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The Collapse of American Criminal Justice
The Collapse of American Criminal Justice
William J. Stuntz
Belknap Press: An Imprint of Harvard University Press, 2011
432 pp., 35.00

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David Skeel

Angle of Vision

The last testament of an exceptional legal scholar.

Not so long ago, crime, especially urban crime, seemed truly uncontainable. Ronald Reagan said the streets of America's cities were "jungles." The sociologist John DiIulio, now known as the first head of the White House's Office of Faith-Based and Community Initiatives, posited that a new class of "superpredators" was emerging on America's streets.

In one sense, this is a story we've seen before in America. A century ago, the turmoil in America's cities was equally alarming. That earlier crime wave, like the more recent one, followed a massive migration. The late 19th and early 20th century brought more than 30 million Europeans to America, particularly to the cities of the Midwest and Northeast. The more recent migration was internal: over the course of the 20th century, seven million blacks moved from the South to the same cities that had earlier been transformed by European immigration.

The more recent crime wave differed from its predecessor in two important respects. First, it was far more severe. (Although crime ticked up in the early 20th century, the increase was remarkably mild given the combustible mix of predominantly Catholic immigrants, many fleeing countries that were themselves at war, settling in a Protestant country in the midst of an industrial revolution.) Second, the crime rate continued to rise even after the rate of incarceration increased, and rates of incarceration remained remarkably high even after the crime wave abated.

In The Collapse of American Criminal Justice, Bill Stuntz explains America's journey from there to here as a severe malfunction of both politics and law. The politics of 19th- and early 20th-century criminal justice were, in Stuntz's telling, local. They took different shapes in different regions—with large police forces and comparatively low incarceration in the North and Midwest, and fewer police, more volatile rates of imprisonment, and more vigilante justice in the South. But there was a common theme: the police, the prosecutors, and the jurors all came from the same neighborhood. Justice looks different when the defendant is a neighbor, somebody's brother or son. This pattern of local politics broke down during the course of the 20th century as blacks moved into the cities and whites moved out. Law hasn't helped. The scope of criminal regulation has steadily expanded, and its effects have been visited disproportionately on blacks. Although the Supreme Court has tried to curb abuses, its interventions have often been counterproductive.

This is the story Stuntz tells in The Collapse of American Criminal Justice, the capstone achievement of the most remarkable criminal justice scholar of the past generation. Although the book is a long parting lament, Stuntz thought that it still may be possible to undo much of the damage of the past century.

Stuntz began his career as a criminal procedure scholar in 1986, when he returned to the University of Virginia School of Law after graduating from Virginia two years earlier and clerking first with Judge Louis Pollak, a former law school dean at Yale and the University of Pennsylvania, and then with Supreme Court Justice Lewis Powell. Stuntz was only a year or two older than most of his students, and looked younger, so he grew a scraggly beard.

Criminal procedure had its heyday in the 1960s, when the Supreme Court, under the leadership of former California governor Earl Warren, radically expanded the constitutional protections for criminal defendants. (Criminal procedure comprises the laws governing police and prosecutor behavior; it and "substantive" criminal law are the two major subfields of criminal justice.) In Mapp v. Ohio (1961), the Court ruled that the protection in the Fourth Amendment against unlawful searches and seizures applied in state cases, not just federal ones; in Gideon v. Wainright (1963), it interpreted the Sixth Amendment's guarantee of representation to require free counsel for indigent defendants in all serious criminal cases; and in Miranda v. Arizona (1966), it defined the Fifth Amendment privilege against self-incrimination to require the familiar warnings that suspects have the right to remain silent and that anything they say may be used against them at trial. Two decades later, the Warren Court Revolution continued to cast its spell over criminal procedure scholarship.

While criminal procedure scholars pined for the Warren Court, their criminal law brethren debated the philosophy of punishment or the details of particular criminal laws. As with two tribes whose language and customs have diverged, there was little commerce between them. Stuntz tore down the barriers and almost single-handedly reoriented the two subfields. Drawing on a perspective known as public choice—which assumes that voters and politicians act in accordance with their own self-interest—he considered the implications of criminal procedure and substantive criminal law for each of the major players in the criminal justice system. Stuntz took an almost perverse pleasure in unsettling conventional wisdom. Most famously, he argued that the Warren Court revolution has encouraged indigent defendants to rely on procedural defenses such as their Miranda rights or the exclusionary rule rather than substantive ones, and may have left the very criminal suspects it was designed to protect worse off than before.

Stuntz took people by surprise in another way as well. Almost alone among legal scholars in the leading law schools in his day (Michael McConnell, then at the University of Chicago, was another major exception), he was an evangelical Christian.

