The Collapse of American Criminal Justice by William J. Stuntz (review)

This is a remarkable book for two reasons. First, the circumstances surrounding its publication are extraordinary. William J. Stuntz completed the manuscript as he was dying and delivered it to Harvard University Press when he went into hospice care; three colleagues oversaw the final revisions, and Stuntz succumbed to cancer, at the age of fifty-two, six months before the book appeared in print. Second, The Collapse of American Criminal Justice is remarkable for its rich, thoughtful, and provocative analysis. A legal scholar, Stuntz was most interested in the ways in which the intersection of law and public policy undermined the modern criminal justice system, triggering soaring rates of incarceration even as levels of violent crime plummeted. To explain this “punishment tsunami” (251), Stuntz reaches deep into the American past and traces the complex alchemy of historical contingency, law, and politics that sparked the crisis in law and order. Although Stuntz emphasizes legal and constitutional developments, he constructs his argument on a historical foundation.

Over the course of the twentieth century, according to Stuntz, the American criminal justice system became less democratic, more capricious, and more discriminatory. Whereas many legal historians argue that the rule of law and principles (and practices) of equal protection grew stronger over the last hundred years, Stuntz offers the opposite interpretation. He devotes particular attention to the criminal justice system between Reconstruction and the Great Depression, which he dubs the “Gilded Age,” and contrasts it with its early twenty-first-century counterpart.

Stuntz argues that the Gilded Age criminal justice system was extremely effective in the Northeast and Midwest, largely because it was an expression of local democracy. Policemen patrolled their own neighborhoods and enforced the law in ways that reflected popular sensibilities, while jurors, also relying on community-based notions of justice, exercised compassion and only reluctantly convicted defendants. Such close ties between law enforcers on the one hand and crime victims and offenders on the other hand insured that the criminal justice system operated according to local ideals of justice, was “egalitarian” (131), dispensed punishment leniently, and controlled crime. In the nation’s largest cities, working-class immigrants—as policemen, jurors, and voters—commanded enormous influence, and hence the legal system maintained its legitimacy and its ability to discourage disorder without resorting to repression, resulting in low levels of violent crime and punishment.

Over the course of the twentieth century, this system crumbled, and the state-formation process spearheaded the unraveling. The professionalization of law enforcement, for instance, created a chasm between the police and local residents, eroding levels of trust and undermining informal mechanisms for maintaining order. The centralization of the courts further alienated immigrant and working-class residents from the governmental officials who judged and punished them. The growth of federal law enforcement also undermined local democracy and disrupted the relationship between crime and punishment, causing wild fluctuations in the latter without regard to the former. By the 1930s, for example, imprisonment rates skyrocketed, though violent crime fell.

During the late twentieth century, the quality of justice deteriorated. The “rule of law collapsed,” discrimination “grew steadily worse” (2), and the United States began punishing its citizens at rates comparable to Russia, the late-century drop in violent crime notwithstanding. A confluence of factors contributed to this downward spiral. The Warren Court’s efforts to redress racial injustice, Stuntz argues, played a central role. Rather than protecting African Americans by insuring equal protection under the law, the Warren Court focused on due process, extending procedural rights to criminal suspects and defendants. Far from protecting the innocent, Warren Court decisions imposed new procedural requirements on law enforcers. As violent crime exploded during the late 1960s and 1970s, these decisions appeared to coddle the guilty, fueling a ferocious political backlash. Opportunistic office seekers, such as George Wallace and Ronald Reagan, demanded tougher criminal sanctions, and both Congress and state legislatures enacted a spate of new crime-control laws. White flight further...