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The Collapse of American Criminal Justice

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Review

“The capstone to the career of one of the most influential legal scholars of the past generation.”―Lincoln Caplan, New York Times“The Collapse of American Criminal Justice is a searching―and profoundly disturbing―examination of American criminal law in action. William Stuntz's posthumous study establishes that our main achievement has been the incarceration of millions, and in the process we have given short shrift to the minimal objectives of a democratic legal order―fairness and equality. This is a masterful work.”―Louis H. Pollak, Senior Judge of the United States District Court for the Eastern District of Pennsylvania“Bill Stuntz brought humanity, passion, and a broad intellectual vision to the study of criminal justice. His book tells the compelling story of the injustices created by the rise of discretionary power, the resurgence of discrimination and the impoverishment of local democracy. His analysis has implications beyond the shores of the USA; and helps us to see where a more hopeful future might lie.”―Nicola Lacey, All Souls College, Oxford“Bill Stuntz was our leading scholar of criminal procedure. Stuntz argues that much of what we think about American criminal justice is wrong. The system is neither too lenient nor too punitive, but too prone to both extremes, and the extremism is caused by too little democracy. Sweeping, learned, and bracingly original, Stuntz's crowning achievement is a wonderful book.”―David Alan Sklansky, Boalt Hall School of Law, University of California, Berkeley“This is a brilliant book by a supremely decent man. A great scholarly mind from the world of small towns, Stuntz has unique and profound insights into the perverse effects of centralized control of the criminal process of modern America. His vision of a better, more humane, more local justice offers more hope than the work of any scholar I know.”―James Q. Whitman, Yale Law School“Smart and surprisingly provocative, The Collapse of American Criminal Justice is an instant classic. Stuntz sets aside the conventional wisdom and offers fresh and paradigm shifting analysis of crime, punishment, and politics. Every prosecutor, defense attorney, judge, and law maker in the country should take Stuntz's powerful insights to heart. The Collapse of American Criminal Justice is indeed the achievement of a lifetime.”―Paul Butler, author of Let's Get Free: A Hip-Hop Theory of Justice“The Collapse of American Criminal Justice [is] a blistering critique of the "arbitrary, discriminatory, and punitive beast" that our nation's criminal justice system has become...Stuntz, who passed away earlier this year, was the Henry J. Friendly professor of law at Harvard University and one of the nation's leading scholars of criminal law and procedure. His work was well-known for uncovering counterintuitive paradoxes at the heart of the American justice system, and Collapse is filled with them...Its diagnosis of our criminal justice system demands attention. Even more so its suggested remedies....Stuntz himself recognized that his suggestions would prove a hard sell in today's political climate. He prudently opted for hope rather than optimism. But politicians, and the voters that elect them, would be wise to consider Stuntz's account seriously, because what to do about our deeply flawed criminal justice system―well, that is a puzzle worth trying to solve.”―Jay Wexler, Boston Globe“The book is eminently readable and merits careful attention because it accurately describes the twin problems that pervade American criminal justice today―its overall severity and its disparate treatment of African-Americans. The book contains a wealth of overlooked or forgotten historical data, perceptive commentary on the changes in our administration of criminal justice over the years, and suggestions for improvement...Virtually everything that Professor Stuntz has written is thought-provoking and constructive...Well worth reading.”―Justice John Paul Stevens, New York Review of Books“It's a fascinating, passionate, compassionate, often brilliant book...It's a work that deserves to have a significant influence on American criminal-justice thinkers from across the political spectrum...Stuntz documents serious problems, describes how they deepened, and points the way towards improvement. His book deserves a wide readership.”―Eli Lehrer, National Review“How has the American criminal-justice system become one of the most punitive in the world without providing a corresponding level of public safety? In The Collapse of American Criminal Justice, William J. Stuntz...offers a provocative big-picture answer...The overarching themes of The Collapse of American Criminal Justice deserve wide discussion, and the book as a whole can be rightly seen as the capstone to a distinguished legal career. Americans may debate whether our criminal-justice system has truly collapsed, but few would argue that it can't be improved.”―Paul G. Cassell, Wall Street Journal

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About the Author

William J. Stuntz was Henry J. Friendly Professor of Law at Harvard University.

