The Collapse of American Criminal Justice.

• Author: Schulhofer, Stephen J.
• Position: Book review

THE COLLAPSE OF AMERICAN CRIMINAL JUSTICE. By William J. Stuntz. Cambridge and London: Harvard University Press. 2011. Pp. viii, 312. $35.

INTRODUCTION

Universally admired, and viewed with great affection, even love, by all who knew him, Harvard law professor Bill Stuntz (1) died in March 2011 at the age of fifty-two, after a long, courageous battle with debilitating back pain and then insurmountable cancer. In a career that deserved to be much longer, Stuntz produced dozens of major articles on criminal law and procedure. He was a leader in carrying forward the work of scholars who had analyzed criminal justice through the lens of economic analysis, (2) and he added his own distinctive dimension by insisting on the importance of political incentives, with their often-perverse effects. (3) Ever the contrarian, Stuntz excelled at challenging conventional wisdom, usually from a counterintuitive direction. He often succeeded in shaking an accepted consensus; even readers who remained skeptical were forced to reexamine their fundamental assumptions about how the criminal justice system works.

The Collapse of American Criminal Justice ("The Collapse") sums up much of Stuntz's most important work. It brilliantly describes the deplorable injustices of contemporary criminal justice--most notably our massive levels of incarceration and shockingly disproportionate rates of imprisonment for minorities. And, in keeping with the style for which Stuntz became famous, it proposes startlingly original solutions.

Stuntz argues that much of the responsibility for our predicament lies, astonishingly, with the very reforms that were intended to promote greater fairness and equality in criminal justice--police professionalism, substantive criminal law revision, and the Warren Court revolution in criminal procedure. In Stuntz's account, the professionalization of policing prevented local urban districts from using less punitive, community-based methods of social control. The Warren Court's due process revolution gave defense attorneys less reason to focus on questions of genuine innocence and gave prosecutors stronger incentives to leverage guilty pleas. Legislatures compensated for new difficulties in prosecution by starving the indigent defense system, enacting broad, easily proved offenses, and ramping up the severity of punishment. The upshot was less attention to factual guilt; greater prosecutorial control over who gets punished (and how much); and even greater disparity between rich and poor, between whites and blacks. All this is laid at the door of police professionalism, criminal justice expertise, and civil liberties landmarks like Mapp (4) and Miranda. (5) It is a blistering indictment.

Stuntz's account presents a challenge that no one concerned about constitutional rights or social justice can ignore. The Collapse is not merely a warning to proceed cautiously. It is an urgent plea to make an immediate U-turn--to de-emphasize expertise and judicial safeguards and to return instead to democratic control through small political units. Beyond its criminal justice implications, this argument has broad significance because it resonates strongly with important preferences in contemporary policy analysis and academic theory--specifically, the public choice approach to assessing legal change and the school of constitutional thought holding that long-term reform comes only through democratic politics rather than courts.

For these reasons, the argument warrants an especially thorough assessment. The poor and the vulnerable desperately need protection from state power and the ignoble instincts that can emerge from majoritarian politics. If Stuntz's claims are flawed, yet those who seek to protect the disadvantaged lose faith in expertise and the courts because of the doubts that he raises, the already-fragile safeguards of our criminal justice system and the social support that those safeguards depend on will be left even weaker than they already are.

Fortunately, a considerable body of material is available to respond to the book's challenge. This Review takes up that assignment. Part I summarizes Stuntz's argument. Part II turns to the book's historical claim--that before the 1960s, the justice system outside the South worked reasonably well. The evidence, taken as a whole, shows a very different picture. To be sure, crime rates and imprisonment rates were low by today's standards, but in other respects the pre- 1960 systems had grave shortcomings.

