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Our ‘Broken System’ of Criminal Justice

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Drawing by Honoré Daumier

William Stuntz was the popular and well-respected Henry J. Friendly Professor of Law at Harvard University. He finished his manuscript of The Collapse of American Criminal Justice shortly before his untimely death earlier this year. The book is eminently readable and merits careful attention because it accurately describes the twin problems that pervade American criminal justice today—its overall severity and its disparate treatment of African-Americans.

The book contains a wealth of overlooked or forgotten historical data, perceptive commentary on the changes in our administration of criminal justice over the years, and suggestions for improvement. While virtually everything that Professor Stuntz has written is thought-provoking and constructive, I would not characterize the defects in American criminal justice that he describes as a “collapse,” and I found his chapter about “Earl Warren’s Errors” surprisingly unpersuasive.

Rather than focus on particular criminal laws, the book emphasizes the importance of the parts that different decision-makers play in the administration of criminal justice. Stuntz laments the fact that criminal statutes have limited the discretionary power of judges and juries to reach just decisions in individual cases, while the proliferation and breadth of criminal statutes have given prosecutors and the police so much enforcement discretion that they effectively define the law on the street.

Ironically, during an age of increasing protection for civil rights, discrimination against both black suspects and black victims of crime steadily increased. Stuntz attributes this development, in part, to the expansion of prosecutorial and police discretion—in his view, “discretion and discrimination travel together.” For example, the discretionary authority to enforce posted speed limits has enabled state troopers to be selectively severe in making arrests, and to use those arrests to justify searches for evidence of drug offenses. While Stuntz does not suggest that such discriminatory enforcement of traffic laws is itself a national crisis, it provides one illustration of the negative effects of excessive enforcement discretion.

The result, Stuntz writes, has been a serious disadvantage to African-Americans in their encounters with the American criminal justice system. While only 10 percent of the adult black population uses illegal drugs, as does a roughly equal percentage—9 percent—of the adult white population, blacks are nine times more likely than whites to serve prison sentences for drug crimes. “And the same system that discriminates against black drug defendants also discriminates against black victims of criminal violence.” As “suburban voters, for whom crime is usually a minor issue,” have come to “exercise more power over urban criminal justice than in the past,” police protection against violent felonies has disproportionately extended to suburban neighborhoods rather than the urban centers where more black individuals reside.

The “bottom line,” Stuntz explains, has been that “poor black neighborhoods see too little of the kinds of policing and criminal punishment that do the most good, and too much of the kinds that do the most harm.” In this sense and others, Stuntz concludes, our criminal justice system has “run off the rails.”

A major part of the book includes a historical narrative that identifies the sources of this discrimination against African-Americans and also explains the severity of our treatment of all offenders. The severity of the system is almost as disturbing as its discriminatory impact. In the years between 1972 and 2007, the nation’s imprisonment rate more than quintupled—increasing from 93 to 491 per 100,000 people. The rate at the end of that period vastly exceeded the analogous rate in other Western countries, which varied from 132 for England and Wales to a mere 74 in Germany and 72 in France. Moreover, during those years,

The number of prisoner-years per murder multiplied nine times. Prisons that had housed fewer than 200,000 inmates in Richard Nixon’s first years in the White House held more than 1.5 million as Barack Obama’s administration began. Local jails contain another 800,000.

Rather than a “collapse,” however, these figures suggest to me that the current system of criminal law and enforcement (like too many of our citizens) has grown obese.

Stuntz believes that two enormous migrations that led to crime waves largely define the history of crime and punishment in the United States. The first occurred during the seventy years preceding World War I when over 30 million Europeans came to America and settled primarily in cities in the industrial Northeast. The second occurred during the first two thirds of the twentieth century when seven million blacks left the rural South and moved into the same cities. To put simply Stuntz’s description of the central difference between those two migrations: during the European migration, urban politics soon produced local police forces made up of officers who were similar to and resided among the residents of the areas they were protecting—Irish-Americans trusted Irish cops from the neighborhood to treat them fairly—whereas during the black migration, the white majorities living in suburban areas selected the prosecutors and police officers who enforced the law in black urban neighborhoods.

During the Gilded Age, crime was not controlled chiefly through punishment, but rather through local democracy and the network of relationships that supported it:

Police officers sometimes lived in the neighborhoods they patrolled, and had political ties to those neighborhoods through the ward bosses who represented their cities’ political machines. Those patrols happened on foot: officers, those whom they targeted, and those whom they served knew one another. Cops, crime victims, criminals, and the jurors who judged them—these were not wholly distinct communities; they overlapped, and the overlaps could be large.

Stuntz is careful not to romanticize that justice system because he recognizes that while policing was then “more relational,” it was also “more brutal, more corrupt, and lazier,” as police officers licensed vice and merely regulated crime, rather than enforcing prohibition of it.

