From a Salon excerpt of the new book, The Collapse of American Criminal Justice, by William J. Stuntz:
There are three keys to the system’s dysfunction, each of which has deep historical roots but all of which took hold in the last sixty years. First, the rule of law collapsed. To a degree that had not been true in America’s past, official discretion rather than legal doctrine or juries’ judgments came to define criminal justice outcomes. Second, discrimination against both black suspects and black crime victims grew steadily worse — oddly, in an age of rising legal protection for civil rights. Today, black drug offenders are punished in great numbers, even as white drug offenders are usually ignored. (As is usually the case with respect to American crime statistics, Latinos fall in between, but generally closer to the white population than to the black one.) At the same time, blacks victimized by violent felonies regularly see violence go unpunished; the story is different in most white neighborhoods. 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. In the late 1960s and early 1970s, the United States had one of the most lenient justice systems in the world. By century’s end, that justice system was the harshest in the history of democratic government.
Take these three trends in turn. As drivers on our highways know well, American law often means something other than what it says. Roadside signs define the speed limit, or appear to do so: 65 or 70 miles per hour on well-built highways, 25 or 30 on local roads in residential areas, something in between for local highways and main roads in business districts. But drivers who take those signs seriously are in for a surprise: drive more slowly than the posted speed limit in light traffic and other drivers will race past, often with a few choice words or an upraised middle finger for a greeting. In the United States, posted limits don’t define the maximum speed of traffic; they define the minimum speed. So who or what determines the real speed limits, the velocity above which drivers risk traffic tickets or worse? The answer is: whatever police force patrols the relevant road. Law enforcers — state troopers and local cops — define the laws they enforce.
That power to define the law on the street allows the police to do two things they otherwise couldn’t. First, state troopers can be selectively severe, handing out fines for driving at speeds no higher than most cars on the road. Second, those same state troopers can use traffic stops to investigate other crimes (assuming one can call speeding a crime), stopping cars in order to ask permission to search for illegal drugs. That common practice gave birth to the phrase “racial profiling,” as troopers patrolling state highways stopped black drivers in large numbers, ostensibly for violating traffic rules but actually to look for evidence of drug offenses. Both enforcement patterns lead to the same bottom line. Because nearly all drivers violate traffic laws, those laws have ceased to function on the nation’s highways and local roads. Too much law amounts to no law at all: when legal doctrine makes everyone an offender, the relevant offenses have no meaning independent of law enforcers’ will. The formal rule of law yields the functional rule of official discretion.
The drop in crime is a pernicious lie. From Lincoln Caplan’s review of the book:
Crime began to plummet in the United States more than 15 years ago, defying all predictions. It did so for nearly a decade. It happened in every part of the country and in every category of crime. While the rate of decline has leveled off in recent years, to many this social achievement has meant that the country need not worry about crime anymore: The problem has been solved. That view is wrong. In reality, the problem simply exists in two places most Americans (and the media) don’t often bother to look: in crime-ridden sections of cities where minorities live, and in the overcrowded prison system that gives America the world’s highest rate of incarceration… The recent decline in crime is less a sign of success than of pathology. The encouraging numbers are misleading. They conceal devastating failure.
Stuntz, an evangelical Christian “considerably to the right of your average Harvard law professor,” died in March of this year:
[A]n influential legal scholar known for his counterintuitive insights, who blamed liberal judges, conservative legislators and ambitious prosecutors for what he saw as a criminal justice system that imprisons far too many people, died…at his home in Belmont, Mass. He was 52. …
Mr. Stuntz looked at criminal law as a collection of “pathologies,” beginning with the Supreme Court’s decisions to give greater protections to people charged with crimes. State legislatures responded to those rulings with laws that toughened sentencing and defined crime more broadly, leading to more jail time and more arrests, disproportionately affecting the poor and minorities.
But Mr. Stuntz said the legislatures neglected to appropriate enough money to deal with the added arrests, particularly for public defenders and others paid by the government to defend the indigent. Adding to the focus on the poor, he said, was prosecutors’ reluctance to bring to trial people who could afford lawyers and who could employ the new court-ordered constitutional protections.
Prosecutors then used their discretion to negotiate guilty pleas with public defenders. The prosecutors could sift through the broader array of criminal charges and sentences passed by legislators to make deals, taking many of what Mr. Stuntz called “easy guilty pleas.”
One result was the sort of paradox he loved to illuminate. “Ever since the 1960s, the right has argued that criminal procedure frees too many of the guilty,” he wrote in The Yale Law Journal in 1997. “The better criticism may be that it helps to imprison too many of the innocent.”
Agreed.