Harvard Law Review Harvard Law Review Harvard Law Review

Criminal Law

Crime and Law: An American Tragedy

Surveying the problems plaguing the criminal justice system

The cruelly early death of Professor William Stuntz cost us our deepest thinker about criminal law. I use the term “thinker” because the clichéd term “scholar” would miss the point. Law professors speak of each other as scholars in part as a default. Given the vocabulary of the profession, it makes no sense to call ourselves “lawyers” in the way our colleagues can call themselves economists, historians, philosophers, or chemists. But the term “scholar” summons up an image of classical and historical erudition, an image that corresponds poorly to the analytic commentary that many legal academics write; more importantly, it would mischaracterize Stuntz’s contribution. Stuntz was surely erudite in all the venerable ways, and his sensitivity to historical perspective was exquisite, but his writing does not depend on reference to esoteric knowledge, primary materials, or archival sources – nor on any methodological breakthroughs of empirical science. His materials were the legal doctrines, manifest institutional structures, and empirical data available to all of us. His contribution, fully realized in this grand valedictory book, was to teach us to think creatively and critically about how we design the technology of government and to accept responsibility for its means and its products.

In The Collapse of American Criminal Justice, Stuntz demonstrates that American criminal justice is a disaster. It is a horrendous mess of mismatched means and ends, of legal protections thwarted and misguided, of political demagoguery imposing brutal penalties on the undeserving, and of willful inefficiencies in the institutions created to protect both public safety and the public fisc. Moreover, in his most declamatory message, Stuntz joins the large contemporary chorus that has denounced the state of incarceration in America for both its embarrassing magnitude and its ugly disproportionalities. But the title suggests that the system has collapsed from something – that at times our criminal justice system has done things right such that it can point us down a righteous path. We can put things in terms of Stuntz’s bad (current) world and good (to some extent past, and possibly future) world.

Cover for The Collapse of American Criminal Justice

The Collapse of American Criminal Justice

By William J. Stuntz. Cambridge, Mass.: Harvard University Press. 2011. Pp. viii, 413. $35.00.

Here are some key features of the world that Stuntz laments that we now inhabit: In the state criminal courts, which do most of the work in our system, we see high-volume, bureaucratic justice dominated by plea bargains (p. 7); much of the litigation we do see is about peripheral procedural matters (p. 196); jury trials almost never happen in part because trials almost never happen (p. 39); we skimp on and dither about police budgets, while prison populations swing widely with political winds and turn upward even at a time of lowering or flat crime rates (p. 5); and prosecutorial discretion often takes the cynical, even sadistic, form of strategically choosing from a menu of highly technical criminal laws with rigid mens rea requirements and strict and severe sentencing schemes such that there is little left for a trial judge – or any honest jury – to do (p. 4). At the federal level, we see a hyper-regulatory criminal law that not only is harsh and rigid itself, but also perversely interacts with state law by offering a backup threat for local district attorneys to deploy in securing guilty pleas (p. 66). At both levels, crimes are often pretextual or contrived to help prosecutors finesse the proof problems that they would face in proving conventional wrongful intent (pp. 300—01).

Here are some key features of the world Stuntz would prefer: At the state level, the ruling penal code would be mostly about the core malum in se crimes against person and property and would be written in transparent lay prose (pp. 303—04); prosecutors would be comfortable bringing large numbers of winnable cases to trial and would accept a certain number of acquittals as a reasonable outcome of the system (pp. 302—05); they would face neither voter’s wrath nor loss of professional ego if they lost cases, because the jury system would be simple and efficient enough to make trials common and timely (p. 302); the jurors would be defendant’s true peers and neighbors (p. 304); they would recognize in the jury instructions not just technical elements of crimes but normative principles of wrongfulness (pp. 303—04); they would administer a healthy dose of rational jury nullification, because their ethical sense would enable them to recognize the mercy-deserving frailties of some defendants (p. 304); and defense lawyers would have resources, especially for investigation (pp. 299—300). In this world, juries might even get to decide issues of law as well as fact, thereby minimizing any role for appellate courts to micromanage the criminal law definitions that might constrain jurie’s ethical judgments. More broadly, this would be a world where most of the investment in criminal justice would be up front – in density of policing, rather than in imprisonment (pp. 30—31, 138—42). Federal statutory law would cover core crimes for which federal jurisdiction is a provable practical necessity, not a constitutional contrivance (pp. 305—07). And federal constitutional law, abetted by congressional power under the Fourteenth Amendment, would serve primarily as a check on state criminal law to advance the values of equal protection and proportionality (p. 291).

Ultimately, Stuntz’s diagnosis and call for transformation of the system might be said to revolve around three principles. First, criminal justice should be decentralized, and the costs and benefits of the operation of the system should be internalized: the more local the system is, the better (pp. 311—12). Second, the system should always favor substance over procedure. By substance he means fairer definitions of crimes, and measurement of sentences and adjudication that focuses chiefly on determining guilt or innocence and not on fine-tuning investigative and adjudicative rules (p. 196). Finally, federal law, on its own terms and as a model for state law, should eschew hypertechnical regulatory crimes in favor of core criminal offenses and, through constitutional decisions and implementing legislation, provide a check on state law, to prevent unequal application of criminal law and irrationally severe punishment (pp. 305—07).

Like most of Stuntz’s work, Collapse is a profoundly thoughtful achievement of systems analysis. The breadth and scope of its policy proposals tempt us to read it as a blueprint of major design components needed for programmatic reform. But we should resist that temptation. This Review will argue that when we hold these principles to the standard of structural design guidelines, they prove less reliable, less clear, and less grounded in pragmatic political science than such a standard demands. Rather, we should read Collapse as an exhortation to, and model of, a way of thinking about criminal justice. This way of thinking requires astute analytic rigor in identifying the decisive choices in the building of legal institutions and a proper respect for the human frailty – individual, collective, and institutional – that produces the frequently awful unintended consequences of these choices.

Underscoring our legacy of slavery as historical admonition, Stuntz presents the moral predicate that punishment is a very bad thing, and we should view it as a tragic necessity, not a moral imperative or value. Thus, he believes that relentless self-criticism is the only hope for creating a criminal justice system that is stable, humane, and efficient. The noble risk Stuntz undertakes is to draw lines between good moral vision and bad moral reactiveness, between sensible institutional reform and quixotic, possibly destructive social engineering. Stuntz may well intend – and clearly we should infer – that this risk is one taken in the form of the relentlessly self-critical and morally chastened process of worrying about criminal punishment, not in the form of optimistic programmatic reform. The practical result might prove to be marginal, incremental, and experimental improvements in our system, motivated by a kind of national embarrassment about the condition we have fallen into. Indeed, Stuntz might object to drastic overhaul, even if it were possible, precisely because he fears what human fallibility wreaks when it attempts categorical institutional change.