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Celebrating William Stuntz

A gentleman-scholar at Harvard Law School.

Apr 19, 2010, Vol. 15, No. 29 • By ERIN SHELEY
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Legal academia is not famous for collective displays of appreciation, and even less so for the humility of its members. So the celebration of the work of William Stuntz held at Harvard Law School on March 26 and 27 was doubly extraordinary. On those two days, legal scholars and practitioners from a range of philosophical and methodological perspectives came together to express their admiration for the work of a singularly modest man.

Celebrating William Stuntz

Photo of William Stuntz

Phil Farnsworth

Professor Stuntz—an occasional contributor to this magazine—is credited with signal contributions to the fields of criminal law and criminal procedure. According to University of Pennsylvania law professor David Skeel, coauthor with Stuntz of the blog “Less than the Least” and an organizer and moderator of the event, “a lot of people used to think of criminal procedure as a backwater. One theme of the conference was how the field has really taken off thanks to Bill’s work.” Stuntz’s attention to the “political economy” of criminal law—the relationship between the institutional arrangements of the criminal justice system and its outcomes—has “transformed the field,” according to Richard McAdams of the University of Chicago Law School.

While a symposium examining the influence of a single scholar is not unheard of, such gatherings are rare. But Stuntz, who has suffered from acute chronic pain for years, is now also fighting cancer, and his meditations on faith, living, and dying on the blog have attracted a wide following. Thus, the Harvard conference, in addition to its focus on legal scholarship, was personal for its participants, many of whom were colleagues, mentors, former students, and scholarly interlocutors of Stuntz.

The first session addressed Stuntz’s work on the problems caused by the structure of the criminal justice system. McAdams showed how legal scholars previously failed to examine the function of police, prosecutors, and other players in the system as “agents” of the citizens—a relationship that has been studied at length in the context of corporate law, with respect to executives and shareholders. Stuntz began to fill this gap. In his 2001 article “The Pathological Politics of Criminal Law,” for example, he argued that the breadth and severity of criminal justice derives not from the electorate but from their agents, who are motivated by predominantly institutional politics. Particularly powerful, he argued, are the incentives, flowing from prosecutorial discretion, that motivate legislators to broaden liability rules, which in turn yields yet further prosecutorial discretion. 

At the end of the first session, Stuntz highlighted three problems he believes contribute to massive over-incarceration and which merit further study. First, he noted the vertical allocation of power between state legislatures and local governments, where the former define criminal laws but do not oversee their enforcement, allowing local prosecutors and police departments free rein to pursue their own goals. Second, the horizontal allocation of power between police and prosecutors, with prosecutors exercising more control over the number of people who go to jail, which has risen despite the fall of the urban arrest rate in the 1990s. And third, the increasingly statutory nature of criminal law, which has obscured the considerations of a defendant’s intent that once allowed for nuanced sentencing decisions under the common law, in favor of an increasingly strict liability system allowing less room for lesser punishments.

Another panel entitled “Emotion, Discretion, Mercy, and Faith” discussed the impact of Stuntz—an evangelical Christian who has blogged on the role of mercy in the law, though he has not addressed it directly in his scholarship—on the intersection of these controversial ideals in criminal law. 

His Harvard colleague Carol Steiker, who has taken a particular interest in capital punishment, discussed Stuntz’s notion of the “one way ratchet” in criminal justice—his insight that criminal liability is ever-widening, and sentences ever harsher, because of the political and other incentives of the actors in the system as it is currently configured. Steiker observes that the answer to this problem “should not be to limit discretion but rather  .  .  .  to have a normative discussion about good versus bad discretion, which is where the idea of mercy comes in.” The concept of mercy, Steiker argues, offers a possible solution insofar as it invites consideration of “whether to punish when one has a choice.” 

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