To read the entire review, click on book title below.
Where American criminal justice went wrong
Dear Shire juror or prospective juror, the book in question is by one William Stuntz, who was a Harvard Law School professor. The book review hereto linked and abbreviated is by Leon Neyfakh and was originally published by the Boston Globe on 26 February 2012. It offers something to ponder as you consider the defendant before you.
The book was written in a hurry. It had to be, because William Stuntz was dying, and the story he wanted to tell was long and complicated. It would be the Harvard Law School professor’s final major work, a sweeping indictment of the system he had been studying for 25 years.
What drove Stuntz to finish the book … was a belief that something had gone fundamentally awry in America. Stuntz, an evangelical Christian and an avowed conservative, wanted people to grasp the profundity of the crisis he had observed — how, over the past 50 years, our criminal justice system had been transformed into an unfair, amoral bureaucracy–one that had given up on the very idea of justice.
Stuntz submitted his completed manuscript to his editor at Harvard University Press in January 2011, about three months before he died at age 52. “The Collapse of American Criminal Justice” was published the following fall…. In it, Stuntz describes how America’s incarceration rate came to be the highest in the industrial world; how the country’s young black males came to bear the brunt of its increasingly harsh penal code; and how jury trials became so rare that more than 95 percent of people sent to prison never had their guilt or innocence deliberated in court. At the heart of the book is Stuntz’s surprising argument about how we reached this point: that well-intentioned Supreme Court rulings meant to protect defendants from unfair and discriminatory police practices combined with the harsh laws passed in response to the crime wave of the 1960s and ’70s to produce a system that is merciless, destructive, and above all, unjust.
It is precisely because Stuntz was such a peculiar political animal that his book – which has been praised in outlets as politically diverse as the Nation and the National Review, and has been endorsed by the likes of Richard Posner and former Supreme Court Justice John Paul Stevens – is now being described by legal scholars as a work of potentially huge influence.
The debate over what these [prison statistics] mean has tended to break down along a neat political fault-line, with liberals blaming unfair drug laws, racist prosecutors, and excessively harsh “three strikes” sentencing guidelines, and law-and-order conservatives pointing to the nation’s falling crime rate as evidence that whatever our justice system is doing is actually working quite well.
Instead of pointing the finger one way or the other, Stuntz decided to look at the entire “political economy” of the justice system, as he called it: the prosecutors who charge people with crimes, the attorneys who defend them, the courts that determine who is allowed to do what, and the legislators who craft the laws in the first place. Stuntz’s approach grew out of his experience as a student, and later a professor, at the University of Virginia School of Law, which was a hotbed for a movement within the legal academy known as “law and economics,” whose proponents believe laws should be assessed not just on principle and precedent, but on what kind of behaviors they incentivize in the real world.
As criminal justice became a clash of mandates and bureaucratic rules, it became untethered from what was once its basic function: separating the guilty from the innocent and delivering fair punishment to those who deserved it. Today, most criminal cases are resolved without any verdict on a defendant’s guilt in a courtroom, but instead through a sort of procedural crossfire. In effect, those rights that the Warren Court gave defendants have become bargaining chips, to be traded away by defense attorneys in exchange for shorter sentences.
Under the current system, justice is essentially administered by prosecutors, who have every incentive to threaten defendants with the harshest possible sentence–and indirectly driven by politicians, who court the favor of voters by passing more and tougher laws. The practical result, Stuntz writes, is that the criminal justice system is now anything but local, and mostly indifferent to the people whose lives are most directly affected by it. Poor minorities who live in the urban neighborhoods with the most crime are living under laws passed to please middle-class voters who live elsewhere, and processed by a system built to force a guilty plea rather than determine whether they actually deserve to go to prison.
That imbalance is at the center of Stuntz’s book, and it reads as a wake-up call to Americans under the illusion that our justice system still centers around the jury trials promised in the Constitution. But in arguing that fair-minded and consistent procedure is not, in itself, enough to guarantee just outcomes, Stuntz was also issuing a profound challenge to his own profession.
Stuntz wanted to show that there was nothing inevitable about our present circumstances–that what has gone wrong in our criminal justice system is the result of decisions and miscalculations that can be identified and understood. That doesn’t mean they can be easily annulled, of course, but it does provide hope that change is possible.
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