Punitive and Inhumane
As one of the nation’s leading criminal law scholars, who taught for over three decades at Virginia and later Harvard Law School, William Stuntz devoted his career to writing, critiquing and teaching about our criminal justice system. Sadly, Stuntz died from illness last year at the age of 53. Fortunately, however, he has bequeathed to us his culminating presentation of his scholarship, The Collapse of American Criminal Justice, to which, had he wished, he could well have added the subtitle “and How It All Fell on the Heads of the Urban Poor.”
Stuntz points to powerful evidence that the criminal justice system “unraveled” in the latter half of the 20th century. We hold in our prison cells a larger percentage of our population than any other Western country does in theirs. Our sentences are excessively harsh. Ninety-five percent of the time, convictions result from quick plea bargains between lawyers rather than the “trial by jury” proudly enshrined in the Sixth Amendment. African-Americans are incarcerated in gross disproportion to their number in society. But despite “the state’s seemingly insatiable desire to punish young black men,” crime continues to be a serious problem, particularly in the poor and black urban areas. “Evidently, the criminal justice system is doing none of its jobs well: producing justice, avoiding discrimination, protecting those who most need the law’s protection, keeping crime in check while maintaining reasonable limits on punishment.”
Stuntz’s first project is to explain how our system of criminal justice became the most punitive and inhumane the United States has ever had, with its destructive effects disproportionately striking inner-city zones.
Part of the explanation he finds in the unequal application of the criminal law. We have vested police and prosecutors with overly broad discretionary powers. This creates a system that often works very differently in poor urban neighborhoods than in wealthy areas. The equal protection clause, as presently interpreted, is a mirage. When it comes to preventing discriminatory policing or prosecution, Supreme Court decisions have rendered the clause meaningless by requiring proof of discriminatory motive, while effectively blocking access to the proof needed. Consequently, official authorities have “unfettered discretion to choose when to enforce the law and when to ignore it.”
The structure of recent criminal statutes significantly contributes to today’s severely punitive system. Largely in response to public fears of increasing crime in the later 1970s and ‘80s, legislators became “tough on crime,” enacting draconian maximum prison sentences, mandatory minimum sentences and a profusion of statutes with finely tuned elements that make it is easy to prove almost any defendant guilty, at least of some degree of violation. As a result, prosecutors can easily extract guilty pleas from defendants who would rather accept some prison sentence than risk a conviction at trial with a still more punitive outcome. Predictably, the prison population swells.
The proliferation of harsh legislation, arbitrarily enforced by police and prosecutors making virtually unreviewable discretionary decisions, raises deeper questions for Stuntz. Why were legislators not checked in their passing of laws so destructive to inner-city communities? Why were official authorities not stopped from using their discretionary powers so punitively? Because, says Stuntz, the people most affected by criminal laws, whether those persons are defendants or victims or whole neighborhoods, are not the people who make the laws.
A decision about how much one of their sons or daughters or neighbors should be charged, found guilty or punished is no longer mediated through members of the local community, either as voters or jurors. They have no real voice in the making or the application of the laws. Those who do have a voice are not likely to be affected by the laws they make. Because of the growth of large cities and suburbs and legislative district-drawing, prosecutors are often elected by persons whose lives are untouched by the decisions the prosecutors make. The penalties of harsher legislation are visited upon the heads of others.
“It was not always so.” To know when and why the system was better, one must follow Stuntz deep into the history of criminal justice since the founding of the nation. His view is panoptic. He scrutinizes punishment theories, immigration trends, policing styles, prison populations, rising and falling crime rates, lynch law, acquittal and conviction rates, many constitutional decisions, the cost of operating the system and plenty of political dynamics. Stuntz concludes that “for much of the nation’s past the system worked reasonably well, at least by comparison with the different kind of democracy that reigns over that system today.” When the democracy was local, it could modulate and moderate outcomes.
Given Stuntz’s sharp sensitivity to any kind of unfairness in the justice system, it is surprising to read his singular, if not odd, view of the Warren court’s development of procedural protections for accused persons. The court’s decisions, he believes, “seemed designed to protect the guiltiest suspects and defendants.” He blames the court’s articulation of defendants’ rights (or is it the rights themselves?) for perversely causing a political backlash that introduced harsher anti-crime measures and impeded reform. One wishes, at least, that he had written more to explain his views on this matter.
Stuntz believes we have a chance, though only a slim one, of eliminating the discrimination, excess and injustice that characterize our broken system. We might succeed if we reintroduce local democratic control over the whole system. The making of laws, the judging of guilt and the severity of punishment must be put back into the hands of the local communities that the criminal law directly affects. Prosecutors and police must be governed locally. The Supreme Court must breathe new life into the dormant equal protection clause so that it can fulfill its potential for ridding the system of racial discrimination.
Stuntz’s book makes an eloquent, deeply reflective and historically well-rooted plea for a return to humane, fair and effective criminal justice. Every legislator, politician, judge, attorney, law student and lay citizen interested in understanding and improving our system should study this book. It will very deservedly be a centerpiece for any future discussion of criminal justice reform.
This article also appeared in print, under the headline “Punitive and Inhumane,” in the July 16, 2012, issue.
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