WHY THE LAW IS SO PERVERSE

By Leo Katz

University of Chicago, 239 pp., $35

THE COLLAPSE OF AMERICAN CRIMINAL JUSTICE

By William J. Stuntz

Belknap, 413 pp., $35

Americans love puzzles! From the Sunday crossword to “Wheel of Fortune’’ to “Revenge of Killer Sudoku, Vol. 4,’’ they are everywhere. One wonders whether our love of these things helps explain why so many Americans apply to law school every year. Probably not (explaining that phenomenon is itself a puzzle), but it is certainly true that solving complicated puzzles is part of being a good lawyer. Law schools are not entirely foolish to base their admissions decisions at least partially on a test - the LSAT - that is chock full of infuriating logic problems that require test takers to figure out, among other things, whether Abigail, who is allergic to shrimp, loganberries, and maple syrup, can sit next to Bartholomew, who enjoys horseback riding, collecting French newspapers, and skeet shooting off the Lido Deck. (Answer: Only on Tuesdays.)

One of the legal profession’s master puzzlers is Leo Katz, longtime professor at the University of Pennsylvania Law School. Katz, whose previous two books have plumbed the “conundrums of the criminal law’’ (that’s actually the subtitle of one of the books), is back with “Why the Law Is So Perverse,’’ in which he picks some seemingly perverse phenomena in the law and explains why they are in fact not so perverse, but not for the reasons you might think.

What are Katz’s perversities of choice? One involves the law’s refusal to allow people to consent to certain things - why do we prohibit people from selling a kidney to a willing buyer, for example, or why would a proposed law allowing criminals to choose torture over long prison sentences freak everyone out? Katz’s second perversity involves legal “loopholes’’ like tax shelters and contrived criminal defenses (wanting to murder someone, I give them reason to attack me, and then kill them in self defense). Why does the law have so many, and should lawyers be encouraged to take advantage of them?

Maybe you find these phenomena not particularly perverse. Perhaps, you might suggest, they are quite understandable - we don’t let people sell kidneys, for example, because we don’t want organs to be treated as mere commodities like hats or refrigerators, and the law is full of loopholes because lawmakers usually lack the foresight to craft perfect laws. Aha, that’s what I thought you’d say, counters Katz. It turns out, he contends - at times persuasively, at other times less so - that many of our intuitions about these thorny issues are wrong. Employing intricate hypotheticals and rigorous logical explanations, Katz argues that the law’s seeming perversities are inevitable, given the complexity of legal problems (what he calls their “multicriterial’’ character).

For those of us who (important disclaimer here) actually despise puzzles, who would rather watch an infomercial for a new brand of bleach than view five seconds of “Wheel of Fortune,’’ the thought of reading 200 pages of dense puzzling prose may raise the specter of wanting to smash oneself in the teeth with a pair of pliers. And “Why the Law Is So Perverse’’ did occasionally tempt me to engage in such self-smashing, though not nearly as often, or with as much force, as I had feared. Katz wisely peppers his puzzles with humor, jokes, mini-plays, and thoughtful warnings of difficult passages to come (along with welcome invitations to skip ahead) that temper this otherwise demanding volume and make following the twists and turns of the argument well worth the challenge. And for those for whom puzzling is a pleasure in itself, the book will be a feast.

Here’s another puzzle: A sign on a state highway states that the maximum speed allowed is 65 miles per hour. What is the maximum speed that someone can drive there before getting a ticket? Pretty much everyone knows that the answer is not necessarily 65 miles per hour. The real answer is “it depends.’’ It depends on which police officer clocks you going over the limit. It depends on what the officer feels like that day. It depends on whether the officer thinks maybe you have committed some other crime worth investigating. It depends, in too many cases, on whether you are white or black.

Thus begins William Stuntz’s important new book, “The Collapse of American Criminal Justice,’’ a blistering critique of the “arbitrary, discriminatory, and punitive beast’’ that our nation’s criminal justice system has become. The speed limit example is a masterful way to begin the discussion - it accessibly illustrates the dastardly problem of unchecked discretion that Stuntz contends is at the heart of the system’s dysfunction.

In a country where laws are increasingly defined crisply rather than loosely, where courts construe statutes purely according to their text rather than their purposes, where the costs of trials have made them rare occurrences rather than everyday events, and where courts rubber-stamp guilty pleas rather than scrutinize them to ensure defendants are being treated fairly, it is essentially up to police - and more importantly, prosecutors - to decide who should be incarcerated, and for how long. The result? A prison system bursting at the seams, a generation of black men for whom “a term in the nearest penitentiary has become an ordinary life experience,’’ and poor city neighborhoods where violent crime remains rampant.

Stuntz, who passed away earlier this year, was the Henry J. Friendly professor of law at Harvard University and one of the nation’s leading scholars of criminal law and procedure. His work was well-known for uncovering counterintuitive paradoxes at the heart of the American justice system, and “Collapse’’ is filled with them. How, for example, was Prohibition an ideal model for federal criminal law? In what sense, most provocatively, did the criminal procedure revolution of the Warren court - the era that brought us Miranda warnings, government-provided counsel for the indigent, and the exclusion of illegally seized evidence - make things worse rather than better for criminal defendants?

The book is hardly perfect. It is repetitive and maybe 70 pages too long. But its diagnosis of our criminal justice system demands attention. Even more so its suggested remedies. Stuntz recommends a laundry list of reforms, most aimed at making the system more democratic and responsive to the needs of local communities: more police on the streets, juries drawn from neighborhoods rather than counties, greater judicial oversight of guilty pleas, more jury trials, vaguer laws that give discretion back to juries, reduced sentences, greater funding for lawyers on both sides, and a major tweaking of constitutional law doctrine to provide defendants with substantive guarantees of equality rather than mere procedural protection.

Stuntz himself recognized that his suggestions would prove a hard sell in today’s political climate. He prudently opted for hope rather than optimism. But politicians, and the voters that elect them, would be wise to consider Stuntz’s account seriously, because what to do about our deeply flawed criminal justice system - well, that is a puzzle worth trying to solve.