Originalist thought has not just been on a steady legal trajectory over the last 20 years. There is also an important and overlooked political story to tell.
The Criminal Justice System as the Enemy of Liberty
Over the last generation, few legal scholars have been more influential than Harvard Law School’s Professor William J. Stuntz. In a brilliant legal career that began as a student, and later a faculty member, at the University of Virginia School of Law – where I had the privilege of being one of his students twenty years ago – Stuntz consistently blazed new trails in criminal procedure scholarship. Before he entered the scene, much of the literature divided along the usual left-right lines. Liberals generally defended the Warren Court’s activism in criminal procedure as promoting fairness and equality, particularly for minorities and the poor, while the field’s few conservatives bitterly criticized the Court for, in effect, handcuffing the police with improper procedural mandates that made it harder to solve crimes.
Both sides, Stuntz argued, were wrong. Miranda v. Arizona (which made advice of rights a constitutional prerequisite to the admissibility of custodial confessions), Mapp v. Ohio (which required states to exclude at trial illegally seized evidence), and other controversial Warren Court decisions neither handcuffed the police nor made criminal trials more just. To the contrary, they fueled the politicization of criminal law, making law enforcement’s job easier instead of harder. They also worsened problems of unfairness and inequality by giving prosecutors enormous, virtually unchecked power to coerce innocent and guilty defendants alike to waive their constitutional rights and plead guilty.
Although Stuntz lost his struggle with cancer last year, we are fortunate that he lived long enough to complete his masterwork: The Collapse of American Criminal Justice. The book weaves into a grand narrative of remarkable breadth and learning the various themes his prior scholarship explored. Collapse gives us a long, hard look at the criminal justice system, both as it now exists and how it has developed over time – and, as the title implies, the picture isn’t pretty.
Simply put, the criminal justice system has developed into a grave threat to individual liberty. Stuntz is no libertarian, but his magnum opus should send chills down the spines of libertarians and, indeed, anyone who cares about individual liberty.
After all, even as they challenge the legitimacy of government functions that liberals and conservatives alike accept, libertarians readily endorse criminal law as one of the few proper functions of government. The reason, at bottom, is liberty: those who would kill or harm us, or steal our possessions, threaten our rights and liberty, and so government simply must protect citizens against the predations of others. The assumption here – which not only libertarian but any defense of the criminal law make – is that the criminal justice system focuses the heavy hand of the law only on wrongdoers (the kind of people who, unlike “us,” deserve and require punishment) and dispenses punishment rationally, not arbitrarily.
Nothing, according to Stuntz, could be farther from the truth. Cherished ideals of free governments – including the rule of law and self-government – have all but disappeared from contemporary American criminal justice. As he puts it, “[t]he system dispenses not justice according to law, but the ‘justice’ of official discretion” – which, he adds, “too often amounts to discriminatory justice.”
Today’s criminal codes are stunningly broad, both in number and scope. There are more than four thousand criminal laws on the federal books alone, even though the federal government accounts for a small fraction of this country’s law enforcement. At both the state and federal level, legislators continuously add to sprawling criminal codes and ratchet up penalties – even when, as during the 1990s, crime rates are falling. Far from being responses to genuine public-safety needs, new legislation creating more crimes or raising penalties for existing crimes serves, in most instances, as cynical efforts to convince white suburban voters obsessed with inner-city crime that their representatives are sufficiently “tough” on crime.
The ever-growing body of criminal law that this political dynamic generates is more far-reaching in scope than most citizens comprehend. Many criminal laws are aimed at conduct that is not dangerous to others (such as “morals offenses” and other “victimless” crimes) or inherently wrongful (such as regulatory offenses that punish unintentional violations of technical, if not obscure, administrative regulations). Even when new criminal legislation is aimed at dangerous conduct, the legislative goal typically is not to define the precise conduct that threatens the public safety. Instead, the goal is to confer on law enforcement as much power as possible over the area in question and to make it easy for prosecutors to convict those few they select for prosecution from the considerably larger universe of offenders.
The result, as Stuntz famously put it elsewhere, is modern criminal codes that “cover everything and decide nothing.” To put it differently, it is not the criminal law today that determines what conduct merits punishment. That all-important determination is punted to politically accountable prosecutors, who are unique in our system in having enormous, virtually unchecked power over the lives, liberty, and property of citizens. Once prosecutors have decided to pursue criminal charges, it is overwhelmingly likely that the accused will be convicted – so much so, in fact, that the vast majority of persons accused of crimes (well in excess of ninety percent) plead guilty rather than take their chances at trial. The small share who do insist on holding the state to its burden of proof almost always end up convicted anyway, receiving worse sentences than they would have had they waived their rights and pled guilty on the prosecutor’s terms.
