Criminal Justice, Local Democracy, and Constitutional Rights

CRIMINAL JUSTICE, LOCAL DEMOCRACY, AND CONSTITUTIONAL RIGHTS The Collapse of American Criminal Justice. By William J. Stuntz. Cambridge and London: Harvard University Press. 2011. Pp. viii, 312. $35.INTRODUCTIONUniversally admired, and viewed with great affection, even love, by all who knew him, Harvard law professor Bill Stuntz1 died in March 2011 at the age of fifty-two, after a long, courageous battle with debilitating back pain and then insurmountable cancer. In a career that deserved to be much longer, Stuntz produced dozens of major articles on criminal law and procedure. He was a leader in carrying forward the work of scholars who had analyzed criminal justice through the lens of economic analysis,2 and he added his own distinctive dimension by insisting on the importance of political incentives, with their often-perverse effects.3 Ever the contrarian, Stuntz excelled at challenging conventional wisdom, usually from a counterintuitive direction. He often succeeded in shaking an accepted consensus; even readers who remained skeptical were forced to reexamine their fundamental assumptions about how the criminal justice system works.The Collapse of American Criminal Justice ("The Collapse") sums up much of Stuntz's most important work. It brilliantly describes the deplorable injustices of contemporary criminal justice-most notably our massive levels of incarceration and shockingly disproportionate rates of imprisonment for minorities. And, in keeping with the style for which Stuntz became famous, it proposes startlingly original solutions.Stuntz argues that much of the responsibility for our predicament lies, astonishingly, with the very reforms that were intended to promote greater fairness and equality in criminal justice-police professionalism, substantive criminal law revision, and the Warren Court revolution in criminal procedure. In Stuntz's account, the professionalization of policing prevented local urban districts from using less punitive, community-based methods of social control. The Warren Court's due process revolution gave defense attorneys less reason to focus on questions of genuine innocence and gave prosecutors stronger incentives to leverage guilty pleas. Legislatures compensated for new difficulties in prosecution by starving the indigent defense system, enacting broad, easily proved offenses, and ramping up the severity of punishment. The upshot was less attention to factual guilt; greater prosecutorial control over who gets punished (and how much); and even greater disparity between rich and poor, between whites and blacks. All this is laid at the door of police professionalism, criminal justice expertise, and civil liberties landmarks like Mapp4 and Miranda.5 It is a blistering indictment.Stuntz's account presents a challenge that no one concerned about constitutional rights or social justice can ignore. The Collapse is not merely a warning to proceed cautiously. It is an urgent plea to make an immediate U-turn-to de-emphasize expertise and judicial safeguards and to return instead to democratic control through small political units. Beyond its criminal justice implications, this argument has broad significance because it resonates strongly with important preferences in contemporary policy analysis and academic theory-specifically, the public choice approach to assessing legal change and the school of constitutional thought holding that long-term reform comes only through democratic politics rather than courts.For these reasons, the argument warrants an especially thorough assessment. The poor and the vulnerable desperately need protection from state power and the ignoble instincts that can emerge from majoritarian politics. If Stuntz's claims are flawed, yet those who seek to protect the disadvantaged lose faith in expertise and the courts because of the doubts that he raises, the already-fragile safeguards of our criminal justice system and the social support that those safeguards depend on will be lefteven weaker than they already are. …