William J. Stuntz did not live to see his final work, The Collapse of American Criminal Justice, in print; the famed legal scholar and Harvard Law professor lost his battle with cancer mere months before the book was published in the fall of 2011. The magnitude of that loss can only be appreciated upon finishing his final work, which deftly combines an historical account of criminal justice in America with the legal philosophy that shaped it, and in such a way that a total layman would have no trouble following his arguments. His charge is a familiar one: the American criminal justice system is too severe, imprisoning too many people – and particularly too many black men – for too long. The numbers are striking: in 1910, for example, the American murder rate per 100,000 people was 8, and the incarceration rate for those same 100,000 people was 75. Eight people dead and 75 in prison for every 100,000 citizens. In 2003, the murder rate per 100,000 had fallen to 6, but the incarceration rate had ballooned to an incredible 482 per 100,000. What changed, and why did the incarceration rate so drastically increase even as the murder rate fell?
His first challenge is historical: in the 1960s and early 1970s, the American criminal justice system was notoriously lenient – more so, in fact, than any European system today – and crime rates soared. Major cities, among them Washington and New York, were held hostage by crime, which quickly became one of the nation’s leading political issues. The response to this extreme lenity, Stuntz argues, was an extreme severity, one that helped curtail the disaster of American crime but at the expense of creating a prison population without equal in human history. Is this simply the price America must pay for the rule of law? If the only measure of a justice system is its ability to punish wrongdoing, then America’s laws, prosecutors and courts are undeniably efficient. But there is a price to this system’s severity. Prisons are costly, and communities that disproportionately suffer the wrath of severe criminal justice – communities like America’s black neighborhoods – lose faith that the system exists for their benefit rather than their punishment. Worse, still, the incarceration of huge numbers of their men only exacerbates the existing social conditions that made those communities vulnerable to crime in the first place. There is a better way of handling crime, Stuntz argues, one that controls crime without the severe cost of mass incarceration, and he makes his case by contrasting two great waves of immigration – of Irish and Italians into America, and of freed Southern blacks into the Northern States.
Like the Irish and the Italian immigrants, free blacks in the American north committed crime at a higher rate than the native population, but unlike these European immigrants, the black migrants had no control over the justice system. In Irish communities, for example, Irish voters elected Irish judges and prosecutors, and Irish men and women filled jury boxes. Racism denied black defendants the benefit of this community justice, as white jurors, judges and prosecutors – in an era of massive prejudice – decided their fates. And even when American racism was on the decline, even as black Americans gained the right to vote and substantive legal reform designed to affirm their rights as citizens, the creation of suburbia produced a similar result, as white suburbanites outnumbered the black urban population where crime was and remains concentrated. Even if we generously assume that prejudice has been entirely banished from the hearts of Americans, there is a fundamental obstacle to the effective administration of justice. As Stuntz puts it: “Criminal law enforcement is redistributive; its benefits go disproportionately to the poor, but are paid for disproportionately by the rich.” If a given city or state has a large population who live free from crime, and a smaller, concentrated population who suffer immensely from crime, how likely is it that increased funding for law enforcement will be a winning political issue?
But in present day America, Stuntz argues, these developments pale in comparison to the damage done to the legal system itself. When American politicians and policymakers were faced with the mounting urban violence produced by the drug trade, they turned to strategies used in the early 20th century during the fight against organized crime. If you could not ultimately convict Al Capone for murder and racketeering, well, you could send him to jail for 11 years for tax evasion. Similarly, if you cannot build a case against the local drug gang for murderous behavior, you can prosecute them for a drug crime. “Everything about the war on drugs and the politics associated with it makes sense only on the assumption that drugs were not the war’s primary target,” Stuntz writes; “Violence was.”
