« Clemency policy and practice as symbol of failed Obama presidency | Main | Effective review of capital law ineffectiveness in Pennsylvania »

October 23, 2011

Former Justice Stevens reviews late Professor Stuntz's "The Collapse of American Criminal Justice"

9780674051751In the new issue of the The New York Review of Books, Former SCOTUS Justice John Paul Stevens reviews the final book written Professor Bill Stuntz, which is titled "The Collapse of American Criminal Justice."   This terrific and lengthy review is headlined "Our ‘Broken System’ of Criminal Justice," and here is how it starts and finishes:

William Stuntz was the popular and well-respected Henry J. Friendly Professor of Law at Harvard University.  He finished his manuscript of The Collapse of American Criminal Justice shortly before his untimely death earlier this year.  The book is eminently readable and merits careful attention because it accurately describes the twin problems that pervade American criminal justice today — its overall severity and its disparate treatment of African-Americans.

The book contains a wealth of overlooked or forgotten historical data, perceptive commentary on the changes in our administration of criminal justice over the years, and suggestions for improvement. While virtually everything that Professor Stuntz has written is thought-provoking and constructive, I would not characterize the defects in American criminal justice that he describes as a “collapse,” and I found his chapter about “Earl Warren’s Errors” surprisingly unpersuasive.

Rather than focus on particular criminal laws, the book emphasizes the importance of the parts that different decision-makers play in the administration of criminal justice.  Stuntz laments the fact that criminal statutes have limited the discretionary power of judges and juries to reach just decisions in individual cases, while the proliferation and breadth of criminal statutes have given prosecutors and the police so much enforcement discretion that they effectively define the law on the street....

Professor Stuntz’s account of the “collapse” of an overgrown system of criminal law enforcement is well worth reading.  It is full of interesting historical discussion. It accurately describes the magnitude of the twin injustices in the administration of our criminal law.  It should motivate voters and legislators to take action to minimize those injustices.

The publisher's website for Stuntz's book has this summary overview of the book and its themes:

The rule of law has vanished in America’s criminal justice system. Prosecutors now decide whom to punish and how severely.  Almost no one accused of a crime will ever face a jury. Inconsistent policing, rampant plea bargaining, overcrowded courtrooms, and ever more draconian sentencing have produced a gigantic prison population, with black citizens the primary defendants and victims of crime.  In this passionately argued book, the leading criminal law scholar of his generation looks to history for the roots of these problems — and for their solutions.

The Collapse of American Criminal Justice takes us deep into the dramatic history of American crime — bar fights in nineteenth-century Chicago, New Orleans bordellos, Prohibition, and decades of murderous lynching. Digging into these crimes and the strategies that attempted to control them, Stuntz reveals the costs of abandoning local democratic control.  The system has become more centralized, with state legislators and federal judges given increasing power.  The liberal Warren Supreme Court’s emphasis on procedures, not equity, joined hands with conservative insistence on severe punishment to create a system that is both harsh and ineffective.

What would get us out of this Kafkaesque world?  More trials with local juries; laws that accurately define what prosecutors seek to punish; and an equal protection guarantee like the one that died in the 1870s, to make prosecution and punishment less discriminatory. Above all, Stuntz eloquently argues, Americans need to remember again that criminal punishment is a necessary but terrible tool, to use effectively, and sparingly.

October 23, 2011 at 01:34 PM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e2015392872a32970b

Listed below are links to weblogs that reference Former Justice Stevens reviews late Professor Stuntz's "The Collapse of American Criminal Justice":

Comments

The notion that the criminal justice system is "broken" or "ineffective" is preposterous. Over exactly the time this alleged disaster is supposed to have happened, the crime rate has fallen by roughly half.

That is not "broken" and it is not "ineffective." It is, to the contrary, and astonishing success story. If anyone here can name a similarly successful domestic program of comparable size and scope, I'd love to hear about it.

I will readily concede that the system looks "broken" to two categories of observers: (1) academics who never saw a criminal for whom an excuse could not be conjured up, and (2) the criminals themselves.