It is fair to infer, however, that the relationships between the police and the residents of high-crime neighborhoods have a significant impact on the amount of crime that prevails in those areas. The dramatic difference in the homicide rate in the area where I grew up and President Obama lived before moving to Washington—“Chicago’s upscale, racially integrated but mostly white Hyde Park”—and the “neighboring Washington Park, with a poor, 98 percent black population,” certainly suggests that there is a material difference in the quality of the police protection available in those neighboring areas. In Hyde Park, the homicide rate is 3 per 100,000; in Washington Park, it is 78 per 100,000.

One suggestion implicit in much of the book is that a more prompt and vigorous attempt to take affirmative steps to enlist black police officers to protect black neighborhoods with which they are locally connected might well have been wise. I am reminded of the powerful argument set forth in an amicus curiae brief filed eight or nine years ago in Grutter v. Bollinger, the University of Michigan affirmative action case.

The brief was filed by twenty-nine military leaders, including men like General Wesley Clark and General Norman Schwarzkopf and several others who had achieved four-star rank. Those amici were thoroughly familiar with the dramatic differences between the pre-1948 segregated armed forces and the modern integrated military, and their brief recounted the transition from the former to the latter. Within a few years after President Truman’s 1948 Executive Order abolishing segregation in the armed forces, the enlisted ranks were fully integrated. Yet during the 1960s and 1970s, those ranks were commanded by an overwhelmingly white officer corps.

The chasm between the racial composition of the officer corps and the enlisted ranks undermined military effectiveness in a number of ways set forth in the brief. Among these was the failure of enlisted service members to report maltreatment to their commanding officers. In time, the leaders of the military recognized the critical link between minority officers and military readiness, eventually concluding that “success with the challenge of diversity is critical to national security.” They met that challenge by adopting race-conscious recruiting, preparatory, and admissions policies at the service academies and in ROTC programs.

The historical discussion in that brief did not merely imply that a ruling outlawing comparable programs would jeopardize national security; it also implied that an approval of Michigan’s admission policies would provide significant educational benefits for civilian leaders. The reasons for taking positive steps to create a diverse officer corps in the military surely apply as well to the need for staffing urban police forces with officers who are capable of relating to the communities they are responsible for protecting. Officers who inspire the trust of members of those communities may more effectively encourage crime-reporting and other forms of cooperation by them.

Stuntz believed that our Constitution overprotects procedural rights and underprotects substantive rights. He begins his discussion on this point by criticizing James Madison’s emphasis on procedure in our Bill of Rights, which he compares unfavorably with the relatively contemporary provisions of the French Declaration of the Rights of Man. Stuntz speculates that Thomas Jefferson, through conversations with the Marquis de Lafayette of the French National Assembly, may have influenced the drafting of the French Declaration. Notwithstanding those similar origins, Stuntz notes that the French document, unlike the American Bill of Rights, contained a definition of “liberty”—“the power to do anything that does not injure others”—and a substantive limitation on the power to criminalize conduct—“only such actions as are injurious to society.” While he recognizes that those French principles did not survive Napoleon’s rule, he implies that comparable provisions in our Bill of Rights might have restricted the virtually unlimited power of legislatures in America “to criminalize whatever they wish.”

Stuntz contrasts the pen of the great James Madison with the second-rate politicians of later times, who adopted “slapdash” institutional arrangements that too easily bend to the shifting winds of local politics:

America’s justice system suffers from a mismatch of individual rights and criminal justice machinery, between legal ideals and political institutions. When politicians both define crimes and prosecute criminal cases, one might reasonably fear that those two sets of elected officials—state legislators and local district attorneys—will work together to achieve their common political goals. Legislators will define crimes too broadly and sentences too severely in order to make it easy for prosecutors to extract guilty pleas, which in turn permits prosecutors to punish criminal defendants on the cheap, and thereby spares legislators the need to spend more tax dollars on criminal law enforcement.

In Stuntz’s view, constitutional law could reduce the risk of this “political collusion” by limiting legislators’ power to criminalize and punish. Madison’s text, by focusing on procedural instead of substantive limits, ignores “the core problem” posed by the strange design of our justice system.

According to Stuntz, the basic explanation for the mismatch is that the present institutions of American criminal justice did not develop until well after the drafting of the Bill of Rights, hence that document did not provide limits tailored to those institutions. The changes that occurred in the North between the Founding and the 1850s began the expansion of the power of local and elected officials in criminal law enforcement that later facilitated the excessive discretion and political collusion that Stuntz criticizes. Private tort-like enforcement of criminal laws gave way to full-time elected criminal prosecutors; elected state judiciaries wielded greater power than their appointed predecessors; politicized legislative codes began to substitute for common law crimes; urban police forces were organized, the first having been established in New York City in 1845; and the power of juries to determine whether given conduct merits punishment was narrowed.

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