Crime and Punishment: On William Stuntz
William Stuntz, who died in March at 52 after a long struggle with cancer, was a law professor who devoted his career to ending the scourge of racial discrimination in the criminal justice system. Widely acknowledged as the leading criminal procedure scholar of his era, Stuntz defied easy labeling. He was a conservative and an evangelical Christian whose preoccupation with race and mercy allied him with liberals, and whose insights were contrarian and often quite radical. Students and colleagues of all political persuasions admired him for his generosity and humility. His illness and death prompted an outpouring of tributes, including a conference at Harvard Law School attended by all manner of luminaries, and a memorial issue of the Harvard Law Review headlined by the liberal constitutionalist Pamela Karlan. Michael Klarman, one of Stuntz’s liberal colleagues on the Harvard faculty, wrote of Stuntz in his tribute: “I believe that he was the greatest law professor of his generation.”
Stuntz gained a measure of recognition outside the academy for the grace he displayed publicly while dying. In a blog titled “Less than the Least,” he recorded his struggle with cancer and chronic back pain. His posts revealed the workings of a remarkable mind and a modest personality that sought to make sense of the end of life. In one of his final entries, when he knew that death was fast approaching, Stuntz wrote:
More and more, I’ve come to see my cancer’s natural progression as containing within it great gifts. Cancer steals life, but the theft is slow and happens in stages. None of it catches me by surprise, for which I’m thankful. I’m even more thankful to have the opportunity to finish some work and, especially, to do things for my spouse and our kids that I might not have done had I expected to live a long time yet. Life feels more precious than it did before, yet I don’t feel the need to cling to it as much as I did before. Whatever happens with the course of my treatment—maybe the next set of films will be better; maybe not—I’ll be fine. God is good.
Stuntz mentioned “some work” that he was grateful for the opportunity to finish. The work in question is The Collapse of American Criminal Justice, and it is the most important book about law in the United States published in the past thirty years.
It is impossible to overstate the ambition of Stuntz’s undertaking. The book’s opening sentence reads, “Among the great untold stories of our time is this one: the last half of the twentieth century saw America’s criminal justice system unravel.” The imprisonment rate in the United States, at 506 per 100,000 in 2007, is much higher than it has historically been, and is closer to Russia’s rate (513) than Western Europe’s (Germany’s is seventy-four and France’s seventy-two). The black inmate population was seven times higher in 2000 than in 1970, reaching a rate of 1,830 incarcerated per 100,000. That figure, Stuntz writes, “exceeds by one-fourth the imprisonment rate in the Soviet Union in 1950—near the end of Stalin’s reign, the time when the population of Soviet prison camps peaked.” Stuntz contends that “the criminal justice system is doing none of its jobs well: producing justice, avoiding discrimination, protecting those who most need the law’s protection, [or] keeping crime in check while maintaining reasonable limits on criminal punishment.”
Preoccupation with the shame of America’s criminal justice system is usually a liberal’s burden; conservatives typically double-book the cells and cheer at the mention of Rick Perry’s record-setting number of executions in Texas. Well before Tea Partiers hooted in support of the death penalty at a Republican presidential debate in the fall, Republicans had claimed the mantle of the “law and order” party, whose standard solution to crime was to lock more people up. Stuntz has little patience for this type of rhetoric, which he calls the symbolic politics of crime. The Democrats play at symbolism too, of course. Shortly before the New Hampshire Democratic presidential primary in 1992, Arkansas Governor Bill Clinton took a detour from the campaign trail and flew home to oversee the execution of Ricky Ray Rector, a brain-damaged black man convicted of murdering a police officer. The ghastly stunt worked; Clinton overcame a poor showing in Iowa to place second in New Hampshire, becoming the Comeback Kid. Politicians today court voters “not by fighting crime but by talking about it,” Stuntz writes. The talk is cheap in every sense of the word.