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Product details

Paperback: 432 pages

Publisher: Belknap Press (October 7, 2013)

Language: English

ISBN-10: 9780674725874

ISBN-13: 978-0674725874

ASIN: 0674725875

Product Dimensions:

6.1 x 1.2 x 9 inches

Shipping Weight: 1 pounds (View shipping rates and policies)

Average Customer Review:

4.4 out of 5 stars

29 customer reviews

Amazon Best Sellers Rank:

#378,410 in Books (See Top 100 in Books)

This book made me more uncomfortable than any book I have read in at least the past three years. That is an enormous testament to its brilliance and importance. Stuntz claims that we have created a criminal justice system "both harsh and ineffective." If you accept as a basic principle that the criminal justice system exists to minimize the harm caused to all Americans, both criminals and non-criminals, then this is a damning indictment indeed.Criticism of the criminal justice system is the rule, not the exception, in the academy, but the late Stuntz was that rarest of creatures--the openly-evangelical Christian academic. He approaches the issue from a different perspective than usual. He also possessed an exceptional clarity of thinking and discipline of thought.The Collapse of American Criminal Justice extensively maps the broad sweep of the history of criminal law and crime in America. Particular emphasis is given to regional trends and the differences therein, from the generally effective (and fair and just) system in New England to southern lynching to frontier justice in the west. His work here will be of great interest to any student of David Hackett Fischer's Albion's Seed. More relevant to modern criminal justice, I think, is his equal emphasis on the rise of procedure. "[T]he 1910 version of the Cyclopedia of Law and Practice devotes only fifteen pages to the issue of search and seizure, but in the 1932 version it runs 114 pages." Stuntz doesn't see this as a good thing, he accuses the Supreme Court of making "the constitutional law of criminal justice into something narrower and less useful: a constitutional law of criminal procedure." The Warren Court doubtless acted with good intent, but "in criminal justice as elsewhere, unintended consequences often swamp the intended kind."Why is this so? I'll explain, but first let me take a step back. To many a student of the law, including this reviewer (one with no affection for the Warren Court), our constitutional criminal procedure is a bedrock of the American Way, even liberal democracy itself. Stuntz argues though--forcefully--that the procedural protections were a product of chance. He traces them to a handful of high profile cases in the dusk of colonial America. Yes, so, weren't most rights enshrined in the Bill of Rights and the original Constitution in response to narrow violations of rights under British rule? They were, but Stuntz points out that each case can be seen as a matter of protecting Free Speech--a rather novel and dangerous concept at the time--instead of a disparate collection of procedural rights for criminals. Does Stuntz offer no protection for the accused, then? No, but he points to substantive, not procedural, protections as optimal, referencing the protection of substantive rights in the Declaration of the Rights of Man and of the Citizen, suggesting that our procedurally oriented protections were a matter of chance (fat lot of good the former did many French during their own revolution).Returning to my earlier point, the rise of procedure during the Warren Court (and, importantly, well before) is important because it did not exist in a vacuum. Contrary to popular wisdom, the accused had real protection before said rise. Stuntz points to Due Process and especially Equal Protection (the earlier forms of which have really lost favor). More important, I think, was the protection offered by a common law tradition firmly rooted in a requirement of the requisite mens rea, or "guilty mind."Things changed. Most of us are probably familiar (broadly speaking) with Prohibition, begun with the 18th Amendment and ended with the 21st. It's widely held as one of our great failures. John Hart Ely mocked it as a misguided attempt at crudely touching substantive law with a constitutional system better suited for procedure (Ely and Stuntz would have disagreed on much). Stuntz sees it as a relic of history we should point to with pride. Not because banning alcohol is a good idea; it's a terrible idea. But because Prohibition was honest. The People wanted to do something. That something, questionably, couldn't be done constitutionally. They passed an amendment to the Constitution through the prescribed means. It didn't work. They again amended the Constitution; again it was through the prescribed means. The People perhaps learned something about the inherent game of whack-a-mole that is vice prohibition. Would be prohibitionists learned another lesson. We saw many more prohibition movements: against opium, against prostitution, against drugs in general. None were pursued through the channels Prohibition was despite their similar questionable constitutionality. Quite the opposite. What was more, while Prohibition never outlawed the possession itself of alcohol, the new prohibitions frequently did so.Modern procedural protections started to pop up around this time as well, culminating during the era of the Warren Court. The timing belies the notion that these protections are rooted in the Constitution. In context, they look even more like accidents of history. They end up serving the rich and recidivists rather than the most vulnerable. And who suffers the most when the inevitable backlash comes? The poor, the first-time offender, the innocent (as any good defense lawyer will tell you, the innocent defendant faces the distinct disadvantage that they don't know what really happened). The Nixon revolution brings non-Originalist jurors bent toward law-and-order, but the law-and-order is long since a matter of faith by the time the next wave of Originalist arrives. Meanwhile, facing a crime wave, Democrats are no more interested in being "soft on crime" than Republicans are. Substantive protections continue to wither way: better to game the system than to lack a guilty mind.And roughly there are depressing story rests. Crime has been in a decades-long freefall, but incarceration rates remain astronomical. The costs eat away at the public fisc, and locking away so much of a generation of black, male youth likely does more harm to black America than any number of public programs and anti-discrimination efforts could outweigh. There is, however, reason for hope. The taint of being soft on crime remains in theory, but crime has largely left the public consciousness, public ignorance of how much crime rates have dropped notwithstanding. Both Democrats and, probably better insulated politically, Republicans have a new freedom to act. It is with legislators that Stuntz pins his hopes. I think he's overly optimistic; a mass shooting or one other high-profile incident can change so much. On the other hand, I think he's far too pessimistic on reform through the judiciary. Judges on the Left have always had sympathies with the accused and are well insulated politically. The Originalist argument--and there is a strong one by Stuntz's own narrative, although he doesn't admit it--is a powerful one for judges on the Right, similarly politically insulated from the usual charges of RINOism.There is so much more to say, but this review has already gone on far too long. Much worth reading and revolutionary has been omitted or only touched on in passing. I read this book quite some time ago, putting the review off for another time. Even all these months later, though, the heart (if not all the details, I fear a mistake lurks somewhere above) bursts forth with all available vehemence. It's changed my thinking, and thoroughly so. What more could you ask of a book?