Posted by: Bill Otis | Oct 23, 2011 2:08:46 PM

To make the "disparate treatment of African-Americans" one of the two prongs of this ivory-tower attack on the American criminal justice system undermines any patina of credibility by this author.

Study after study has shown that the black incarceration rate is a direct function of black crime rates and not a biased legal system. The Professor's specific claim that blacks are 9 times more likely to serve time in prison for drug crimes than whites is an outcome that is accounted for by the gravity of their offenses--more often involving weapon possession and violence--as well as their longer, more persistent, criminal histories.

Posted by: mjs | Oct 23, 2011 2:28:57 PM

As to the S & L frauds in the 80s there were 1000 criminal prosecutions. So far as to the mortgage securitization frauds there has been only one criminal prosecution.

The criminal justice system during the past 30 years has been very successful in significantly lowering the rate of street crime. This is a great social good and credit should be given to those responsible.

However, depending on the methodology used to define the number of criminal acts, the number of criminal actors, the number of victims, and the amount of loss of the mortgage securitization frauds, we may be living in the midst of the largest crime wave the country has ever seen.

Posted by: Fred | Oct 23, 2011 2:32:19 PM

Prof. Berman:

"twin problems that pervade American criminal justice today — its overall severity and its disparate treatment of African-Americans."

How about the forbearance of the biased pro-criminal lawyer allowing 20 million FBI Index felonies a year, and only 2 million prosecutions? How about the six fold higher murder rate of Black people, most being males in their productive years? That results in 5000 excess murders a year. What it took the KKK 100 years to achieve, 5000 lynchings, you lawyers are achieving every year. Your are 100 times more effective than the Klan at eradicating black young males. After 50 years of consistency, this disparity in the murder victimization rate, not that of incarceration rates, has taken the foreseeability of planetary orbits. That disparity totally belongs to the lawyer profession, is a massive constitutional tort, and perhaps a crime against humanity.

How can one explain this upside-down, Twilight Zone world in which you lawyers reside? Severity and disparate treatment happen to be appellate advocacy points. You make fees on advocacy. You make nothing on helping to save crime victims.

I want you to try saying the V word. You can't, not even in the privacy of a room alone. You can easily say, Victim Impact. That is because that will generate major lawyer employment to help victims navigate the complex legal system at tax payer expense.

I would like to know if you ever took a course from Prof. Stuntz.

Posted by: Supremacy Claus | Oct 23, 2011 2:32:53 PM

@Bill,

You missed a third category: (3) conscientious lawyers who watch their clients die because judges are overly concerned with procedure (e.g., technical violations of supervised release), and not enough concerned with equity (e.g., client will die if taken from his number-one spot on an organ-transplant list).

Posted by: afpd | Oct 23, 2011 3:04:23 PM

afpd --

Do you seriously think that one case or a handful of cases like the one you describe can be used to characterize THE ENTIRE SYSTEM as broken or ineffective?

Indeed, can a handful of cases be used to characterize an entire system AT ALL, when that system handles millions?

Do you see me complaining here day after day about erroneous acquittals? About the fact that Casey Anthony got away with murder?

She did, as others have, but in a system that handles the volume ours does, outlier cases and occasional errors are just that. They are also unavoidable in ANY system.

You don't deny that the crime rate has fallen dramatically. You don't deny that what this means is thousands fewer people murdered, raped, robbed, burglarized, yoked, mugged, swindled and on and on. If that is not a success, the word "success" no longer has a meaning.

I invite you to name a singe domestic program over the last twenty years that has had anything close to the beneficial effect for the average citizen as the massive reduction in crime has had.

Posted by: Bill Otis | Oct 23, 2011 5:51:19 PM

@Bill,

I'm sorry you seem to be so angry and bitter. That must not be fun. (I know it's not for me when I get that way.)

I will assume that you would like answers to your questions, that they weren't just angry rhetoric.