The end result of this thoroughly politicized criminal justice system is what can only be regarded as a national embarrassment: America’s bloated, racially skewed prison population. In what is supposedly the freest country in history, millions upon millions are behind bars. The nation’s rate of imprisonment today far outstrips the rate at which Americans were imprisoned at prior points in history, and the imprisonment rate of all European nations including Russia and the former Soviet republics.
Worse yet, the greater rate of imprisonment has fallen most heavily on black Americans. Stuntz reports that the black community has seen a seven-fold increase since the 1970s. While white men are imprisoned at a historically high rate of almost five hundred per 100,000, the rate for black men is six times higher (3,000 per 100,000). Blacks account for roughly thirteen percent of the population, but fully half of the nation’s prison population. Even taking relative offense rates into account, blacks are significantly overrepresented among the inmate population, with all the attendant problems that creates for black family structures and socioeconomic progress in black communities.
The supposed “War on Drugs” accounts for much – but not all – of the growing number of Americans (and especially black Americans) who are imprisoned. Stuntz says: “If all drug cases were removed from the statistics, America’s imprisonment rate would still have quadrupled over the past thirty-five years.” The culprit for the skyrocketing prison population, he claims, is prosecutors. As he puts it, “[m]ore inmates live in state and federal penitentiaries than in the past chiefly because prosecutors have charged and convicted more criminal defendants than in the past.” In short, official discretion – that is to say, unchecked prosecutorial power to use sprawling criminal codes as they see fit, against whomever they wish – has led to unprecedented increases in the number of Americans who are deprived of even the most basic liberties.
According to Stuntz, this nightmare was not always true. For much of our history, criminal punishment was imposed sparingly, as a necessary evil rather than a commodity to be maximized. As such, criminal codes had a much narrower scope. They generally were restricted to “core” crimes, such as murder, manslaughter, rape, burglary, and theft – serious wrongs that are punished everywhere. In such a regime, anyone who committed a crime was blameworthy. It was not prosecutors who determined who went to jail but rather the judicial process – and specifically jurors, who functioned as potential nullifiers, not just “lie detectors” – because criminal trials were far more common than in today’s “Let’s Make a Deal” regime of widespread plea bargaining. Finally, even persons convicted of crimes were treated humanely, which explains why rates of imprisonment were much lower, and sentences more lenient, than they presently are.
Stuntz considers, but rejects, the notion that increasing crime rates explain the rise in the prison population. It would be logical for levels of punishment to track trends in crime rates, but that is not what has happened. Indeed, punishment levels have swung arbitrarily from extremes of lenity to severity, sometimes in inverse relation to crime rates. He illustrates the point by comparing the 1950s to the 1990s. During the 1950s, crime rates wererising, yet America’s inmate population was shrinking dramatically. Conversely, the U.S. prison population ballooned in the 1990s at the very time that crime rates were at lows not seen in decades. Thus, Stuntz concludes, crime rates do not explain why punishment rates in the U.S. are at all-time highs.
If crime rates do not explain the extreme severity in American punishment, then what does?
Stuntz gives two provocative answers: a failure of localism and democracy, and the “proceduralization” of criminal justice.
The swing toward extreme punitiveness would not have been possible without the centralization of power over the criminal law. Until the 20th century, criminal law enforcement was decentralized. Other than by defining a small number of vaguely defined crimes aimed at seriously wrongful behavior, legislatures traditionally played no role in dictating case outcomes. It was ultimately left to juries to decide whether the defendant’s conduct merited punishment.
This had changed by the 20th century. Legislatures began passing criminal laws at a greater rate – and with far greater specificity. The greater specificity simultaneously made it easy to prove guilt and sharply limited available defenses. Courts did their part by wresting from juries the power to decide what the law is. Together, these developments meant that agents of the state – legislators, prosecutors, and judges – decided what should be a crime, and local juries were bound by their determinations in that regard. All juries decided, in effect, was whether the witnesses were lying or not.
Centralized state actors also controlled local law enforcement through their funding decisions. As prosecutors charged more suspects and federal courts imposed more procedural mandates on states, law enforcement resources were stretched to the breaking point. Prosecutors responded by relying even more heavily on plea bargaining to allow them to convict greater numbers of defendants with minimal effort. The lawyers assigned to represent indigent defendants (and most defendants are too poor to hire their own attorney) faced incalculably greater resource constraints, giving them incentives to join prosecutors in pressuring their clients (innocent or not) to plead guilty.
