The Magazine

Punishment and Crime

A distinguished scholar tells us how we got here.

Oct 31, 2011, Vol. 17, No. 07 • By ERIN SHELEY
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Moderation is too rarely a stance to gain impassioned support in policy debates, and even less so when the subject is the state of American criminal justice. The disproportionate number of young African-American men behind bars at any given time (approximately 11 percent of those between ages 20 and 34) frequently elicits sweeping condemnation of both the justice system and the police departments that enforce the law. On the other side of the coin, the project of constitutional criminal procedural reform, inaugurated by Earl Warren’s Supreme Court in the 1960s and extended in the decades since, frequently sparks outrage for its tendency to allow the guiltiest of defendants to escape punishment through the exclusion of incriminating evidence on procedural grounds. (A recent example is Giles v. California from 2008, which found that a defendant’s Sixth Amendment right to confront his accuser was violated by the introduction of his girlfriend’s past account of physical abuse at his hands because she was unavailable to testify in person at his trial—for her murder.)

Photo of a judge's gavel

The sheer stakes of criminal justice debates—weighing, as they do, the threat of criminal violence against victims with the threat of state violence against defendants—naturally alienate the most invested sides from one another, particularly along racial lines, and in a uniquely virulent manner.

In this, his last book, now published posthumously, the Harvard Law School scholar William J. Stuntz attempts to bridge the gap with a comprehensive look at the historical, legal, and social forces that have produced today’s criminal justice system. Synthesizing the insights from a prolific career—shortened tragically by cancer earlier this year—Stuntz here describes how we arrived at today’s flawed system and offers his prescriptions for making that system more just for victims and defendants alike. And though he draws from a wide range of scholarly sources across several fields, Stuntz’s writing is accessible for most general readers with an interest in crime, criminology, and justice.

The closing words of the epilogue indicate the ideal of justice-in-moderation which animates Stuntz’s entire project:

The criminals we incarcerate are not some alien enemy. Nor, for that matter, are the police officers and prosecutors who seek to fight crime in those criminals’ neighborhoods. Neither side of this divide is “them.” Both sides are us.

The most important contributions are Stuntz’s identification of the highly contingent, even coincidental, developments that have contributed to the dramatic alienation between the criminal, the criminal justice professional, and the citizen in general. While the bulk of this account proceeds in a chronological manner, four themes emerge most powerfully to reshape any reader’s thinking about criminal punishment.

The first relates to changing demographics and the impact of suburban voters on criminal justice policy. Stuntz points out the similarities between the two great migrations of the 19th century and their consequences for criminal justice: the influx of poor European immigrants into American cities, and that of the newly freed slaves into the North. And while the enforcement of Prohibition during 1920-33 has been compared to the “war” on drugs in its disproportionate targeting of minority populations—during Prohibition it was primarily Catholic immigrants—Stuntz points out that enforcement was ultimately unsuccessful because of the local nature of crime politics at the time. The architects of turn-of-the-century enforcement were local police and prosecutors, who depended on urban immigrant voters for their election. The result, Stuntz shows, was frequent jury trials in lieu of the broad prosecutorial discretion afforded by today’s substantive criminal law, and a criminal justice system more directly responsive and legitimate in the eyes of the populations it policed.

Stuntz argues that the rise of suburbs and more affluent white neighborhoods within cities has resulted in a situation where the political authority over punishment has shifted to those who are least affected by the realities of crime and away from the populations with the greatest stake in judging it. Therefore, even though African Americans are the disproportionate victims of criminal violence, these communities feel mistrustful and alienated from the authorities who seek to punish it.