1. No, I do not think one bad case means an entire system is "broken." It may just mean that one particular judge is "broken," or impaired. But I do see this a lot in my practice (and just so you know, I've been an AFPD longer than you were an AUSA). This being judges (federal ones, anyway, b/c they're the only ones I have personal experience with)elevating form over substance/technicalities over equities. And I believe a large part of why they do this is b/c of a broken, or at least seriously impaired, federal criminal justice system.

2. I don't follow your blog comments that closely (they get a little repetitive/predictable), but it does seem I've seen you here complaining quite a bit about erroneous acquittals, the Casey Anthony case being a recent example. (I didn't follow the case as closely in the press as you must have to form such a strong opinion. I didn't actually follow it closely enough to form any opinion.)

And thank you for agreeing with me (I think) that the case of mine I described was in fact an example of the criminal justice system not having worked as it should have. It was indeed that, and it was decent of you to admit it.

Posted by: afpd | Oct 23, 2011 7:17:35 PM

afpd --

Usually condescension is more subtle than yours, but after so many years of doing your best for guilty and dangerous people, you must be worn out.

What's that? The phony psychology game is tiresome? Right you are. So don't play it with me. It just doesn't work for a person who refuses to give his name to look down his nose at someone who openly identifies himself in every single post.

On the merits: I'm happy to admit the system's failures, since, inter alia, every system on earth has them. I take it you will return the favor by admitting that a criminal justice system that has so massively reduced the crime rate -- something you manage not to mention at all in favor of a few personal cracks at me -- is, far from broken, an astounding success.

Will you make that admission? Or is the huge drop in crime something you don't care about?

Posted by: Bill Otis | Oct 23, 2011 7:56:58 PM

Bill:

"You don't deny that the crime rate has fallen dramatically."

I won't deny that the crime rate has not been reduced. Months ago I asked you to provide data or studies to demonstrate that the reduction in crime in the last 20 plus years was a direct result from harsher penalties. I am asking for the data/studies again. Someone else could say that the reduced crime rate was a result of global warming (which is a lie) or the use of computers, which also increased over the same time period, and they would be as accurate as your comment.

However, I know you will not provide me with the studies so I will not hold my breath.

"You don't deny that what this means is thousands fewer people murdered, raped, robbed, burglarized, yoked, mugged, swindled and on and on."

No Bill, those functions are now performed by your government.

Posted by: albeed | Oct 23, 2011 8:55:23 PM

albeed --

"Months ago I asked you to provide data or studies to demonstrate that the reduction in crime in the last 20 plus years was a direct result from harsher penalties. I am asking for the data/studies again....However, I know you will not provide me with the studies so I will not hold my breath."

You can exhale now. Indeed, you could have exhaled four weeks ago, when I referenced the studies you request in the second comment on this thread:

http://sentencing.typepad.com/sentencing_law_and_policy/2011/09/effective-ny-times-editorial-assailing-mandatory-minimum-sentencing-laws.html

You can read the University of Chicago study directly here: http://pricetheory.uchicago.edu/levitt/Papers/LevittUnderstandingWhyCrime2004.pdf

Try to keep up with the blog before bellyaching about what's allegedly not on it. And yes, I accept your apology.

Posted by: Bill Otis | Oct 23, 2011 10:32:36 PM

Bill:

No apology offered and I do not wish your forgiveness. I have quickly read the UoC article and it is full of tripe (legalization of abortion is the primary reason for the reduction in crime).

I will do a more lengthy review of the article and offer you my opinions (which won't matter to you).

My current comment for you is, (OK, we have a human and thus imperfect system, why do you object so strenuously when someone tries to rein in the absolutely bastard powers of DAs?) They should NOT have absolute immunity!

Plus, there is much junk science by LE that the system makes hard to disprove based on money and admissibility!

Note: Not once, in many of my posts, have I objected to the Death Penalty. I know that there are evil people out there, but put limits on who you try to paint as dangerous.