Moreover, state legislatures gave localities strong – and rather perverse – incentives to prefer punishment to policing. States subsidize punishment by paying to house prisoners, but local governments typically bear the cost of policing. This has given localities the incentive to underinvest in policing (for which they bear the cost) and to rely too heavily on imprisonment (for which states bear the cost). Little wonder, then, that crime rates and imprisonment rates remain high: public safety has taken a back seat to punishment maximization.
During the 1950s and 1960s, a reformist Supreme Court decided to use the federal Constitution to improve state criminal justice. Unfortunately, the Court made three fatal errors.
First, the Court chose to regulate criminal procedure (the process the state must follow in investigating and adjudicating crimes) rather than substance (what can and cannot permissibly be punished). This “proceduralization” left unaddressed major sources of unfairness in modern criminal justice, such as the drug enforcement that has turned inner cities into occupied territories and decimated minority communities with sky-high rates of imprisonment. It also gave prosecutors even greater incentives to force defendants to plead guilty. Making criminal trials more elaborate, as the Supreme Court did, may have made them more reliable, but it definitely made them rare.
Second, in its focus on procedural justice, the Court looked to the federal Bill of Rights (the first ten constitutional amendments). This move would have made sense if the Bill of Rights defined the components of a fair criminal justice system, but they did not. After all, the Bill of Rights says nothing about racial justice, and professional police forces and full-time prosecutor offices did not exist until almost a century later.
Third, the Supreme Court’s reform efforts provoked a backlash from voters. Crime was rising during the 1950s and 1960s, and so politicians could be expected to attack decisions that “coddled criminals” and “handcuffed the police.” Stuntz’s “Exhibit A” is Miranda v. Arizona, which seemed to spell the end of confessions as a way of solving crimes. Miranda and similarly controversial decisions made crime highly salient political issues, especially in national elections. Ever since, Democrats and Republicans have been involved in a “bidding” war to outdo each other in the effort to convince suburbanites that they are “toughest” on crime. The infamous law requiring federal courts to treat an ounce of “crack” cocaine as the equivalent of one hundred grams of powder cocaine at sentencing is a case in point.
If the centralization of power over the criminal law and the proceduralization of criminal justice have produced the extreme severity of American criminal law, then the answer, Stuntz claims, is to reverse those trends.
First, the localism in law enforcement that prevailed at the time of the Founding should be restored. Federal criminal law should be reserved for immigration and other areas within the exclusive control of the federal government. States should end their perverse subsidy of punishment over policing. By subsidizing policing instead of imprisonment, states will give localities healthy incentives to keep the public safe – and to do so through a means (namely, proactive community policing) that will prevent crime without creating inordinately large prison populations. In the same vein, legislatures should also reduce the penalties for crime.
Second, courts should insist on justice rather than mere compliance with the Bill of Rights. This would mean judges paying far greater attention to racial discrimination claims (especially in the context of the death penalty and drug enforcement). It would also require courts to play a more active role in policing the substantive choices that go into the substantive criminal law.
Courts should aim for simpler trial procedures attuned to the modern realities of today’s criminal justice system. More efficient trial procedures should result in less prosecutorial power to coerce guilty pleas, especially if conjoined, as Stuntz advocates, with increased funding for indigent defense representation. If criminal trials are cheaper and the lawyers who represent the poor are better able to advocate for their clients, prosecutors and defense attorneys will not be so determined to avoid trials, which will translate into less plea bargaining and more trials. More trials means more power in the hands of local juries, not prosecutors or other agents of the state.
“Jury nullification” should no longer be treated as a bad word. When confronted with what they regard as unfairness, modern jurors should be allowed to acquit regardless of the legislative definition of the crime and the evidence at trial, as were their 18th and 19th century forebears. The reinvigorated role of juries will have the salutary effect of infusing the virtues of mercy and localism into the adjudicative process.
Stuntz’s critique is a powerful one. At bottom, he challenges the notion that we face an inherent tradeoff between effective crime control and fairness to suspects. In fact, we have the worst of both worlds: an unfair criminal justice system, an enormous prison population, and high crime rates. It is only by reforming the system that we can hope to reduce crime and maximize liberty and justice for all – and that, we should keep in mind, is the ultimate goal of a criminal justice system, and of a free society, worthy of the name.
 William J. Stuntz, The Collapse of American Criminal Justice 5 (Harv. Univ. Press 2011) (hereinafter, “Collapse”).
 Id. at 47.