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June 18, 2008

The latest must-read from Prof. Stuntz

Though I do not always accept Professor Bill Stunz's anaylsis, I always learn and am provoked by his scholarly work.  His latest opus, entitled "Unequal Justice," is now in print here at the Harvard Law Review.  Here is the abstract:

Inequality is a core feature of American criminal justice, but its causes remain obscure.  Official racism has declined even as the black share of the prison population has risen. The generation that saw the rise of enormous, racially skewed punishment for drug crime followed the generation that saw the rise of civil rights for black Americans and racially integrated police forces.  What explains these trends?  One answer — the decline of local democracy — has received too little attention in the growing literature on this subject.  A century ago outside the South, high-crime city neighborhoods were largely self-governing; residents of those neighborhoods decided how much criminal punishment to impose, and on whom.  Those locally democratic justice systems were both remarkably effective and surprisingly egalitarian.  During the latter half of the twentieth century, local democratic control over criminal justice unraveled. Residents of high-crime cities grew less powerful; suburban voters, legislators, and appellate judges grew more so. Prison populations fell sharply, then rose massively.  The effects of both the fall of criminal punishment and its subsequent rise were disproportionately felt in urban black neighborhoods.  The justice system grew less equal, and less just.

Parts I and II of the Article explore these trends. Part III turns to the future, and asks what steps might be taken to reverse them.  I suggest three changes: better-funded local police forces, more trials to locally selected juries, and more vaguely defined crimes (to give those juries opportunities to exercise judgment).  Those changes would make urban criminal justice more democratic, more lenient — and more egalitarian

June 18, 2008 at 07:45 PM | Permalink

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It seems that mainstream thinkers, whether conservative, liberal, or otherwise, all agree that too many people are in prison as a result of the criminal justice system. The system for dispensing justice is flawed. Others, particularly some of those that comment on this blog, usually respond that if the person simply did not violate the law, that person would not be in prison; that prisons would not be overcrowded if individuals simply stopped committing crime. It is good to know that such thinking is discredited as simplistic and uninformed; it is a minority position among the population, scholars, judges, and practitioners.

Posted by: John | Jun 19, 2008 12:03:30 PM

The state legislature decides what is criminal behavior and establishes the rules of the game. The rules of the game are obeyed, bent or broken at the county level and that means that if you are looking for criminal justice system malfunctions you have to look for them at the county level except for parole policies.

It is common to find overcrowded county jails full of people waiting for the court to process their case. The main reason is that the state has withheld the necessary funding.

It is common to find that the type of sentence (probation/incarceration) depends on race/ethnicity and social economic status. Race/ethnicity and social economic status are very strongly coupled so it is hard to separate the variables.

It is common to find that eligibility for parole depends on offense type, race/ethnicity and social economic status. It should depend on offense type but a dependence on race/ethnicity and SES is a malfunction in my opinion.

One of the best things that has happened is that the state legislators have finally realized that federal funding for criminal justice initiatives is unreliable and some of them are turning down the money. In my opinion most of the federal initiatives have caused more harm than good and have been very costly to state taxpayers. VOTIS is a good example.

It would make a big difference if there was more public input at the local level about jail and prison alternatives.

Posted by: John Neff | Jun 19, 2008 1:57:18 PM

I suggest that the populace and the so called 'people' of the United States emabrace someting called the Due Process Clause of the Fifth Amendment and "taken together with the the Notice and Jury Trial Provisons" of the Sixth Amendment. Jones case, Apprendi and then the other cases. Start with Jones. This blog is called the Booker blog and the Apprendi/Blakely blog and all those other things-- look to Jones folks-- look to Jones.

Posted by: MPB | Jun 19, 2008 2:38:03 PM

Mr. Neff:

"It would make a big difference if there was more public input at the local level about jail and prison alternatives."

I don't know that I would count on public input favoring "alternatives" to incarceration.

I'll give you two reasons, one micro and one macro.