Starting in the late 1990s, Stuntz wrote frequently on hot button public issues. He contrasted prosecutors' need to concoct an apparent lie to prevent a bloody glove from being excluded from the O.J. Simpson trial, with Ken Starr's ease in securing evidence of doubtful importance to his actual investigation. The lesson, Stuntz concluded, was that the exclusionary rule should be applied differently in different contexts. After the September 11 attacks, Stuntz confounded legal scholars by defending the use of profiling to combat terrorism under some circumstances. Even more eyebrows were raised when Stuntz wrote a Weekly Standard cover story insisting—rightly, we now know—that the Iraq surge would likely succeed.

Throughout this period, Stuntz continued to write about the criminal justice system. The articles increasingly emphasized racial disparities and the decline of local democracy that would become one of the main themes of the new book. In 2008, after eight years of debilitating back problems, Stuntz was diagnosed with Stage IV colon cancer. He had recently begun working in earnest on The Collapse of American Criminal Justice; he knew it would be both his first full-fledged book, and his last.

The heart of the book is a seven-chapter march through American criminal justice from the post Civil War Reconstruction Period to the present. In the late 19th century, American criminal justice worked surprisingly well, in no small part because the police, prosecutors, juries, and criminal defendants usually came from the same neighborhoods, especially in America's cities. Criminal defendants were neighbors, and jurors balanced their sympathy for the defendants' plight with their concern that their neighborhoods be safe. In Chicago, Stuntz reports, a man who killed someone in the heat of a poker dispute or drunken brawl would generally go free if he said it was self-defense. This was the kind of "jury nullification" we could use a little more of today.

Stuntz has considerably less praise for the Supreme Court's handiwork during this period. The Court doused the sweeping promise of the Equal Protection Clause of the Fourteenth Amendment, which guarantees "equal protection of the laws," by ruling both that the government did not violate the amendment if it failed to protect against discrimination, and that a victim could not invoke the Equal Protection Clause unless he could show discriminatory intent, not just a pattern of discrimination. Criminal defendants were forced to fall back on other protections, such as the Due Process Clauses of the Fifth and Fourteenth Amendments, which assure that the government will not "deprive any person of life, liberty, or property, without due process of law."

The Court also left its mark on the culture wars unleashed by the surge of immigration in the late 19th and early 20th century. Protestant moral reformers' campaigns against licentiousness brought laws criminalizing lotteries, prostitution and drugs—many of which were constitutionally precarious. The Court gave Congress' power to regulate interstate commerce unprecedentedly broad scope, upholding the prosecution under the Mann Act, which was designed to ban prostitution, of a man who took a train trip with his mistress with sex but not money or commerce in mind.

After the rise and fall of Prohibition, to which we will return, and a new symbolic politics of crime that rose from its ashes—as pioneered by New York Governor Thomas Dewey and FBI head J. Edgar Hoover—came the Warren Court Revolution. In Stuntz's telling, the Warren Court's big mistake was not just the Court's proceduralization of criminal justice but also the imposition of these costs on police and prosecutors just as crime rates began to skyrocket. This created an opening for politicians like George Wallace and then Ronald Reagan to appeal to voters' racism without explicitly invoking race. They could attack the white, middle-aged justices of the Supreme Court instead.

In the wake of this backlash and the bidding war that developed as politicians of both parties sought to position themselves as tough on crime, America's prison population has soared, at the same time becoming disproportionately black. Too many black Americans are behind bars, yet it wouldn't make sense to simply empty the prisons. What can be done?

Stuntz offers two general kinds of prescriptions in his closing chapter. The first is to restore the local democracy that once characterized American criminal justice, and to sharply increase the ratio of police officers to prisoners. More cops on the streets, he argues, would mean less crime and less need for prisons. To nudge lawmakers in this direction, he proposes shifting more of the cost of incarceration from the state to the local level, and the cost of police salaries in the opposite direction, to make it costlier for prosecutors to throw criminal defendants in prison. Stuntz's other major proposal is to rejuvenate the Equal Protection Clause, so that courts can police against racial differences in sentencing and the strategic use by prosecutors of laws that are not systematically enforced.

Stuntz's portrayal of the Warren Court as responsible for a massive wrong turn in criminal justice is especially damning because he does not question the justices' motives. The Warren Court, he contends, did the wrong thing for the right reasons. Arguments like these marked Stuntz as a conservative throughout his scholarly career. But conservatives come in for equally pointed criticism in The Collapse of American Criminal Justice. Not only did Reagan's appeal to race-based fear factors help fuel the steep rise in incarceration, but so too did, of all people, conservative law professors. According to Stuntz, textualism—a conservative theory of interpretation that is often associated with Justice Antonin Scalia, and which holds that judges should rely solely on the literal language of the relevant law—discourages judges from departing from the strict contours of the law, even when circumstances cry out for mercy.

