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Where American criminal justice went wrong

Diagnosed with cancer, a Harvard law professor raced to issue a powerful final indictment

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The book was written in a hurry. It had to be, because William Stuntz was dying, and the story he wanted to tell was long and complicated. It would be the Harvard Law School professor’s final major work, a sweeping indictment of the system he had been studying for 25 years.

Stuntz was 49 when he found out he had stage four colon cancer. For the remaining three years of his life, he worked on the book whenever he could: in his office at Harvard; at his family’s home in Belmont; even at the Massachusetts General Hospital Cancer Center, where he would sit with his laptop in the infusion chair and type. Stuntz passed up pain medication so he could think more clearly. In the final days, after he entered hospice care, he had his assistant mail him a draft of his manuscript so he could go over any last minute changes.


What drove Stuntz to finish the book -- even as he continued teaching classes and trying to spend as much time as he could with his wife and three children -- was a belief that something had gone fundamentally awry in America. Stuntz, an evangelical Christian and an avowed conservative, wanted people to grasp the profundity of the crisis he had observed -- how, over the past 50 years, our criminal justice system had been transformed into an unfair, amoral bureaucracy--one that had given up on the very idea of justice.

Stuntz submitted his completed manuscript to his editor at Harvard University Press in January 2011, about three months before he died at age 52. “The Collapse of American Criminal Justice” was published the following fall. In it, Stuntz describes how America’s incarceration rate came to be the highest in the industrial world; how the country’s young black males came to bear the brunt of its increasingly harsh penal code; and how jury trials became so rare that more than 95 percent of people sent to prison never had their guilt or innocence deliberated in court. At the heart of the book is Stuntz’s surprising argument about how we reached this point: that well-intentioned Supreme Court rulings meant to protect defendants from unfair and discriminatory police practices combined with the harsh laws passed in response to the crime wave of the 1960s and ’70s to produce a system that is merciless, destructive, and above all, unjust.


Concern about the prison population is usually a liberal issue, but Stuntz, who favored small government, opposed abortion, and made no secret of voting Republican, was driven in his academic work by a sense of concern for the disenfranchised and the poor that would have struck many members of his party as unforgivably left-wing. It is precisely because Stuntz was such a peculiar political animal that his book - which has been praised in outlets as politically diverse as the Nation and the National Review, and has been endorsed by the likes of Richard Posner and former Supreme Court Justice John Paul Stevens - is now being described by legal scholars as a work of potentially huge influence.

“Bill’s not of the typical knee-jerk lefty camp,” said Carol Steiker, one of Stuntz’s colleagues at Harvard Law School, and one of a group of friends he deputized before his death to help steer the book through publication in his absence. “And he’s willing to say what non-knee-jerk lefties want most to be said, which is that...crime is a terrible thing, and it’s something we should want to have as little of as possible. But he’s also saying there are prices we should not be willing to pay, and that as a society we should be ashamed to be paying, in the service of that laudable goal.”


Though the early critical reception for the book has been enthusiastic, ideas for major social change typically grow as their authors promote, defend, and develop them over time. Without Stuntz alive to speak for it, it remains to be seen how the book’s legacy will grow. And although it seems like a deeply pessimistic work--more a grim diagnosis of what has gone wrong than a plan for how to fix it--the colleagues who have vowed to spread his ideas believe it has arrived at a moment when, thanks to historically low crime rates and budget crunches in the prison system, reform seems more possible than it has in years.


IN 2010, THE MOST recent year for which the Justice Department has figures available, there were an estimated 2.3 million adults in jail or prison in the United States. That means nearly 1 in 100 American adults are behind bars, an incarceration rate more than five times higher than it was 40 years ago. The numbers for African-Americans are even more grave: According to the Sentencing Project, a Washington think tank, a third of all black males born today will serve time at some point in their lives.


The debate over what these numbers mean has tended to break down along a neat political fault-line, with liberals blaming unfair drug laws, racist prosecutors, and excessively harsh “three strikes” sentencing guidelines, and law-and-order conservatives pointing to the nation’s falling crime rate as evidence that whatever our justice system is doing is actually working quite well.

Instead of pointing the finger one way or the other, Stuntz decided to look at the entire “political economy” of the justice system, as he called it: the prosecutors who charge people with crimes, the attorneys who defend them, the courts that determine who is allowed to do what, and the legislators who craft the laws in the first place. Stuntz’s approach grew out of his experience as a student, and later a professor, at the University of Virginia School of Law, which was a hotbed for a movement within the legal academy known as “law and economics,” whose proponents believe laws should be assessed not just on principle and precedent, but on what kind of behaviors they incentivize in the real world.

Applying this approach to the mass incarceration problem, Stuntz concluded that the single most important development in the recent history of American criminal justice was the so-called rights revolution ushered in by Earl Warren’s Supreme Court during the 1960s. Through a series of landmark rulings, including Miranda v. Arizona, the Warren Court had instituted a set of procedural mandates that sought to protect defendants from abusive and unfair prosecution tactics. Evidence collected through illegal search and seizure became inadmissible in court. Police officers were required to inform suspects of their rights before arresting them. Defendants who couldn’t afford a lawyer were to be provided one by the state. The rulings were hailed by the left as major victories in the fight for civil rights, and condemned by right-wing critics who thought they made it harder to catch and convict criminals.


