As a descriptive matter, Stuntz’s discussion of those unintended consequences does help to explain the severity of today’s criminal law. (Unfortunately, however, he omits analysis of the unintended consequences of the Sentencing Reform Act of 1984, which, in part by curbing judicial discretion, led to a dramatic increase in the severity of federal sentences, as well as the severity of those imposed by states that adopted comparable “reforms.”)
Stuntz minimizes the importance of decisions like Miranda and Mapp, which prohibit the use of probative evidence in certain cases, because the Supreme Court has developed waiver rules that enable the police to avoid their requirements. Moreover, he argues that reliance on such rules has produced a system in which defense counsel give primary attention to the litigation of procedural issues rather than to factual investigation that seeks to come to a correct conclusion on the issue of guilt or innocence. While there is some merit to such criticism, I think it abundantly clear that the rules do far more good than harm.
With particular attention to Miranda, as Chief Justice William Rehnquist wrote in his opinion upholding Miranda against congressional abrogation a decade ago, the case “has become embedded in routine police practice to the point where the warnings have become part of our national culture.” Indeed, in my judgment, the decision played a major role in changing a police culture once riddled with incompetent, lazy, and brutal behavior into a law enforcement profession that is both more effective and also commands widespread public admiration for its dedicated public service.
Stuntz also comments in this chapter on the very live debate among the current members of the Supreme Court about the extent to which the Confrontation Clause of the Sixth Amendment—the right of the accused “to be confronted with the witnesses against him”—requires the exclusion of certain evidence obtained from witnesses who are unavailable at the time of trial. He is critical of two recent decisions that—like both Miranda and Mapp—require exclusion of probative evidence. I think Justice Anthony Kennedy, who dissented in both of those cases, might well have written the comments Stuntz offers. Stuntz argues that while “live witness testimony may have been the best possible means of proving guilt…when the confrontation clause was written and ratified,” “it hardly follows that it is the best possible means today” now that forensic and scientific analysis of physical evidence are more accurate. And he claims that “forcing crime laboratory technicians to double as courtroom witnesses raises the cost to the laboratories of performing the technical analysis,” which “mean[s] less analysis, and hence a less accurate adjudication system,” rather than one that reflects contemporary needs and capacities.
To the extent that Stuntz suggests that confrontation does not advance “any rational policy goal” because live witnesses are less important today than they once were, his argument is quite unpersuasive. Among other justifications, the Supreme Court majority in Melendez-Diaz v. Massachusetts (2009), explained that “confrontation is one means of assuring accurate forensic analysis.” Cross-examination permits a criminal defendant to probe the analyst’s competence, training, judgment, and incentives or pressure for manipulation of the results. Such questioning can expose flaws in the forensic testing process that undercut the reliability of such evidence, the very reliability about which Stuntz expresses concern.
The final chapter in the book is entitled “Fixing a Broken System.” It includes an appraisal of the likelihood of achieving various reforms, their potential costs and benefits, and the political problems they present. While some of Stuntz’s suggestions invite changes in judicial doctrine, his primary focus is on the need for important legislative change. He stresses four themes that have been identified in earlier chapters.
First, he persuasively argues that putting more police officers on city streets is a policy move that should reduce both crime and the number of prisoners. By deterring crime with broader, more certain enforcement rather than heavy punishments for the few most easily caught, this policy would respond both to the problem of excessive penal severity and to the twin effects of systemic racial discrimination—excessive enforcement against black offenders and inadequate protection of black victims.
Second, Stuntz believes that judicial interpretation of the equal protection guarantee in the Fourteenth Amendment should endorse the broad view that prevailed in the early years of Reconstruction, and that was rejected by the Supreme Court in 1876 in Cruikshank and more recently in McCleskey, Armstrong, and Castle Rock. His fundamental point is that the duty to govern impartially requires the state to provide all of its citizens with equal protection against violations of the law: no class should receive less police protection than another or be punished more severely for its crimes than another. The Eighth Amendment’s prohibition against disproportionate punishments also applies that equality principle. The Court’s recent decision prohibiting Florida from imposing a sentence of life without parole on a juvenile for a non-homicide offense is a step in the right direction because such a penalty is almost never imposed in other jurisdictions. Stuntz suggests other means of avoiding disparate sentencing for similar crimes.
Third, he favors allowing judges greater discretion to rein in the political overexpansion of the criminal law. He supports judicial discretion to impose lighter sentences and therefore endorses the Court’s decision in US v. Booker (2005) that essentially changed the federal sentencing guidelines from mandatory rules to advisory recommendations. By the same logic, I believe Stuntz would have opposed legislation imposing mandatory minimum penalties.
Fourth, Stuntz clearly would limit the scope of prohibition and the severity of punishment for the possession or use of drugs. Such amendments would reduce discrimination against black defendants, diminish the severity of the entire system, and make it more difficult for prosecutors to obtain guilty pleas to serious crimes that they are not able to prove. Stuntz notes the same problem—guilty pleas to unprovable crimes—resulting from a prosecutorial practice of charging offenses that make the defendant eligible for the death penalty in order to bargain the defendant into accepting a life sentence. Because of the uniqueness of the fear of death, I find that prosecutorial bargaining chip particularly offensive since it seriously risks persuading an actually innocent defendant to plead guilty and to accept incarceration for his entire life. In my view, it should not be permissible.
For each of three reasons, Professor Stuntz’s account of the “collapse” of an overgrown system of criminal law enforcement is well worth reading. It is full of interesting historical discussion. It accurately describes the magnitude of the twin injustices in the administration of our criminal law. It should motivate voters and legislators to take action to minimize those injustices.