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Stuntz’s Criminal Law

The late William Stuntz’s The Collapse of American Criminal Justice manages to explanatorily and thematically link a wide range of issues concerning criminal justice, integrating aspects of constitutional law, criminal procedure, demographic facts, prosecutorial discretion, jury selection, plea-bargaining, mandatory sentences, and other matters. Integrating all of those issues without the focus being blurred or the argument sprawling messily is an admirable achievement.

The book’s central concern is the grand issue of democratizing and humanizing criminal justice. It offers an explanation of how criminal justice has been pushed in undemocratic and inhumane directions and it does so without laying the bulk of blame at one particular institution, agent, or factor. On the one hand, that is a merit of the account; it does not substitute adjectives for arguments and demonize particular individuals or political parties or ‘capitalism,’ for example. There is some modest demonization but it is spread around and Stuntz often argues that the untoward consequences of decisions and policies were not the intended aims of those decisions and policies. Sometimes they just reflected prevailing cultural and social perspectives; sometimes they were simply inattentive to what might result.  On the other hand, acknowledgment of the complexity of explanatory factors and the ways in which the politicization of law aggravates the problems suggests that the remedy will be neither swift nor certain, and that optimism should be both modest and guarded.

Stuntz notes that, “American governments spend roughly $200 billion each year on policing, criminal adjudication, and corrections combined.” [p.52] Clearly, in light of the enormous problems in contemporary criminal justice in America, much of that money is not well spent. In Stuntz’s view, one of the chief reasons for many of the problems is the diminution of “neighborhood democracy”. This issue of neighborhood democracy, of local community participation in key aspects of criminal justice, is a pronounced theme of the book and it is mentioned many times as an important remedial direction for criminal justice. I hesitate to refer to a ‘criminal justice system.’ That would connote more coherence, intentionality and design than is actually the case. (Stuntz, I believe, would agree.) Indeed, an important thread in the fabric of argument he weaves is that historical contingency, under which fall such things as decisions of the Supreme Court, demographic developments, and outcomes of elections, has had very considerable significance.

Among the most important of the unplanned influences on criminal justice is the way that the Supreme Court has interpreted the Constitution and the ways in which the Bill of Rights applies to states and to individuals. In Stuntz’s view two of the most crucial historical periods with regard to the Court are (i) Reconstruction and its aftermath and, (ii) the Warren Court. In both instances, Stuntz argues, the Court set criminal justice in directions that came to have highly significant, very undesirable results. In the first, Stuntz argues that the Court undid many of the Constitutional protections for African-Americans by focusing on whether states acted in formally correct ways rather than focusing on individuals’ privileges and immunities. Almost a century later the Court “made the constitutional law of criminal justice into something narrower and less useful: a constitutional law of criminal procedure.” [p. 210] “Warren Court criminal procedure would be grounded in due process, not equal protection.” [211]

Moreover, there is an important connection between the Reconstruction era and the later civil rights era. In the former “the legal system came close, sometimes tantalizingly so, to offering something larger and better [regarding Constitutional matters]. In each, the opportunity was missed—hence the pressure on Earl Warren’s Supreme Court to embrace more aggressive reforms.” [201] The reforms often created procedural complexities that distracted the focus of criminal justice in ways that have made police work, prosecution, and trials more difficult, much more expensive, and increasingly remote from actually coming to grips with crime. (“[I]t helps to think of the relevant procedural rules as a legal tax on police officers and prosecutors.” [234])

The Prohibition era and the Repeal era are also highly significant, according to Stuntz. The chief reason is the way in which they led to enormous expansions of federal power.  [100] Stuntz refers to Prohibition as “America’s good culture war” [185] in contrast to the war on drugs. However, given the growth of organized crime as a result of Prohibition, along with increasing labor violence, and the way in which issues of race and class have figured in the way many Americans interpret crime and crime-fighting, a number of powerful and “creative politicians changed the governance of America’s justice system.” [188] The chief development (encouraged and led by figures such as T. Dewey, J. E. Hoover, and E. Kefauver—and in later generations R. Kennedy, R. Reagan, and L. Johnson)—was to “nationalize the politics of crime.” [188] “[P]ower over American criminal justice—at least the power to manipulate political symbols—gradually shifted from the local communities where crimes took place, to the voters who elected the legislators who enacted these not-quite-symbolic criminal prohibitions.” [191]

The expansion of the federal government’s role, combined with the ways the Court decided several key issues, along with the bureaucratization of policing, and the rigidity of much criminal law has led to our unhappy current situation. The situation includes a staggering prison population, a tiny percentage of jury trials, a sort of commodification of plea-bargaining, and the near destruction of many communities on account of the geography of race and the pursuit of the more easily prosecuted offenses such as drug possession. Politically, the need to show vigor in warring against crime aggravated these tendencies. The fact that there were deadly riots in inner cities and a dramatic increase in crime during the 60’s fueled the political resolve to be ‘tough on crime.’ However, the social and cultural result of the legal and political form of toughness on crime was that more and more violent crime was located in areas with the least political clout and diminished control over the handling of crime. The chief upshot is a combination of “too much law” [283] too much incarceration, too much plea-bargaining, too few jury trials, and a deficiency of local democracy. There is a colossal “failure of democratic governance.” [255]