Micro: When I was in the USAO for the EDVA, there was a drug ring operating in Fredricksburg, Virginia (a small town halfway between Alexandria and Richmond). We (the feds) were not dealing with it, because we were in a budget crunch, and we felt the state authorities could handle it.

At a meeting with Fredricksburg civic leaders, called at their request, we got an earful. They didn't want "alternatives" to incarceration. They wanted MORE incarceration, starting yesterday, because a bunch of hoodlums was making life in their town miserable and dangerous. Almost all these civic leaders were African American, incidentally.

When we took the action they requested, the defense alleged that we were engaged in -- of all things -- racial discrimination! The distict judge, a Clinton appointee, agreed. He was unanimously reversed, United States v. Olvis, 97 F.3d 739 (4th Cir. 1996). I have a plaque expressing thanks, and given by those same civic leaders, hanging on the wall of the office where I am typing this.

Moral of story: Don't count on "local people" wanting alternatives to jail until you actually hear them out.

On the macro side: Whether we have "too many" people in jail depends, of course, on how one defines "too many." If one believes, as I do, that the principal purpose of a criminal sanction (imprisonment or anything else) is to safeguard the public, then the manta about 15 years or so of "mass incarceration" is at best suspect. During those 15 years, the incidence of crime victimization has dropped by more than half. (Check it out at the Bureau of Justice Statistics). In other words, the crime rate has plummeted.

There are really very, very few people who commit crime as their vocation. Once you put a bigger fraction of them in the slammer, guess what! -- the crime rate falls.

This is exactly what has happened. In other words, it's not merely one-sided but critically misleading to want to focus the discussion on alternatives to imprisoning criminals without also, and with equal interest and forthrightness, focusing on what will happen, and has happened, when we DO NOT imprison them.

Posted by: Bill Otis | Jun 19, 2008 4:05:38 PM

"In other words, it's not merely one-sided but critically misleading to want to focus the discussion on alternatives to imprisoning criminals without also, and with equal interest and forthrightness, focusing on what will happen, and has happened, when we DO NOT imprison them."

It is misleading to suggest that alternatives to imprisoning criminals will undoubtedly result in increased crime against identifiable victims. The point is that the net has been cast too broadly. There are ways to achieve the same reduction in crime without also incarcerating a large number of people who have no place in jail. The problem is that there is no political will to create alternatives to imprisonment. Throw a large number of "hoodlums" and their associates in jail and of course the crime rate will fall. If you are willing to accept that a good number of nonviolent people on the periphery of the drug trade will be swept up in the net and thrown in jail for long periods, then so be it.

Posted by: John | Jun 19, 2008 5:27:33 PM

Incarceration is supposed to protect public safety and incapacitate habitual offenders. Alternates to incarceration are not appropriate for dangerous offenders and have limited value for habitual offenders

The are a number of cases where short term incarceration is appropriate (a person is temporarily out of control or some types of property, drug and public order crimes) if it is followed by supervision. If there is no follow up supervision the problem is likely to reoccur. There are cases where incarceration is a waste of money because there is no significant threat to public safety and in such cases a low level of supervision reduces the recidivism rate.

The taxpayers will not pay to incarcerate people forever and they will accept alternatives because it is cheaper. But they need to know that the legislature has not cut back funding for supervision because that puts them at risk.

Posted by: John Neff | Jun 19, 2008 7:01:52 PM

John:

"It is misleading to suggest that alternatives to imprisoning criminals will undoubtedly result in increased crime against identifiable victims."

Quite shrewd of you to use the word "identifiable." Brilliant, really.

Of course future crime victims aren't "identifiable" since the future ITSELF isn't "identifiable" in the sense you're using the word.

The day before she was raped and murdered, nine year-old Jessica Lunsford was not an "identifiable" crime victim. She became one, however, because her rapist and killer, John Couey, was released after serving two years of a ten year sentence for a prior child molestation.

And why are people like John Couey out on the steet instead of in jail? Could it have anything to do with the constant drumbeat of "over-incarceration?" Are you prepared to say (and prove) that it had NOTHING to do with that?

