Book review by Derek Gilna

The late William J. Stuntz, a Harvard law professor who conducted extensive research into the “rule of law” in American society, authored a tome that attempts to explore how the U.S. justice system has arrived at its current state. His posthumously published book, The Collapse of American Criminal Justice, probes how the concept of justice has virtually disappeared from the courtroom, and suggests some solutions.

Stuntz’s examination starts with the premise that the criminal justice system in America has “unraveled.” The facts he cites speak for themselves: approximately one in a hundred Americans are incarcerated in county, state or federal facilities, and this does not include tens of thousands of undocumented aliens who are imprisoned while awaiting deportation and removal proceedings. The rate of incarceration in the U.S. is higher than that in Russia under Stalin. How did this happen?

The plight of African-American males is considered. “For black males, a term in the nearest penitentiary has become an ordinary life experience, a horrifying truth that wasn’t true a mere generation ago ... discrimination against both black suspects and black crime victims grew steadily worse ... black drug offenders are punished in great numbers, even as white drug offenders are usually ignored ... [and] blacks victimized by violent felonies regularly see violence go unpunished....”

Stuntz also tracks punishment and trends, with special emphasis on the past sixty years, noting that “in the late 1960’s and early 1970’s, the United States had one of the most lenient justice systems in the world. By century’s end, that [same] justice system was the harshest in the history of democratic government.”

The book describes how law enforcement officials define the law that they enforce, which allows them to be selectively severe in terms of choosing what charges they file. “Prosecutors now decide whom to punish and how severely. Almost no one accused of a crime will ever face a jury. Inconsistent policing, rampant plea bargaining ... overcrowded courtrooms, and ever more draconian sentencing have produced a gigantic prison population...,” Stuntz writes.

Students of jurisprudence interested in historical developments in the American justice system will find much in this book to interest them. Early U.S. criminal justice was virtually all local in nature, with the federal government having no meaningful involvement in law enforcement. This changed in the 1920s with the advent of Prohibition: “Prohibition’s enforcers imprisoned those who manufactured and sold alcoholic beverages, not those who bought and drank them,” Stuntz notes. After failing to accomplish much more than harass the former and not concerning themselves with the latter, the federal government declared the war on alcohol lost and repealed the Prohibition laws.

Today, Professor Stuntz explains that prosecutions for selling illegal drugs are unusual in many jurisdictions; instead, “prosecutors charge either simple possession or ‘possession with intent to distribute,’ meaning possession of more than a few doses of the relevant drug.”

Those easily proved drug offenses are used as cheap substitutes for harder-to-prove distribution charges. Worse, in some jurisdictions, drug possession charges have become one of the chief means of punishing violent felons. Proof of homicide, robbery and assault is often difficult because it requires the cooperation of witnesses who may be reluctant to testify in court. But “[i]f the police find drugs or an unregistered weapon on the defendant’s person or in his home, [the] witnesses need not be called and those harder-to-prove offenses can be ignored.”

Stuntz cites other examples of how criminal charges can be manipulated by prosecutors. “Convicting Martha Stewart of insider trading proved impossible, but no matter; Stewart could be punished for hiding the inside-trading-that-wasn’t ... the law defines a menu of options for police officers and prosecutors to use as they see fit.”

Professor Stuntz also writes about a recurring trend in America, which he terms “pendulum justice.” From 1950 to the mid-1960s, the rate of imprisonment fell by more than 20% while the murder rate, “a decent proxy for the rate of violent felonies and felony theft more generally,” doubled. That trend toward lenity was followed by an even sharper turn toward severity: “Between 1972 and 2000, the nation’s imprisonment rate quintupled.... Prisons that had housed fewer than 200,000 inmates in Richard Nixon’s first year in the White House held more than 1.5 million as Obama’s administration began. Local jails contained another 800,000.”

The book faults broad delegation of power to prosecutors, stating that the equal protection guarantee is “all but meaningless when applied to criminal law enforcement, one reason why both drug enforcement and enforcement of laws banning violent felonies are [enforced] so differently in black communities than in white ones....” Jury trials are now a “rare event,” with most cases ending via plea bargain. This shifts power from the citizens who sit in jury boxes to the less visible assistant district attorneys who decide whom to punish and how severely. Further, federal and state lawmakers have repeatedly cashed the “tough-on-crime check” to garner votes, without regard for the long-term social and economic consequences of harsher criminal justice policies.

Stuntz is not optimistic about this trend ending anytime soon, but asks for “a revival of the ideal of equal protection of the laws.” He also seeks a return to the concept of the “local democracy that once controlled American criminal justice ... [and] fewer guilty pleas and more jury trials.”

He closes with a plea not for more laws but “for a better brand of politics, one that takes full account of the different harms crime and punishment do to those who suffer them, and one that gives those sufferers the power to render their neighborhoods more peaceful, and more just.”

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