This book is a reminder of what well-meaning people could do if they worked together towards a common goal, and a rueful reminder of what happens in our hurly burly trading of interests in a world where no politician has ever lost an election by being tough on crime. According to Stuntz: "The criminal justice system has run off the rails. The system dispenses not justice according to law, but the "justice" of official discretion. Discretionary justice too often amounts to discriminatory justice." Stuntz gives a great and detailed description of the historical forces that led to this accidental train wreck. "That conventional wisdom gives too much credit to the politicians, whose conduct offers little evidence that they were seeking to create a justice system like the one we have today." "They followed their own preferences when the voters allowed, and made choices that conformed to short-term political incentives when the voters insisted on a different tack. Cumulatively, those choices changed the justice system radically: first in one direction, then the other. But neither the officials in charge of criminal justice-from Supreme Court Justices to state legislators, from prosecutors to police chiefs-nor the voters planned on such radical change, in either direction." Stuntz' opinions seem to be an thoughtful conglomeration of Chicago School economics, a liberal interest in ending discrimination, a conservative view of the role of government and an over abiding belief in democracy. For example, Stuntz writes: "Because federal criminal law has such small consequences for the federalbudget, Congress makes too much of it. Senators and Representatives use criminal law and sentencing doctrine to send symbolic messages-we're tough on crime and criminals-not to define prohibited conduct and its consequences. So Congress criminalizes too much and sentences too harshly." Stuntz also documents the rise of pleas, the demise of the jury trial and the transfer of power from prosecutors to judges. His solutions are simple, but practical, but even he was not sanguine they could be initiated. This is a book that anyone who is interested in criminal justice issues should read. You may not agree will all of it, and I am not sure I do, but is literally the life's work of a dying man who wanted to share his ideas before he died too young. Please read it. Now for my complaints; the Kindle Edition, at 19.95 is a shoddy mess. In a scholarly work, you want to be able to click on the footnotes. They are not linked. The type face is abominable, and the numerous charts and graphs are difficult to read. Even if you usually read on a Kindle, on this one, get the hard cover version. The book is also over long and repetitive. Simply reading the Introduction gets you 90% of the message, and since you can't get to the notes, on a Kindle, the declining marginal utility of each page pales in much the same way Stutz describes the final months of a 100 month sentence. I don't think Stutz should have to bear responsibility for these complaints. I understand, and learned after I read the book, that he" finished" it while going through the last stages of cancer treatment. I would hope those responsible for the work he poured his last months into would clean it up as a sign of respect for the author's efforts.Read it. It's important, thought provoking and intelligent.

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