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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Second, Stuntz describes the relationship between this detachment and what he calls a “pendulum swing” of justice during the second half of the 20th century. He points out that the original effect of elite voter apathy with respect to depressed urban environments was actually a disproportionately lenient criminal justice system: The 1950s saw the beginning of a three-decade-long crime wave at a time when prison populations were actually falling. The disconnect between these trends contributed to a backlash that resulted in the excessively punitive system we have today. In both instances, Stuntz maintains that centralization has proved to be the enemy of appropriately responsive levels of punishment.

Third, Stuntz points to the evolution of the constitutional law of criminal procedure under the Warren Court and its successors. He notes that the Fourteenth Amendment—drafted to ensure the “equal protection of the laws” to all citizens as part of Reconstruction—has been struck down as a means of challenging substantive inequalities in criminal punishment (for example, the disproportionate prosecution of African Americans for the same crimes for which whites are less likely to face punishment, or for which their sentences are statistically lighter). Stuntz explains how the Warren Court attempted to improve criminal justice by building up the protections of the Fourth, Fifth, and Sixth Amendments against police and prosecutorial misconduct in evidence-gathering. Apart from being ill-suited to the task of targeting unequal outcomes in similar cases, Stuntz argues, the exclusion of incriminating evidence serves to exonerate the very defendants most likely to be guilty: those against whom such evidence exists. At a systemic level, this drains limited resources away from investigatory efforts more likely to separate innocent defendants from guilty. Not least, the apparent injustice of letting the guilty walk free has contributed to the cultural backlash driving today’s levels of incarceration.

Finally, Stuntz points to the dramatic degree of discretion today’s prosecutors have to determine punishment. Because of a dearth of prosecutors and public defenders, the vast majority of criminal cases are resolved by plea bargains, which hides the mechanics of justice from the public. Furthermore, an ever-growing body of federal criminal law of strict liability for drug and gun possession results in dual liability for crimes that were once strictly state law questions, a situation that inevitably drives up state criminal sentences. As Stuntz says, “local district attorneys can threaten to send drug or gun crime defendants to the nearest U.S. Attorney’s office” if they refuse to cop a plea.

Stuntz’s conclusions, in light of these structural problems, are both surprising and enlightening. The answer is less spending on prisons and fewer forays by the federal government into criminal legislation, but more spending on local police, prosecutors, and public defenders. Defederalization of substantive criminal law, coupled with greater resources for investigation and community policing, would allow for the essential self-government most crucial to a functional criminal system.

As Stuntz acknowledges, the greatest problem with these proposals is the unilateral political disarmament they would require, which is probably beyond the realities of this particular historical moment. But as a fascinating mix of history, law, and policy analysis, The Collapse of American Criminal Justice should engage and motivate those who wish to take the first steps toward reform.

Erin Sheley is an Olin-Searle fellow at the Georgetown University Law Center.