The Collapse of American Criminal Justice

The Collapse of American Criminal Justice

William J. Stuntz
Copyright Date: 2011
Published by: Harvard University Press
Pages: 848
https://www.jstor.org/stable/j.ctt2jbtht
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  • Book Info
    The Collapse of American Criminal Justice
    Book Description:

    Rule of law has vanished in America’s criminal justice system. Prosecutors decide whom to punish; most accused never face a jury; policing is inconsistent; plea bargaining is rampant; and draconian sentencing fills prisons with mostly minority defendants. A leading criminal law scholar looks to history for the roots of these problems—and solutions.

    eISBN: 978-0-674-06260-3
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-x)
  3. Introduction: The Rule of Too Much Law
    (pp. 1-12)

    Among the great untold stories of our time is this one: the last half of the twentieth century saw America’s criminal justice system unravel. This book seeks to address two questions. First, how did the unraveling happen? And second, how might our dysfunctional justice system be repaired? Answering the first question goes some distance toward answering the second.

    Signs of the unraveling are everywhere. The nation’s record-shattering prison population has grown out of control. Still more so the African American portion of that prison population: for black males, a term in the nearest penitentiary has become an ordinary life experience,...

  4. I. Crime and Punishment
    • [I. Introduction]
      (pp. 13-14)

      Two migrations and two associated crime waves largely define the history of crime and punishment in the United States. The wave of European immigrants of the late nineteenth and early twentieth centuries led to a modest rise in violence and prompted a modest response from the lenient and localized justice system of that era. The twentieth century’s northward migration of southern blacks led to a wave of violent crime—which, oddly, prompted first a sharp decline in criminal punishment and then an unprecedented increase.

      The consequence of those trends is an unsustainably large prison population, disproportionately composed of young African...

    • CHAPTER 1 Two Migrations
      (pp. 15-40)

      In the seventy years preceding World War I, 30 million-plus Europeans left their homelands and headed for America’s shores.¹ Though a few of these immigrants settled in the South and some established farms on the midwestern prairie, the largest fraction populated the cities of the nation’s industrial belt: the great swath of territory north of the Potomac and Ohio rivers and east of the Mississippi. Those cities were transformed.

      Here is one sign of the transformation: in 1854, the anti-immigrant Know-Nothing Party won all but three seats in the Massachusetts legislature,² including nearly every Boston seat—a mark of the...

    • CHAPTER 2 “The Wolf by the Ear”
      (pp. 41-60)

      Jefferson’s letter is better known for another line: “this momentous question, like a fire bell in the night, awakened and filled me with terror. I considered it at once as the knell of the union.”¹ The question, of course, was the status of black slavery.

      When the letter was written, John Holmes was a Massachusetts Congressman, soon to be a Maine Senator. Maine had long been a part of Massachusetts; in 1819, its people sought admission as a separate state. As Holmes was among the leading political figures in that soon-to-be state, he stood to benefit from Maine’s admission. This...

  5. II. The Past
    • [II. Introduction]
      (pp. 61-62)

      The first century after American in dependence saw the emergence of two sets of legal ideals that might govern the nation’s criminal justice system: James Madison’s Bill of Rights, and the legal guarantees of John Bingham’s Fourteenth Amendment—especially the promise of the “equal protection of the laws.” That same century also saw the establishment of two different sets of institutional practices to govern the justice system’s day-to-day operation. In the North, local democracy did most of the governing. In the South, democracy meant either the rule of rich whites or the rule of white mobs.

      Over the last two-thirds...

    • CHAPTER 3 Ideals and Institutions
      (pp. 63-98)

      Enforcing criminal law is one of government’s most important tasks, yet also among the most dangerous. If crimes are punished too rarely, if violent streets are not well policed or if witnesses cannot be protected, violence and disorder can reach Hobbesian proportions. On the other hand, if crime is punished too severely—if the police behave brutally or if outsiders decree that a large fraction of the young men in some communities must live behind bars—the justice system may come to represent an engine of alien oppression in the eyes of those whose obedience it seeks to compel. Omelettes...

    • CHAPTER 4 The Fourteenth Amendment’s Failed Promise
      (pp. 99-128)

      The original Constitution assumed a criminal justice system dominated by state governments. (Local dominance came later.) Article I, Section 8 of that document defines the power of Congress by listing the topics about which Congress may legislate. The list is a long one, with twenty-nine items, not counting the catch-all provision with which it ends: “The Congress shall have power … [t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” The only bodies of criminal law mentioned in that long list are counterfeiting, piracy, “offences against the law of nations,” and crimes...