Couey's parole was a disgrace and a scandal. The problem was not that the penal system was too harsh. The problem was that it wasn't harsh enough.

"Throw a large number of 'hoodlums' and their associates in jail and of course the crime rate will fall."

Then maybe it's not such a bad idea to do it.

And why do you put "hoodlums" in quotation marks?

"If you are willing to accept that a good number of nonviolent people on the periphery of the drug trade will be swept up in the net and thrown in jail for long periods, then so be it."

What I'm "willing to accept" is the evidently quite unpopular idea that people are responsible for their own choices, that they know drugs are illegal, and that they want to make a fast buck instead of working like the rest of us. And they are not, as you would put it, "swept up" -- simply innocent bystanders caught in a cyclone. They're in the drug business because they want to be. It's easier than working in a factory eight hours a day.

It's just not asking all that much to expect people to stay away from what they know is felonious behavior. If they are unwilling to do even that, then it does not lie with them to complain that their fate is everybody else's fault.

Posted by: Bill Otis | Jun 19, 2008 7:17:19 PM

"Quite shrewd of you to use the word 'identifiable.' Brilliant, really.
Of course future crime victims aren't 'identifiable' since the future ITSELF isn't 'identifiable' in the sense you're using the word."

What are you saying? The word "identifiable" was used in quotations to distinguish crimes like rape or molestation, whether committed in the future or not, from crimes like drug possession and distribution. The guidelines in s 3D1.4, for purposes of the grouping rules, defines the term "victim" and it distinguishes between crimes that involve "identifiable" victims and crimes such as immigration or drug offenses that affect no identifiable victim but rather affect "society at large." Keep trying to make those who disagree with you look evil. It reflects on you, not on anyone else.

Posted by: John | Jun 20, 2008 10:21:34 AM

Also, clearly, a man like Couey belonged in jail belonged in jail for a very long time. His release was not the result of the drumbeat of over incarceration. The drum beat focuses on small time drug possessors and distributors. I believe in long prison terms for child molesters. But it is dishonest to attempt to shift the focus from the mere drug posessors and small time distributors who were the focus of my post to child molesters like Cooey.

Posted by: John | Jun 20, 2008 10:25:27 AM

John:

"The word 'identifiable' was used in quotations to distinguish crimes like rape or molestation, whether committed in the future or not, from crimes like drug possession and distribution."

In your original post using the word, you did not put it in quotation marks AT ALL. Have you forgotten what you said here less than 24 hours ago?

"The guidelines in s 3D1.4, for purposes of the grouping rules, defines the term 'victim' and it distinguishes between crimes that involve 'identifiable' victims and crimes such as immigration or drug offenses that affect no identifiable victim but rather affect 'society at large.'"

At no point did your post state or imply that you were talking about the guidelines. If a point be made of it, however, drug offenses most certainly DO involve identifiable victims, e.g., overdose victims and those who become ill (or dead) on account of adulterated drugs or collisions with drug-impaired drivers.

"Keep trying to make those who disagree with you look evil. It reflects on you, not on anyone else."

I'm not all that concerned about what the pro-drug lobby thinks of me. Drugs are at best unhealthy and at worst lethal. For those who in other contexts are pushing a zillion-dollar government-run system to address health care problems to simultaneously be shilling for a more forgiving attitude toward drug use is just mind boggling hypocrisy.


Posted by: Bill Otis | Jun 20, 2008 2:31:58 PM

I tend to think the just deserts and decriminalization issues raised by Baker, in his critique of Stuntz’s paper effectively make Stuntz’s thesis a non-starter. Baker claims that the harm principle is a proportionality standard enshrined in the Eighth Amendment, and that it could constraint both unequal justice and unjust criminalization. This means more constitutional law not less—especially, rights that tackle the growth of substantive rather than procedural criminal law.

See
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1296629

Also

http://lsolum.typepad.com/legaltheory/2008/11/baker-on-stuntz.html

Posted by: George Walker | Nov 18, 2008 8:01:31 AM

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