There are other important elements to Stuntz’s analysis and his historical interpretations but the ones above indicate core elements of it. Criminal justice, he argues, has largely ceased to be a shared concern of members of communities. Policing has become professionalized and in many respects, remote from interaction with communities except by way of recording large numbers of arrests. Plea-bargaining has “become the system’s primary means of judging criminal defendants’ guilt or innocence.” [302] The rigidity of criminal codes has squeezed out space for discretion and the role of juries. “Reintroducing a measure of vagueness to American criminal law would trigger more jury trials…”. [303] “Vaguely defined crimes…are democracy’s friend.” [303] Recreating “the right kinds of democracy” [312] will produce a system both “more effective and much more humane.” [311]

There are so many respects in which criminal justice has been distanced from citizen-participation by increasing professionalization, regimentation, and bureaucratization that, even though many people are aware of what a costly mess it is, there does not seem to be a swell of engaged concern aimed at bringing about significant changes. One factor that could help is that the cost of incarceration is ballooning and voters do respond to cost issues. Yet, there is still sufficient political capital in being ‘tough on drug dealers’ and the violence they cause that politicians are not likely to aggressively endorse decriminalization or even significant reduction in sentencing.

Given the historical, legal, social, and political complexity of matters it looks like repair would require either a coordinated, multi-pronged approach or a steady, sustained series of changes, complementing each other in constructive ways. Neither is a likely prospect in the current political atmosphere, especially on account of the way bipartisan efforts are now widely perceived as cowardly (at the same time that nearly everyone touts the virtues of them).

Stuntz’s emphasis on a restoration of democracy seems well placed. But, a condition for that occurring might be an explicit, publicly aired reconsideration of the powers and responsibilities of citizens, a reconsideration that emphasizes the importance of returning to citizens and communities a recognizably important role in criminal justice. It has indeed been professionalized, bureaucratized, and politicized in ways that render it alien to any widely shared sense of how ordinary people can and should participate in criminal justice. If one of the key features of a liberal polity is that there is broad agreement on values and principles informing criminal justice (with respect to what is criminalized, with respect to criminal procedure, with respect to sentencing—not in all details but as part of a common conception of what sort of criminal justice society achieves and aspires to) it will be necessary to somehow depoliticize many of the issues. That, in turn, could lead to a measure of de-professionalization and de-bureaucratization. How the articulation of that conception is to be accomplished, and how to bring it about that more citizens think of themselves as agents and not just clients of politicians, may be the main task.

There are important causal relations between an open, dynamic, heterogeneous civil society on the one hand, and the liberal rule of law on the other. The latter provides and preserves conditions in which the former can flourish. Participation in an open civil society can supply persons with reasons to appreciate the liberal order and can motivate effective concern for it. But the causal relations do not always or only work in constructive, welcome ways. If, for example, civil society is heterogeneous but not genuinely open—if it is a collection of groups for whom identity politics is part of people’s self-conceptions and dominates political vocabulary—that will not motivate genuine concern for a genuinely liberal order (or a genuinely open civil society, either).

Also, in a liberal-democratic state it is possible for the prevailing mode of politics to change the rule of law into something more like the rule of policy. This occurs when people become accustomed to a political culture in which it is thought that responsible governance requires policy for as many issues as can be identified. In that case there may be plenty of democratic process but the political order will cease to be genuinely liberal. As a result, there will be respects in which the openness of civil society will be restricted, with policy imposing constraints on many issues and contexts, which, in a more liberal order, would be left to the ‘metabolism’ of civil society rather than managed by policy, bureaucracy, and regulatory administration.

I suspect that in contemporary American political culture there is increasing (if not always articulate) acknowledgment of the tensions that are possible between democratic process and the liberal order. Whether this will emerge in a clearer fashion and become a matter of explicit, coherent debate in the political culture remains to be seen. If that does not happen, it may be that criminal justice will remain highly subject to the not always measured sensibilities of highly symbolic politics. Criminal justice issues will continue to be used by politicians rather than addressed by them. However, a plausible case could be made that criminal justice in its present form is antithetical to civil society and the liberal rule of law in many respects. Stuntz has done an effective job of diagnosing many of the factors, processes, and events that have brought that about.

His emphasis on neighborhood democracy as a key element in making the culture of criminal justice more healthy almost surely needs to be accompanied by a restoration of understanding of the liberal rule of law. Where that will originate and how it will be sustained I cannot say; the need for it, however, is palpable. Part of the process of change would come from contracting the role of “judicially mandated federalism” [306] something Stuntz believes “obscures accountability and wastes the time of litigants and courts alike.” [306]

The mess that criminal justice is in at present did not come to be as a result of an overall, systematic, doctrinal effort. It is doubtful that remedy will come from such an effort. However, unless efforts at cost-control, less harsh sentencing, greater citizen involvement, more sensible cost-sharing, and so forth are seen to be related to the grand issues of political culture and the nature of an open civil society under the liberal rule of law there is plenty of reason to be deeply concerned about the prospects for criminal justice in America. As noted above, anger about cost may trigger a larger debate and a broader perspective. That may sufficiently energize and popularize the discussion so that the fundamental normative issues actually get a hearing as well. Worries about cost may not exemplify the pinnacle of civic virtue but if they draw more sustained, more critical and careful attention to the difference made to society by criminal justice that would be welcome. That sort of attention is necessary for remedy. And the attention needs, I believe, to include an accessible articulation of what sort of rule of law is at issue, and not just discussion of what to do about crime.

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on December 17, 2014 at 05:09:55 am

[…] John Jay College, CUNY. This essay was originally published in February 2012 at Liberty Fund’s Library of Law and Liberty, and it is republished here with gracious permission from that […]

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“Stuntz’s Criminal Law,” By Jonathan Jacobs | Nomocracy In Politics

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.