    • CHAPTER 5 Criminal Justice in the Gilded Age
      (pp. 129-157)

      The notion that local politics is the best means of governing crime and criminal punishment seems strange, even a bit crazy. Americans live under the most politicized criminal justice system in the Western world, and among those who know it well, that system is hardly a point of national pride. The last half-century, with its massive drop and still more massive rise in punishment per unit crime, seems to confirm the conventional academic wisdom that politics is a poor governing tool in this area. As for the “local” aspect of local politics, Americans elect both prosecutors and most trial judges...

    • CHAPTER 6 A Culture War and Its Aftermath
      (pp. 158-195)

      There was another side to Gilded Age criminal justice, one that had little to do with homicide rates, vigilance committees, or the behavior of “true men.” Between the late 1870s and 1933, America’s criminal justice system fought a series of cultural battles in which criminal law—especially, federal criminal law—was a key weapon: against polygamy, state lotteries (more precisely, one state lottery), prostitution, various forms of opium, and, last but definitely not least, alcoholic drink. Taken together, these legal battles constituted a two-generation culture war, akin to the cultural battles over drug use, abortion, and gay rights in our...

    • CHAPTER 7 Constitutional Law’s Rise: Three Roads Not Taken
      (pp. 196-215)

      In the wake of America’s first great culture war, another legal trend took hold: the rise of the law of constitutional criminal procedure. That body of constitutional law was different than the body of law that produced Supreme Court decisions like Reynolds v. United States or Champion v. Ames—cases that posed the question whether Congress could legitimately criminalize defendants’ behavior. Twentieth-century constitutional law posed another question: May the government investigate, try, and punish crime in this manner? The focus was on procedure, not substance—on the ways in which local police officers, prosecutors, and trial judges did their jobs,...

    • CHAPTER 8 Earl Warren’s Errors
      (pp. 216-243)

      It is one of history’s stranger ironies that Earl Warren—a progressive Republican who won both parties’ nominations while governor of California,¹ later the Chief Justice who devoted his judicial tenure to protecting civil rights for black Americans and expanding civil liberties for all Americans—helped usher in the harsh politics of crime that characterized the twentieth century’s last decades. Warren and his fellow Justices sought to make the nation’s criminal justice system less politicized, and more protective of the rights and interests of criminal defendants. Expanded constitutional rights were supposed to guard defendants against the kind of politics that...

    • CHAPTER 9 The Rise and Fall of Crime, the Fall and Rise of Criminal Punishment
      (pp. 244-282)

      The two great stories of late twentieth-century crime and criminal justice were a massive punishment wave and a less than massive but still substantial crime drop. A few numbers capture the importance of these two stories. America’s imprisonment rate rose from fewer than 100 per 100,000 population in the early 1970s to more than 500 today. Before 1980, the nation’s historical record was 137. In the 1990s and early 2000s, America’s rate of violent crime fell by more than a third.¹ We live in a safer country than the one our predecessors knew in the 1970s and 1980s. We also...

  6. III. The Future
    • CHAPTER 10 Fixing a Broken System
      (pp. 285-309)

      In the magazine article just quoted, former prosecutor and later law professor Paul Butler famously—some would say infamously—argued for “the subversion of American criminal justice.”¹ Butler, a black man himself, maintained that far too many young black men were being sent to prison for nonviolent drug offenses, and urged black jurors to respond by refusing to convict black defendants in drug cases, regardless of the governing law and the evidence. That is, Butler argued for jury nullification. The argument was not well received: even the liberal New York Times,² not to mention a bevy of academic opponents,³ criticized...

  7. Epilogue: Taming the Wolf
    (pp. 310-312)

    Hope can be a powerful force. The justice system of the last generation has given us a lot of bad news, but along with it has come some very good news. If backed up with enough personnel, the softer forms of policing work: they tame urban crime to a degree no one thought possible only a short time ago. At the same time, those policing strategies may also tame the other threat that looms over contemporary American criminal justice: the state’s seemingly insatiable desire to punish young black men. Crime becomes less attractive when relationships between cops and would-be criminals...

  8. Note on Sources and Citation Form
    (pp. 315-316)
  9. Notes
    (pp. 317-394)
  10. Acknowledgments
    (pp. 395-398)
    Ruth Stuntz, Sarah Stuntz, Samuel Cook-Stuntz, Elizabeth Cook-Stuntz and Andrew Stuntz
  11. Index
    (pp. 399-414)