The Collapse of American Criminal Justice by William J. Stuntz

. . . legal doctrines play an important role in the sad story of American criminal justicem and they play an important role in this book. But their role is strange and widely misunderstood: law serves chiefly as a means of giving law enforcers greater discretion and more power to exercise it. Regulating the conduct of those law enforcers is mostly left to politics and politicians. This perverse partnership between law and politics has produced many of the system's worst injustices. The tendency, especially among lawyers, is to think that the chief remedy for those injustices lies in more law--especially more constitutional restrictions on the government's ability to police and punish crime. The thought has some merit: the right kind of constitutional restrictions would make for a better and fairer justice system. Even so, the more urgent need is for a better brand of politics: one 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.

Welcome to my fourth installment of my Criminal Justice Policy Book Review Series. In this installment, we review William J. Stuntz's posthumous magnum opus, The Collapse of American Criminal Justice. If I had to distinguish this book from the others I've reviewed, I'd say it's the most comprehensive. Definitely more for an academic audience (maybe less so than Murakawa's book, but still up there), but also covers substantially more ground.

Stuntz begins his book by describing a puzzling phenomenon: today, crime is up, incarceration is up, and the sense of injustice over this system is, well, up. But, this was not always the case--indeed, comparatively speaking our criminal justice system today is something of a historical curiosity item. So, like, what gives, right? Stuntz identifies three keys: "First, the rule of law collapsed . . . . Second, discrimination against both black suspects and black crime victims grew steadily worse--oddly, in an age of rising legal protection for civil rights . . . . The third trend is the least familiar: a kind of pendulum justice took hold in the twentieth century's second half, as America's justice system first saw a sharp decline in the prison population--in the midst of a record setting crime wave--then saw that population rise steeply."

The book, taking different trends and parts, starts with Reconstruction and follows the development of criminal justice in this country up to today, drawing a contrast between what Stuntz thinks of as a better--albeit not perfect--system (immediately following Reconstruction) to our system today. I'm only going to discuss one of Stuntz's points that was particularly compelling for me. Nonetheless, this book is worth reading for the numerous, other discussions that are thought provoking like:

• Why the migration of Europeans to urban areas had a different effect on crime than the migration of southern blacks to northern cities.
• How our system of imprisonment came to incarcerate so many people, including a disproportionate number of African Americans.
• The rise of prosecutorial discretion, as seen between two different issues of federal criminal law, polygamy and state lottery systems.
• The rise of procedure at the expense of substantive review of crime.

William J. Stuntz

The topic that most fascinates me about Stuntz's book is the relationship between localized control over crime and centralized control over crime. Stuntz describes that over the last one hundred years, control over the criminal justice system shifted away from municipalities and towards county, state, or federal governmental bodies. However, with this shift comes less voter control over criminal justice. Thus, Stuntz writes: "Growing centralization lessened the power of the voters who bore the brunt of crime and criminal punishment alike: meaning, in the late twentieth and early twenty-first centuries, urban blacks." So the neighborhoods most affected by law enforcement, prosecutors' offices, and imprisonment, have little to no say over the very policies dictating these laws.

As a thought experiment, I wanted to look at Clark County, Nevada. The data I've accessed is...imperfect, but I suspect even with perfect data, the conclusions would look the same. Clark County, Nevada has a population of roughly two million people (1,951,269 as of 2010 census). In 2010, the D street neighborhood (incidentally,where my office is) was listed as the 8th most dangerous neighborhood in the United States, covering the 89106 and 89101 zip codes. The district attorney received 224,919 votes to win in 2014(72% of the vote) (disclaimer: he did not have a serious challenger) (second disclaimer: he was an incumbent running in a low voter turnout election). 

According to this sketchy website I found, 89106 has about 25,000 people living in it; 89101 has roughly 90,000 people living in it. It's difficult to interpret anything with such low voter turnout, but even assuming everyone in these two zipcodes could vote and did vote, they would not come close to being able to elect a district attorney (assuming, of course, they would want a different district attorney). Admittedly, with such unreliable data, and data that is not neighborhood specific, it's hard to draw any conclusions.  That said, I would be incredibly interested in more data.

Nonetheless, Stuntz's point is interesting. In Nevada, judicial elections as well as district attorney elections are county-wide (well, technically by judicial district...which usually follows the county line). Thus, in addition to prosecutorial decisions, sentencing decisions are made by candidates elected by the county--which here means both voters in the suburbs and voters in the neighborhoods actually affected by crime. This, to me, seems a big problem. Though, I'm not sure how realistic it would be to even try to make a change to this practice. Nonetheless, shouldn't prosecutors and judges making decisions about whom to prosecute and whom to punish be politically liable to a localized electorate? (Of course, assuming we want judges to be elected at all).

I think part of what interests me in Stuntz's criticism is a concept Hannah Arendt developed, the vita activa (i.e., politically active life). For Arendt it is extremely important in a society for everyone to be politically active. Stuntz describes a system that politically silences the population most affected by criminal justice policy. Here, as in the other areas of his book, Stuntz both describes a problem and possible solution, and leaves to the reader to wonder how to implement it. I'm still wondering.

Stay tuned, I'm sure there's going to be another criminal justice book (maybe even 8) in my future.