The Collapse of American Criminal Justice (review)

Legal scholars of all stripes have already hailed this book, published shortly after the author's death in 2011. Like a bowler unleashing a strike, Stuntz takes dead aim at the center of conventional wisdom and proceeds to knock all its pins aside. He recounts the antebellum lynchings of some 300 white people (95), the success story of Prohibition (185-186), and the long-term negative effects of theWarren Court's enforcement of the Bill of Rights against the states (235-236). The problem that the work addresses is that "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 criminal punishment" (2).

The author attributes this collapse to a series of developments in law, demography, and political structure during the last sixty years. In making his argument, he moves carefully through data collections, especially ones involving crime statistics and population trends abroad as well as at home, that too rarely appear in works of legal history. He writes, "Though most of this work is about the past and a few portions of it deal with empirical data, I am neither a historian nor an empirical social scientist as members of those guilds will quickly recognize" (9)—not because of any failure on his part to consult the relevant sources but because of what he does with his data. As a "historian," he does not hesitate to seek lessons from the past for the present and future, and as an "empiricist," he is willing "to draw unconfident conclusions based on incomplete evidence" rather than to narrow his temporal focus by making only such claims as high-quality data can prove (10).

This decision to paint in broad strokes both gives the book its iconoclastic strength and leaves it vulnerable to criticisms that the particular historical elements from which the argument is constructed are misleadingly portrayed. Tersely stated, the argument centers on two problems that the criminal justice system faced at the middle of the last century— on the one hand, the problem of government abuse and discrimination (disproportionately in the South) and, on the other hand, the increase in crime. As prior history had shown, the appropriate responses would have been to increase police presence on the streets and to use the court system to enforce substantive limits on criminal law in order to reduce the discretionary power of prosecutors. Those responses would have located the key decisions regarding culpability in the jury—which, being composed of local citizens subject to both the depredations of criminals and the abuses of officials, would have been the proper locus of power (302-304).

But the opposite happened. The courts focused on procedural rights, and legislators took advantage of this orientation to write more and more capacious criminal statutes, with two negative results. First, prosecutors' legitimate exercise of discretion in bringing charges became so broad that discrimination is almost impossible to prevent ex ante (301). Second, because under such statutes almost every defendant is guilty of something, criminal cases today consist of a preliminary attack on procedural aspects of the prosecution's case followed by a guilty plea (229;139, 302) rather than a jury trial. Meanwhile, changes in budgetary incentives have smoothed the way to increasing prison populations rather than police forces (253-255).

The solution, as envisioned in this book, lies in returning to the policy path that should have been taken six decades ago. It would involve a series of fundamental legislative and judicial reforms, the effect of which would be to locate all decisions regarding criminal law at the level of the constituencies affected—for instance, jury trials for alleged criminals rather than plea bargains—and to institute fair and effective policing practices that would minimize excessive, knee-jerk incarceration (283). "Could all these changes happen? Yes. Will they happen? Probably not" (307). But all future debates about criminal...