Stuntz's scrambling of categories and penchant for the counterintuitive extended even to his own views. In earlier work, Stuntz had criticized Prohibition as "self-defeating." If a temporary majority uses its power to criminalize immoral behavior, but the ban cannot realistically be enforced, he argued, it invites discriminatory enforcement. This discrimination can breed disrespect for the law, prompting a backlash that undermines the very norm it was designed to promote. I have often drawn on this insight in my own work, some of it co-authored with Stuntz. Imagine my surprise when I read in The Collapse of American Criminal Justice that Prohibition actually was a great success—America's "good culture war." Stuntz doesn't question the evidence of inconsistent enforcement: "As for growing disrespect for the law, that phenomenon was real," he writes, "but there is another side to the story …. For all the justified claims of enforcement bias, it bears emphasizing that the criminal law of alcohol was enforced, and seriously—especially by the federal government." Moreover, and of particular moment for Stuntz's prevailing theme, Prohibition was a successful experiment in democracy. Unlike abortion (which "has been resolved, for now at least, by judicial fiat") and unlike the disastrous, unstable war on drugs, Prohibition was determined "by public persuasion: Americans saw the consequences of the dry experiment and changed their minds about its merits."

In The Collapse of American Criminal Justice, as in the many writings that preceded it, Stuntz tested his own and others' ideas, and sought to determine whether they are true. He regularly punctured the conventional wisdom, even when the conventional wisdom was his own.

Future scholars no doubt will pull at some of the threads of his history, which is sweeping as well as brilliantly organized. I doubt they will question his numbers, however, or the basic patterns. When someone recently asked me who Stuntz's intellectual influences were, I was tempted to point to the Department of Justice's Sourcebook on Criminal Justice and the FBI's Uniform Crime Reports, which he pored over obsessively, and which were the source of many of the stunning statistics revealed in the book.

In a new collection of essays on his work, Stuntz's colleague Carol Steiker marvels that her approach to issues of mercy and justice "is more explicitly religious in inspiration than Bill's own, despite the fact that he was a devout Christian and I am an (at most) agnostic Jew."[1] Writing in the same volume, Michael Seidman, another dear friend, puzzles that "at least to my knowledge, his work focusing on criminal justice nowhere explicitly invokes his Christian commitments." The Collapse of American Criminal Justice fits this pattern. The only direct reference to Stuntz's faith comes in the acknowledgements, which were written by his family.

Stuntz's Christian commitments were well known, in part because he wrote several articles and a variety of commentary about Christianity and law, but much more because it was impossible to know Stuntz without knowing his faith. How else to explain his humility and his love for both of the principal communities in his life: his Christian community and his law school colleagues? In a commentary that David Brooks singled out in The New York Times as one of the finest essays written in 2004, Stuntz contended that these communities have more in common than they imagine, and pleaded with them to learn from one another.[2] Bill epitomized the quality that we often refer to, sometimes a little too glibly, as lifestyle evangelism.

Such hope as Stuntz offers in The Collapse of Criminal Justice is grounded in the same qualities. If we were to restore local democracy in criminal justice, he argues; if we put more cops on the streets and fewer young black men in prison; if courts worried less about privacy and more about how police officers treat criminal suspects, the quality of justice might be a little less strained.

Shortly before he died, a friend and colleague of Bill's sent me an urgent email message. He had just visited Bill, who was confined to a hospital bed on the first floor of his house and seemed to be rapidly failing. If I wanted to contact him one last time, the friend said, I should email right away. I was deeply grateful for the forewarning, as I had not yet really said goodbye. I tapped out a message telling Bill how much I loved him, and how much I had learned about Jesus from his, as well as his wife Ruth's, Christlikeness throughout his ordeal. I typed "Goodbye" on the subject line, sent the message, and left for my office.

The moment I opened the door, the phone rang. It was Bill, who had not yet seen my email. He hadn't called to discuss any of the obvious issues; he was worried about something that seemed vastly smaller: the dedication to his book. He knew we are supposed to dedicate our books to Jesus, he said, but several colleagues, none of whom would identify her- or himself as Christian, had made the book possible. On two different occasions, Steiker had offered to step in (and did step in) and teach large classes of Bill's, once on top of her own heavy teaching load and once during a sabbatical, because Bill's health problems made it impossible to continue after he had started the semester. She, along with two others, would be shepherding The Collapse of American Criminal Justice through the final stages of publication. Did I think it would be okay if he dedicated the book to these three friends?

Of course it was okay. And of course Bill was dedicating the book to Jesus when he wrote: "For Mike Klarman, Danny Richman, and Carol Steiker—the most generous colleagues anyone could hope for."

David Skeel, a law professor at the University of Pennsylvania, is the author of The New Financial Deal: Understanding the Dodd-Frank Act and Its (Unintended) Consequences (Wiley).

1. The Political Heart of Criminal Procedure: Essays on Themes of William J. Stuntz (Cambridge Univ. Press, 2012).

2. William Stuntz, "Faculty Clubs and Church Pews," TCS Daily (November 2004).

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