Posted by: albeed | Oct 23, 2011 11:25:07 PM

albeed --

You need to take a class in reading. Prof. Levitt says that the two most important factors in the reduction in crime are increased incarceration (about a quarter of it) and more and more targeted policing.

What you need to apologize for is your accusation that I did not provide the studies you requested and would not do so. Both accusations were false.

I nonetheless now have no interest in an apology, since you're just too full of yourself ever to admit you're wrong. Any apology would be insincere, so don't bother.

Posted by: Bill Otis | Oct 23, 2011 11:38:33 PM

Bill:

I am asking the readers of this blog to respond to your comment on who is too full of himself.

Note: You and TQ (a mutual admiration society) can only vote once.

I will not vote.

Posted by: albeed | Oct 23, 2011 11:46:09 PM

albeed --

I'm sure the poll will be super interesting to those who follow personalities instead of issues. Of course the only important question raised by the entry Doug put up has nothing to do with you or me. The question is whether a criminal justice system that has massively reduced the crime rate can honestly be called a failure.

With respect to that question, I will repeat what you preferred not to respond to:

"Prof. Levitt says that the two most important factors in the reduction in crime are increased incarceration (about a quarter of it) and more and more targeted policing."

What is your response?

"What you need to apologize for is your accusation that I did not provide the studies you requested and would not do so. Both accusations were false."

What is your response?

Posted by: Bill Otis | Oct 24, 2011 12:30:44 AM

Bill:

I went to bed after turning off my computer but my cat woke me up by capturing a mouse. I turned my computer back on and read your response.

You posted your super-duper study on a post I did not read, instead of the one I asked you for!

Why do the Jesuits pay you at GTOWN. You have serious issues!

I told you that I will respond after I have read the "TRITE" article.

And it is something I would consider worthy of PEOPLE Magazine.

Good Night! Talk to you tomorrow.

Posted by: albeed | Oct 24, 2011 1:26:08 AM

albeed --

The number of serious crimes annually 20 years ago was 14,872,900. The number last year was 10,329,135. That is a drop of 4,543,765.

Source: http://www.disastercenter.com/crime/uscrime.htm

My premise here is that the criminal justice system has quite a good deal to do with the incidence of crime. To believe otherwise is to have lost track of reality.

If the premise is correct, then the main thesis of Prof. Stuntz's book -- that the criminal justice system is a failure -- is not only wrong but absurd. The system is, instead, by the measure that counts most, an incredible success.

That's the substance of it. Let's just try to stay with substance.

Posted by: Bill Otis | Oct 24, 2011 7:43:07 AM

From Just Another Guy
To BILL OTIS, Esq., who typed, "About the fact that Casey Anthony got away with murder?"
~
Mr. Otis, sir: What if she were guilty of negligent homicide and then panicked ?
The child remains dead, yet the degree of homicide is much lower.

What if I were to unintentionally, yet negligently, to kill a rogue prosecutor who had put an innocent loved one on death row by trashing the Brady rule and knowingly using perjured testimony ?

Were I to recycle her or him through a food processor, then ship the liquid slurry to a disciplinary entity; I would (in Ohio) be guilty of:
1) negligent homicide and 2) gross abuse of a human corpse.

I agree that were I to evilly kill his family members, then ship the liquid remains to her or his office and a disciplinary entity; I would be guilty of very serious offenses.

Ohio has had a few rogue prosecutors over the decades who deserve "Operation Heydrich", but statute law forbids implementing the action.

Almost all of the criminal defense lawyers that I know or know of (including Ohio Rule 20 Certified), represent the Constitutional and statutory rights of the defendants, whether the defendants are innocent or guilty.

Respectfully submitted,
JAG
Associate Member Ohio Association of Criminal Defense Lawyers, typing for me and not it.

Posted by: JAG | Oct 24, 2011 9:27:35 AM

BTW, most of the prosecutors that I have met are ethical and pretty decent folk.

Posted by: JAG | Oct 24, 2011 9:30:46 AM

JAG --

"Mr. Otis, sir: What if she were guilty of negligent homicide and then panicked?"