But as Stuntz saw it, the Warren Court’s reforms had another, far less obvious effect: They created new incentives that changed the way defense lawyers and prosecutors did their jobs. Stuntz described it as a chain reaction, set off by the fact that the court had focused all its efforts on procedure, and had failed to impose any substantive limits on what legislators could criminalize and the punishments they could impose. The result was that defense attorneys--especially overworked public defenders--realized they could score easy victories for their clients by getting charges dismissed on procedural grounds; legislators, in turn, reacted by criminalizing a much broader range of activities and imposing harsh minimum sentencing requirements, which prosecutors could use as leverage to win guilty pleas.

As criminal justice became a clash of mandates and bureaucratic rules, it became untethered from what was once its basic function: separating the guilty from the innocent and delivering fair punishment to those who deserved it. Today, most criminal cases are resolved without any verdict on a defendant’s guilt in a courtroom, but instead through a sort of procedural crossfire. In effect, those rights that the Warren Court gave defendants have become bargaining chips, to be traded away by defense attorneys in exchange for shorter sentences.

“He suggested that the question of guilt or innocence had been lost in the shuffle,” said Yale Kamisar, professor emeritus at the University of Michigan Law School, who is considered the intellectual godfather of the Warren Court’s rulings. “The way the system worked, it wasn’t really the dominant thing anymore.”


William Stuntz

IN HIS BOOK, Stuntz conjures an idealized vision of America’s past - a time when criminal defendants, at least in the North, could expect their fates to be determined in open court, by a jury of their peers, rather than negotiated in a plea bargain behind closed doors. In those days, Stuntz writes, criminal justice was essentially local: Police officers patrolled the neighborhoods in which they lived, and criminal cases were decided by juries composed of people who could be expected to treat defendants with a degree of empathy. Under the current system, justice is essentially administered by prosecutors, who have every incentive to threaten defendants with the harshest possible sentence--and indirectly driven by politicians, who court the favor of voters by passing more and tougher laws. The practical result, Stuntz writes, is that the criminal justice system is now anything but local, and mostly indifferent to the people whose lives are most directly affected by it. Poor minorities who live in the urban neighborhoods with the most crime are living under laws passed to please middle-class voters who live elsewhere, and processed by a system built to force a guilty plea rather than determine whether they actually deserve to go to prison.

That imbalance is at the center of Stuntz’s book, and it reads as a wake-up call to Americans under the illusion that our justice system still centers around the jury trials promised in the Constitution. But in arguing that fair-minded and consistent procedure is not, in itself, enough to guarantee just outcomes, Stuntz was also issuing a profound challenge to his own profession.

“It is the lawyer’s conceit to believe, on some level, that if you can get the procedure to be perfect, that will ensure that the results will be perfect,” said Joseph Hoffmann, a professor at the Indiana University Maurer School of Law, who has known Stuntz since the two of them clerked together on the Supreme Court. “It’s the way most lawyers look at the world....They would say procedural justice is how you get to substantive justice.”

Stuntz believed one needed only to look at the extraordinary racial disparity in America’s prisons to know that notion was wrong. And it was this belief that caused him to take a position that truly distinguished him from his fellow conservatives: that America’s higher courts shouldn’t just restrict themselves to procedural doctrine, but should think instead about the substance and the effects of laws, and be willing to strike them down if they are not enforced fairly. Many legal thinkers would regard an approach so focused on outcomes as naïve, even dangerous, leaving us open to the whims of activist judges. But in a system that took justice seriously as a goal, Stuntz argued, American courts would act more aggressively than even the liberal Warren Court did to ensure that the laws they help enforce were used for good, and were applied equally to everyone.


OVER THE COURSE of his career, both at Virginia and Harvard, Stuntz’s work helped reshape the field of criminal procedure by compelling his colleagues--even those who disagreed with him about how much responsibility the Warren Court deserves for the current state of criminal justice--to think about laws less abstractly and more pragmatically, and to see them as levers in a complex system whose unintended consequences can outweigh their intended ones. Stuntz’s contributions to the field were the subject of a two-day conference at Harvard Law School shortly before he died, and earlier this year, a book of essays exploring his legacy was published by Cambridge University Press.

For all his passion on the subject, and influence in the legal academy, Stuntz’s book left one question largely unanswered: What should be done? Indeed, though the book includes several practical proposals about what should change--Stuntz believed there should be more police officers stationed in dangerous neighborhoods, for instance, and that more funding should be spent on hiring public defenders--the famously modest professor did not presume to know how to roll back the pernicious chain of events he observed.

“The last thing he would ever think was that people would read his book, put it down, and march off knowing precisely what the next move should be,” said Daniel Richman, a professor at Columbia Law School who helped with the book’s publication. “This isn’t a call to arms as much as an explanation. It’s a plea for an understanding of a history, and a strong suggestion of how that history should inform our dismantling of a system that isn’t working.”

Stuntz wanted to show that there was nothing inevitable about our present circumstances--that what has gone wrong in our criminal justice system is the result of decisions and miscalculations that can be identified and understood. That doesn’t mean they can be easily annulled, of course, but it does provide hope that change is possible.

“His turn to history is not just a matter of telling a story, but of reminding us that even those who would, at least initially, think that he’s naïve, are too caught up in their own historical moments,” said Richman. “And that the world doesn’t have to be the way it seems.”

Leon Neyfakh is the staff writer for Ideas. E-mail lneyfakh@globe.com.