The link between drug enforcement and violent crime also explains the absence of large-scale political opposition to contemporary drug laws, despite the draconian punishments those laws impose on offenders. Much milder punishments for other vices prompted much more political opposition in the late nineteenth and early twentieth centuries. That earlier age was more moralist than ours: early twentieth-century Americans criminalized all forms of extramarital sex; twenty-first-century Americans make adult consensual sex a constitutional right. Yet Prohibition proved politically unstable, while the drug war is politically untouchable. If drug enforcement isn’t a response to criminal violence, these political facts seem inexplicable.
Stuntz traces this proxy punishment to the Mann Act of 1910: its stated aim was to criminalize interstate prostitution but, in practice, it was used as a catch-all law against “immoral behavior,” from adultery to out-of-wedlock sex. And, unlike during Prohibition, there was no robust public debate about the ethics of drug law. So, for example, while no laws were ever passed criminalizing the possession of alcohol or the distribution of alcohol to guests in one’s home, the drug crusaders criminalized these rather benign transgressions. Worse, still: if drug crimes are to serve as substitutes for the prosecution of more violent crimes, the sentencing had to get more severe.
Stuntz notes three major changes to the practice of criminal law: “criminal liability rules grew broader, the number of overlapping criminal offenses mushroomed, and the definition of crimes grew more specific.” Increased liability broadens the definition of criminal behavior; more specific crime definitions, paradoxically, make it easier for prosecutors to obtain a guilty plea, as they limit the maneuverability of defense attorneys; and as criminal offenses are allowed to overlap, piling on potential prison time, defendants are more likely to opt for a plea bargain than to gamble in court. “Capital punishment’s largest consequence,” writes Stuntz, “is not the few dozen executions that happen each year in the United States but the many life sentences imposed after plea bargains designed to avoid death sentences.” The result of these changes is a justice system that is quick to punish but slow to go to trial, and trials – not dealings between motivated prosecutors and less motivated public defenders – are where justice should be dispensed. But trials are costly, in time and money, which presents yet another incentive to skip them altogether:
Prisoners might be expensive to incarcerate, but they were cheap to arrest and convict. Arrests per police officer rose by one-third between 1976 and 1989. Felony prosecutions per prosecutor doubled between 1974 and 1990. Per-case spending on lawyers for indigent defendants fell by half between 1979 and 1990. These data all point to the same conclusion: as imprisonment ramped up through the 1970s and 1980s, America’s criminal justice system grew much more efficient – fewer personnel were needed to send more inmates to the nation’s prisons and jails.
Prior to the 1960s, something like one fourth of all felony charges led to a trial. “Today, the analogous figure is one-twentieth.” This is efficiency, to be sure, but is it justice?
Stuntz has a familiar solution: more cops on the ground. It might be counterintuitive, but an increased police presence, particularly in crime-ridden neighborhoods, actually reduces the number of criminal convictions. As they say, an ounce of prevention is worth a pound of cure, and effective policing – defined by a cooperative rather than combative relationship between police and the citizens they serve – is an effective and vital deterrent. But good police work is expensive, and cash-strapped local governments have found it cheaper to invest in prisons than police. Simple, says Stuntz: the federal government should further subsidize the cost of police, and local governments should be made to contribute a larger share to prison expenses. Such a transition would reverse the perverse incentives currently in place that make it easier for a community to send its offenders to jail rather than protect its citizens from crime in the first place.
And just as policy must shift, so too must the legal philosophy that has prioritized the procedure of law over the substantive nature of the law. Stuntz contrasts America’s Bill of Rights with France’s Declaration of the Rights of Man and of the Citizen: there is nothing in the American document to equal the Declaration’s fifth article, which states, “The law has the right to forbid only actions harmful to society. Anything which is not forbidden by the law cannot be impeded, and no one can be constrained to do what it does not order.” How much needless suffering might be avoided in America if such a clause were adopted?
It is perhaps too hopeful to believe that all of these reforms will be enacted, or even publicly discussed – Stuntz himself laments the lack of political will that the drop in crime has produced – but the growing discontent with the drug war, and the move to legalize marijuana, might be signs that change is on the horizon. If progress is ever made, and if the severity of America’s criminal justice system is ever curbed, Stuntz will deserve much of the credit.