Part III turns to the book's two causal arguments--that the positive features that prevailed before 1960 (low rates of crime and imprisonment) were due in part to informality and local political control; and that these advantages evaporated partly because of professionalization, expanded procedural safeguards, and the erosion of local democracy. These claims too are at odds with the great weight of the evidence. The worst defects in criminal justice before 1960 flowed directly from the localized politics and weak procedural protections that Stuntz seeks to restore. There is no basis for giving those mechanisms any credit for that era's low rates of crime and imprisonment. Rather, those advantages flowed from social conditions that changed with astonishing speed in the 1960s and that are unlikely ever to return. Properly understood, the history suggests that restoring political power to local neighborhoods cannot help cure--and likely would aggravate-the ills of contemporary criminal justice.

Part IV considers the book's proposals for concrete reforms. Because its principal theme--the value of localized democracy--appears in other currents of contemporary scholarship, (6) steps to return some decision-making authority to the local level could have merit whether or not the book's history withstands scrutiny. But surprisingly (given the analysis that dominates the first three-quarters of the book), The Collapse suggests few steps to reempower neighborhoods. Instead, while Stuntz continues to insist that decisions like Mapp and Miranda were unwise and would best be overturned, his own proposals for reform envisage a dramatically expanded judicial role in protecting minorities and the poor. Indirectly, but tellingly, the book's remedial proposals reinforce the conclusion that emerges from assessing its historical analysis: local political control of the sort America had before 1960 is no longer a viable option. Rather, constitutional limits on law enforcement, vigilantly enforced by courts, remain indispensable elements in the institutional design of a democratic society.

1. THE THESIS OF THE COLLAPSE

   A vivid comparison frames Stuntz's thesis. On one side of the ledger, contemporary criminal justice is a mess: prisons are bursting, sanctions are shockingly unequal, outcomes are almost entirely determined by prosecutors' unchecked discretion, and crime rates remain stubbornly high (pp. 1-2). Yet, Stuntz argues, "It was not always so" (p. 2). For roughly sixty years, from the 1890s through the 1950s, American states outside the South "punished sparingly, mostly avoided the worst forms of discrimination, [and] controlled crime effectively.... [C]riminal justice worked" (p. 2). What accounts for this shift? What happened in the 1960s to make that period a turning point? The signal legal events of that era, of course, were the civil rights and due process "revolutions." But few would expect that those developments, designed to enhance the decency of American institutions, made our society more punitive and more discriminatory. Stuntz, however, argues that those reforms had calamitous consequences--not just for "law and order" but for equality and fairness (Chapter Eight). Although he briefly acknowledges that other forces contributed to contemporary ills, Stuntz focuses primarily on the unexpected political and legal dynamics that, he argues, were unleashed by efforts to improve criminal procedure and substantive criminal law.

   At the core of The Collapse is Stuntz's argument that the "experts" who perpetrated these reforms--police professionals and the Warren Court for criminal procedure; academics and the American Law Institute for substantive law--bear much of the responsibility for the collapse of practices that were largely successful for more than half a century: "[P]rofessionals and experts changed the justice system almost entirely for the worse" (p. 194).

   Why did reforms grounded in expertise and good intentions backfire so catastrophically? Although Stuntz brings diverse perspectives and a wealth of data to his argument, his principal analytic device is that of political economy: he works from the incentives of self-interested legal and political actors to demonstrate how we can expect each new development to percolate through multilayered institutions.

   Consider police professionalism--formal training, civil service protection for officers, and a hierarchical chain of command--as a replacement for neighborhood control of precinct captains and cops on the beat. The costs of crime and the effects of punishment on wrongdoers and their families are concentrated, Stuntz writes, in the local communities where victims and perpetrators typically live in close proximity. (7) When prosecutors, police chiefs, and subordinate officers were political actors closely attuned to neighborhood priorities, the affected communities had to balance desires for vengeance and safety against needs for fairness to offenders and suspects. Now that professionalization has taken hold, however, criminal justice policy is mostly set by bureaucrats responsible to more distant constituencies, largely affluent and white, whose members can act on their desires for harsh punishment without bearing its costs (pp. 31-39).

   Similarly, consider through the lens of political economy the effect of new procedural rights. Attorneys have only so many hours and resources available to defend their clients; meanwhile...