of criminal law and the significance of local political power. Stuntz views the vagueness of criminal law as a virtue because it “left room for juries and trial judges to decide cases based on their own moral intuitions” (p.157). Local politics played a central role in the way criminal law was enforced. The working classes were often the objects of enforcement, but they exerted great influence over local political leaders who ensured that the police carried out the law in a way that was palatable to the local population.
During this period, the federal government began to play a more significant role in criminal law. Stuntz traces the development of this change as the federal government dealt with polygamy, state lotteries, prostitution, control of opium, and Prohibition. As a result of these events, a pattern developed of taking some moral issues and making them national matters.
Stuntz believes this had several undesirable consequences. Congress defined crimes broadly to facilitate successful prosecution. The Supreme Court also developed an approach to the interpretation of criminal statutes (picked up by state courts) that gave “greater deference to statutes’ language, even when that language seemed to produce odd and harsh results” (p.173). Previously, courts considered it proper to “contextualize” criminal statutes so as to mitigate undesirable outcomes.
Congress and federal prosecutors also began to play a kind of “bait and switch” game in which one kind of law was used as a kind of pretext to prosecute people that were difficult to prosecute for other crimes (for example, tax laws were used to prosecute violators of narcotics laws). The contemporary analog is, ironically, the prosecution for drug offenses of persons suspected of being involved in violent crimes for which there is insufficient evidence to prosecute.
As the twentieth century progressed, the role of the courts, especially the Supreme Court, became central. During the first half of the century, the Supreme Court saw a steady procession of criminal cases from the South – usually involving black defendants – that suggested much unfairness in the criminal process. In deciding how to deal with the issues presented by these cases, the Court faced three basic sets of options (depending on the case): 1) focusing on process or substance of the laws, 2) focusing on due process or equal protection, or 3) applying due process-based standards or creating Bill of Rights-based rules.
The Court chose to focus on process, due process, and Bill of Rights-based rules. As a result, we now have a criminal process in which the emphasis is on procedure rather substance. This helps explain why criminal cases seldom focus on appeal on justice (for example, whether the defendant was actually guilty [*135] or whether the defendant was unfairly chosen for prosecution), but instead focus almost always on whether some rule of procedure or evidence was violated. This is a feature of our criminal process that is very difficult to explain to students because it seems so counter-intuitive.
Another ramification of this development is that the role of counsel became critical, as the Court recognized in its decisions requiring state-provided counsel for indigent defendants (Gideon v. Wainwright; Argersinger v. Hamlin). At the same time, crime rates were increasing and prosecutors were pressured to prosecute more crimes, even though prosecutorial (and indigent defense) resources were not adequately increased. Two undesirable results were that plea bargaining became increasingly prevalent (thus reducing the number of trials) and defense attorneys spent less time investigating the facts of a case and more time looking for violations of their clients’ rights (because the latter took less time).
This created a more efficient, but less fair, criminal process. Case law made guilty pleas easier to obtain (and to affirm on appeal). The body of criminal law became broader (casting a wider net) and more specific (giving juries – on those rare occasions when they were utilized – less leeway to acquit when they saw that as a fair outcome). The law of mens rea (the state of mind required for a criminal offense) shifted from an emphasis on moral fault to a more general intent approach that resulted in convictions in more cases where defendants did not intend to do wrong. The broadening of criminal law resulted in more overlapping offenses, which results in multiple charging. This gives prosecutors more leverage to induce guilty pleas.
The overall impact is that “[n]ot only have Americans chosen, at least tacitly, to punish millions more criminal defendants than in past generations, we have also chosen to do the punishing with less justification and with sloppier procedures” (p.264).
In spite of the generally bleak picture of the contemporary criminal justice system painted by Stuntz, he believes there are feasible changes that would rectify many of the problems he identifies. Only the most important will be mentioned here.
His foremost concern is the lack of influence exerted over criminal justice policy by residents of high-crime areas. “If anything about American criminal justice needs changing, that does” (p.287). Part of the solution to that problem is to increase the number of police officers – especially those officers engaged in community policing.
In order to make this easier, Stuntz proposes two changes in contemporary budgeting processes. Much of the cost of operating prisons should be shifted from the states to local government, so they bear the bulk of the financial burden of incarcerating more and more offenders. This might motivate them to be more selective about whether to prosecute and to be less severe in some of their sentencing practices. On the other hand, much of the cost of law enforcement should be shifted from local governments to the state to make it easier to hire more police.
Stuntz also advocates an approach to the Equal Protection Clause that would make [*136] it easier for courts to focus on issues of discrimination in the criminal process. This would make “underpolicing of violent neighborhoods,” for example, a violation of the Constitution (p.291). It would also require overruling McCleskey v. Kemp (1987) and U.S. v. Armstrong (1996), two Supreme Court cases that make it extremely difficult (if not impossible) for criminal defendants to prove racial discrimination in sentencing and charging decisions. Prosecutors should also be required to demonstrate that their sentencing recommendations are consistent with the sentences recommended in previous similar cases.
Stuntz would like to see the power of prosecutors reduced. The last proposal mentioned in the previous paragraph would be part of this package of proposals. Another part would be to increase both the number of prosecutors and indigent defense counsel. This would reduce reliance on plea-bargaining, reduce the present prosecutorial reliance on easily proved cases, and increase the number of trials. More trials means more juries, and more juries means that community standards would again play a larger role in the justice system. This could be further facilitated by re-introducing some vagueness into criminal statutes, drawing juries from the neighborhood where the crimes occurred (and not using suburban jurors to decide inner city cases, for example), and reducing the number of peremptory challenges. Stuntz would also like to see prosecutors assigned to smaller geographical areas so that “community prosecution” – something akin to community policing – could develop.
There are at least a couple of criticisms that can be made of Stuntz’s analysis. His analysis fails to recognize that a small percentage of all criminals are responsible for a very high percentage of all crime. And he frequently makes much of the relationship between two variables: “The city with the biggest increase in the size of its police force during the 1990s was New York. The same city saw the biggest drop in urban crime during the 1990s” (p.288).
But this is nit-picking. Unlike some legal scholars, Stuntz is very aware of and frequently cites social science literature. This book is dense with information – statistical and otherwise. It is also the product of an insightful analyst of our criminal justice system. When William Stuntz succumbed to cancer last year, we lost one of the most incisive observers of the criminal justice system produced by his generation. The Collapse of American Criminal Justice is Exhibit A. He will be sorely missed.
Argersinger v. Hamlin, 407 U.S. 25 (1972).
Gideon v. Wainwright, 372 U.S. 335 (1963).
McCleskey v. Kemp, 481 U.S. 279 (1987).
U.S. v. Armstrong, 517 U.S. 456 (1996).
© Copyright 2012 by the author, Jack Call.