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July 18, 2005

Great insights on SCOTUS and criminal justice

Over at The New Republic Online, Professor Bill Stuntz has this fantastically interesting commentary about the Supreme Court's role in the criminal justice system.  Here are just a few passages from a short piece that raises more interesting ideas than most articles 10 times longer:

[T]he Supreme Court's most important job is not managing the culture wars.  Regulating the never-ending war on crime is a much bigger task.  Alas, it may also be the job the Court does worst.

Civilizations define themselves by when, how, and whom they punish. Those choices are especially important in a society like ours, with a long history of both criminal violence and official racism. Forty-five percent of American prisoners are black. The imprisonment rate — the number of prison inmates per 100,000 people — stood at 482 in 2003. Among black males, the figure was 3,405. For black men in their late twenties, the number exceeds 9,000.  Court decisions that help shape those numbers are vastly more important than the latest church-state fight. And the justices do shape those numbers, both by what they regulate and by what they leave alone....

Why does the Court do such a bad job in this area?  The answer may be simple ignorance.  The criminal justice system is a massively complex enterprise.  Figuring out the effects of the latest abortion ruling is child's play compared with unpacking the consequences of decisions like Wardlow and Kyllo on policing or the effects of cases like Miller-El and Booker on criminal trials and plea bargains.  Getting those consequences right would be hard even for experts. And the highest court in the land is not filled with experts.  Souter is the only sitting justice with substantial experience in criminal litigation — and that was on the not-exactly-mean streets of New Hampshire.  Frontline urban prosecutors and defense attorneys rarely end up on federal appeals courts, the breeding ground for future justices.  So they never make it to presidential short lists.

Justices who have never seen the inside of a police station are happy to expound on the virtues and vices of different kinds of drug enforcement.  If they knew more, they might say less. Veterans of the criminal justice trenches understand that, when it happens, productive change comes from the men and women who serve in those trenches.

One reason I like this commentary so much is because it spotlights, as I have in recent posts here and here and here, that Justice O'Connor's replacement could possibly have a profound and surprising impact on the Supreme Court's criminal justice jurisprudence.  I also like the commentary because it has me thinking about the possible virtues and potential impact of an O'Connor replacement who has some experience as a sentencing judge (although, interestingly, very few of the "short-list" names bandied about by the press have experience as a federal or state trial judge).

Since the latest buzz is that we may get a nominee from President Bush this week, now seems like a good time to collect some recent posts on these SCOTUS topics:

July 18, 2005 at 05:25 PM | Permalink


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» Supreme Court's Role in the Criminal Justice System from TalkLeft: The Politics of Crime
Professor William Stuntz has an interesting article in the New Republic on the Supreme Court's role in the criminal justice system. Sentencing Law and Policy has excerpted some of the most pertinent quotes. [T]he Supreme Court's most important job is... [Read More]

Tracked on Jul 20, 2005 1:55:16 AM


Professor Stuntz captures my thoughts about the "justice" portion of our criminal justice system quite eloquently. I find that I have only been able to express these views with too much snark and therefor too little credibility. Thank you for sharing this commentary.

Posted by: jeannie | Jul 19, 2005 11:52:27 AM

I am a defense attorney, practicing white collar crime in DC but have taken on several pro bono criminal appeals and have found your website very helpful and insightful. Here is a just a brief response to prof stuntz's article:
At first glance, I agreed with much of what he said (re:the importance of trial experience). However, my dad pointed out to me that it's not necessarily bad to have Sup Ct justices who are somewhat "removed from the trenches," that doesn't necessarily mean that they aren't able to carefully consider the implications of their decisions on the system as a whole. Perhaps the ones who are in most need of a trip to the courthouse and the prisons are legislators (as demonstrated in the recent flap with sensenbrenner) because many of the complaints that Prof Stuntz has with the criminal justice system can most fairly be placed at their doorstep. The Supreme Court Justices seem pretty aware of the stakes involved and the effects that a constitutional superstructure can have on trial courts. And in the Blakely and Booker decisions, they seem to struggle with how to balance criminal procedure ideals versus practical considerations regarding the sentencing process. I think that's why Ginsburg flipped between Scalia's ideal in Blakely to Breyer's pragmatic compromise in Booker (much to my dismay). I'm not sure that having more Justices with trial judge experience would have necessarily altered the framework presented by each side. But i'd be interested to hear your thoughts/

Posted by: brad | Jul 19, 2005 12:17:22 PM

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