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The Collapse of American Criminal Justice asks what went wrong and how it can be put to rights. Stuntz covers much ground and floats many reforms, but his answer is two-pronged. The first part of it is structural: “local democracy” must be restored to the criminal justice system by reducing plea bargaining and holding more jury trials—and the jurors must live in the same communities as the victims and the accused. The second part of Stuntz’s answer is technical: he argues that we must turn away from the law of criminal procedure—broadly speaking, the guarantees of the Bill of Rights like the right to counsel and the freedom from unlawful search and seizure—and toward the substantive law of equal protection, which the Supreme Court left for dead during Reconstruction. The former proposal is an arresting insight that seems broadly correct and broadly unobjectionable (except to prosecutors). The latter is as provocative as anything you will read from a serious legal commentator, and raises many problems. Both proposals will be probed and tested by scholars for years.
In a sweeping analysis that jumps through various eras in American history, Stuntz argues that the regional justice systems of the nineteenth century are proof of the signal importance of the jury trial. In the years between Reconstruction and the Great Depression, the Midwest and Northeast had large police forces, frequent jury trials, low crime rates and low inmate populations. To Stuntz, the combination is the model of a successful justice system. Jurors were free to acquit—and frequently did so—based on generic arguments that the crime was morally excusable or justified (for instance, because it was committed in self-defense), or that the accused did not act with malicious intent. Most important, police, prosecutors and jurors frequently came from the same communities as the perpetrators and victims of crimes. Rather than entering a justice system of outsiders, the accused faced their peers.
In many ways, the justice system in the nineteenth-century South was the opposite. Police forces were smaller, and crime rates and inmate populations were higher. As for the composition of juries:
Blacks and poor whites were the groups most often victimized by southern crime and most often subject to southern punishment, but blacks had no influence over southern laws or southern courts, and poor whites had little. Instead, the South’s formal justice system was governed by those who least needed its services and least depended on its fairness.
In consequence, blacks found themselves at the mercy of white policemen, prosecutors and juries. (Outside the formal justice system, of course, they faced lynch mobs.) Police and prosecutors ignored crimes by whites against blacks like Emmett Till, while white juries convicted blacks like the Scottsboro boys on the flimsiest evidence.
Stuntz links the modern justice system to that of the nineteenth-century South. Today many criminally accused—especially minorities—continue to be judged by outsiders rather than one another, he argues, and this deprives the justice system of legitimacy. Political clout lies disproportionately in the hands of majority-white suburbanites rather than majority-black inner-city residents, and jury pools are typically drawn countywide. This means that white voters elect white attorneys who prosecute black defendants, who in turn face judgment by white juries. The decision-makers have little stake in how the justice system works. To them, Stuntz writes, “crime is an abstraction.”
With its assumption that members of a particular race think alike and will acquit their own, regardless of the evidence, this argument risks reducing jury behavior to tribalism. Stuntz pre-empts this objection on two fronts. The first is data: his analysis does suggest a historical correlation between representative juries and lower conviction rates. Courtroom practice bears out this finding, and any litigator will tell you that jury selection is indeed a crass business. The lawyer for each side wants the jury box to look as much like his client as possible in terms of income, geography, gender and race. But Stuntz concedes the limits of the data, not to mention the impossibility of isolating jury demographics as the sole determinant of conviction rates. Therefore, his second point is rhetorical—and the rhetoric is anathema to most conservatives. Jurors drawn from the communities affected by crime, Stuntz argues, are desirable because they exhibit an empathy in their decision-making that unrepresentative juries often lack. He contends not that representative jurors simply acquit those who look like them and convict the rest, but that they bring a measure of understanding, common sense and mercy to the enterprise of pronouncing judgment.
Residents of all neighborhoods, safe or dangerous, face two conflicting pressures, according to Stuntz. On the one hand, they want crime-free streets. But on the other, they do not want to see their sons and husbands sent to prison and their communities destroyed. “Local political control over criminal justice,” Stuntz writes, “harnesses both forces without giving precedence to either.” Jurors who judge their neighbors send dangerous felons away, but at the same time are more receptive than outsiders to defense arguments that raise doubts about the culpability for the charged behavior. They acquit more often, and in the right cases—especially where the defendant’s conduct is excusable or not morally blameworthy. When voters and officials outside the affected communities assume power over criminal punishment, this equilibrium disappears. As Stuntz puts it, “anger and empathy alike are weaker forces when they come from voters who see crime on the evening news than when they flow from voters’ lived experience.”
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