People don't stay panicked for months. Just doesn't happen. Kids of that age are a lot of work. She killed her daughter for a perfectly obvious reason: to get back to party time. She's hardly the first, and won't be the last.

The rest of your post shows that you have a delicious, as it were, sense of humor.

Posted by: Bill Otis | Oct 24, 2011 9:38:14 AM

LOL@albeed

Perhaps if you (and so many of the other forum progressives)were not such an obviously miserable and unhappy person, you could have friends too!

Posted by: TarlsQtr | Oct 24, 2011 1:08:25 PM

To go to the very first comment--that the ONLY people who think the justice system is broken are academics or criminals---I would have to disagree. As a defendant in a criminal trial who would NEVER even have contemplated breaking the law, I found myself in a world where vague laws are used as a club to force me into a guilty plea or toward poverty defending myself. I chose the "poverty" route, going to trial, at great risk to myself. The fact that I was acquitted has really offered me NO satisfaction. I'm NOT happy the system "worked"---I'm unhappy because I was prosecuted at ALL! The fact that I faced stiff Federal sentences for spending money--something EVERYONE does, has led me to an interest in All areas of our criminal justice system--sentencing included, and I see problems. As a citizen who thought they understood what was criminal before this happened to me, and thought that criminals were "some other guy" who had nothing to do with me---my eyes have been opened. The crimes that are out there don't just include the clear cut ones---rape, murder, embezzlement, etc. They also include those that can ensnare the unwary---spending money "wrong" (which can be interpreted as money laundering under present case law---I used to think it was hiding dirty CASH from drug deals! silly me)--depositing funds into your account in the wrong way (structuring) or even taking the risk of Talking to ANYONE in Authority (because later if what you said could be proven untrue) can all lead to Federal Prosecutions or lead to a conviction---as I've painfully learned. When you brush up against our system with Your OWN interests at stake, you certainly learn to care about it---
suddenly it's not for some other guy, it's for YOU.

Posted by: folly | Oct 24, 2011 2:16:25 PM

Folly, if you haven't read "Three Felonies a Day", you should.

Posted by: JS | Oct 24, 2011 2:53:35 PM

To Mr. Otis.

☺ I forgot the fava beans and a bottle of Boone Farm's wine. ☺
~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~
"The rest of your post shows that you have a delicious, as it were, sense of humor."

Posted by: JAG | Oct 24, 2011 3:04:23 PM

'I invite you to name a singe domestic program over the last twenty years that has had anything close to the beneficial effect for the average citizen as the massive reduction in crime has had.'

Yes, another federally enacted program....Social Security of which you'll possibly be able to reap some benefits from if your not already an old fart :-O

Posted by: comment | Oct 25, 2011 7:23:55 PM

comment --

Now that you mention it, I am an old fart, but I don't take Social Security because I'm waiting for the monthly payments to get fatter as I age. Of course I'd be crazy to wait too long -- I wouldn't want Obama "borrowing" the SS trust fund (not that there actually is one) to give to his billionaire bundlers for their next ten Solyndra escapades.

Still, I'm thrilled to see that you acknoledge that the vastly increased imprisonment we have had over the last 20 years has had widespread benefits comparable to those of Social Security. The numbers I cited fully bear you out, and I thank you for your candor. Would that we got more of it from your allies.

Posted by: Bill Otis | Oct 25, 2011 8:07:31 PM

can't 100 % agree with that the Justice system is ruined. It's not. But this is an incredibly great thing to do - trying to improve it. Justice is one of the most important things for the country.

Posted by: flac to mp3 converter | Jan 13, 2012 3:49:46 AM

People don't stay panicked for months. Just doesn't happen. Kids of that age are a lot of work. She killed her daughter for a perfectly obvious reason: to get back to party time. She's hardly the first, and won't be the last.

Posted by: mp4 to dvd converter | Aug 21, 2012 12:00:17 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB