Crime and Punishment: On William Stuntz
Jury composition does not matter if there are no jury trials. Stuntz points out that over the past few generations, the jury trial has become a rare occurrence, a key cause being the rise of the plea bargain. Such agreements, in which defendants forgo trial in return for a lesser sentence, used to be a resource-saving shortcut in easy or straightforward cases. Now they have replaced trials as the central mechanism of separating the guilty from the innocent: today more than 95 percent of felony convictions in metropolitan counties are the result of guilty pleas.
Stuntz explains that four trends contributed to the rise of the plea bargain. First, funding for prosecutors and defense attorneys did not increase commensurate with crime during the crime wave of the 1960s. For cash-strapped district attorneys and public defenders, plea bargains were much faster and easier than trials, leading to what Stuntz calls “assembly line adjudication.” Second, early in the twentieth century, criminal laws became broader, encompassing more conduct and making convictions easier to obtain. This gave prosecutors more leverage in plea negotiations. Stuntz explains the history in a fascinating chapter on the “culture wars” over lotteries, prostitution, liquor and other vices. Third, the war on drugs gave prosecutors a fallback crime to charge if they could not prove all the elements of a violent felony, rendering drug convictions a proxy for more serious but unproven crimes. And fourth, the growing popularity of three-strikes laws and mandatory-minimum sentences stacked the bargaining process in prosecutors’ favor. It is no exaggeration to say that with the ability to threaten life sentences for sometimes minor crimes, prosecutors became something like extortion artists.
The institutionalization of the plea bargain, Stuntz writes, produced a system of official discretion rather than law. Prosecutors have all the power, and they decide which laws to enforce and when. Stuntz illustrates the point with the elementary example of highway speed limits, which many drivers regularly exceed. In such a system, police officers could stop almost anyone, so they must decide whom to stop. Granted unlimited discretion, they often discriminate. And in Whren v. United States (1996), a decision Stuntz deplores, the Supreme Court held that so long as an officer has cause to believe a driver violated a traffic law, the officer can pull over the driver even if his real motive is discriminatory.
Stuntz suggests another, more controversial cause for the rise of the plea bargain. The Warren Court’s criminal procedure revolution of the 1960s aggressively interpreted the Bill of Rights—especially the Fourth, Fifth and Sixth Amendments—to provide strong protections to criminal defendants. The most famous cases are Mapp v. Ohio (1961), which excludes from trial evidence obtained through illegal searches; Gideon v. Wainwright (1963), which guarantees the right to counsel in felony cases; and Miranda v. Arizona (1966), which requires police to apprise suspects in custody of their rights to counsel and against self-incrimination. Stuntz contends that these requirements made trials more expensive, and thus led prosecutors to seek plea deals more frequently.
Stuntz is right that when the price of something rises, people begin to look for cheaper alternatives. But it is not possible to gauge in any empirical way the conscious and unconscious decisions of thousands upon thousands of prosecutors in response to the Warren Court’s collective jurisprudence. Stuntz writes in the language of economics—incentives, agency costs and marginal utility—which, when applied to law, can whiz past questions of causation like rocks skipping over calm water. To be fair, he deserves credit for expressing caution about which trends produced what results, displaying a humility uncommon in the fields of law and economics.
There are other problems with the theory that the jurisprudence of the Warren Court produced more plea bargains. The impact of some Warren Court decisions has been more costly trials, but the price is worth paying. A criminal trial is more expensive when the defendant has counsel than when he does not, but only in the sense that buying something is more expensive than stealing it. Nevertheless, constitutional protections do not always increase the cost of criminal litigation. Miranda warnings are cheap to give, and most defendants talk anyway. Suppression hearings, in which defendants seek to exclude unlawfully obtained evidence, happen before trial, and plea deals are frequently struck after such hearings, not before. And many costs have nothing to do with the Warren Court. Much of the complexity of criminal litigation stems from the Federal Rules of Evidence and the Federal Rules of Criminal Procedure, not the Warren Court’s interpretation of the Bill of Rights.
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This talk of the Warren Court leads to Stuntz’s second major point, that American criminal law took a wrong turn in the 1960s. It is commonplace for conservatives to attack the Warren Court’s criminal procedure decisions as misguided or judicially activist. Two standard arguments are that the exclusion from trial of illegally obtained evidence allows the criminal to go free when the constable blunders, and that the Court invited a political backlash that produced Richard Nixon, George Wallace and Ronald Reagan. (These arguments rarely make clear why we ought to blame the proponents of strong civil liberties rather than the demagogues who exploited fear and racism for political advantage.) But Stuntz’s critique of the criminal procedure revolution—like most of his arguments—is more novel and ambitious than the typical conservative commentary. He contends not that the Warren Court was too radical but that it was not radical enough.
Stuntz levels three criticisms at major Warren decisions like Mapp, Gideon and Miranda. First, he portrays them as classic examples of the law of unintended consequences. The decisions were meant to level the playing field between white and black, rich and poor. But by creating a complex series of procedural requirements, they placed new emphasis on the quality of lawyers; only the best and most expensive could navigate the maze. Second, the Warren Court redirected the focus of criminal trials away from the guilt or innocence of the accused and onto the conduct of police officers. Third, the criminal procedure rules enforcing the Fourth, Fifth and Sixth Amendments began to seem like empty proceduralism. (The right to confront witnesses, for instance, often focuses juries’ attention on the testimony of the forensic specialist who analyzed physical evidence rather than on the evidence itself.) Stuntz seems exasperated with procedure and eager to move the debate into substantive criminal law—two historically distinct fields that The Collapse of American Criminal Justice helps to synthesize and unify. Over time, the “relationship between the law of criminal procedure and a more just criminal justice system,” he writes, “grew ever more indistinct. The law was its own justification.”
One counterargument is that fair procedures help produce fair outcomes. When an appointed defense attorney sleeps through his client’s trial, the trial’s result becomes unreliable. A confession obtained through coercive interrogation or outright torture—as was common throughout the Jim Crow South and in Chicago’s notorious Area Two as late as the 1990s—is as good as no confession at all. We recoil from trial procedures that prevent defendants from confronting their accusers and viewing the evidence against them, as the Supreme Court powerfully made clear in Hamdan v. Rumsfeld (2006), which invalidated the military commissions at Guantánamo Bay. Procedural fairness not only produces faith in the outcome of individual trials; it reinforces faith in the legal system as a whole.
Stuntz contends that the Warren Court’s mistake was “to tie the law of criminal procedure to the federal Bill of Rights instead of using that body of law to advance some coherent vision of fair and equal criminal justice.” In particular, he mourns as the road not taken the Fourteenth Amendment, which provides that no state may “deny any person within its jurisdiction the equal protection of the laws.” The Equal Protection Clause lived a brief but mighty existence during Reconstruction. It underpinned legislation like the Enforcement Act of 1870 and the Ku Klux Klan Act of 1871, through which federal officials aggressively prosecuted race terrorism and voter suppression. Prosecutions under these laws came to a halt in 1876 because of two Supreme Court decisions. United States v. Cruikshank held that the Equal Protection Clause applies only to government actors, not private citizens like Klansmen. And United States v. Reese required a showing of discriminatory intent to make out a claim under the clause—a showing that is all but impossible to make in suits against institutions rather than individuals. Both the state action doctrine and the intent requirement persist to this day.
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Most legal progressives would follow Stuntz this far; Cruikshank, Reese and the death of equal protection are, after all, standard fare in constitutional law classes. Equal protection is a substantive principle against discrimination, whereas the Bill of Rights establishes procedural protections; the two seem made to complement each other. But where liberals would supplement the Bill of Rights with a reinvigorated Equal Protection Clause, Stuntz would travel back in time and replace the former with the latter. This is an astonishing claim, and Stuntz takes it to its logical conclusion: he blames not Earl Warren but James Madison for the state of criminal procedure law. By its plain text, he concedes, the “Bill of Rights’ clear focus is procedure,” and the “Constitution is not written with substantive criminal law in mind. More’s the pity.”
A vigorous equal protection principle in criminal law, Stuntz writes, would allow judges and juries to attack the substance of unfair or discriminatory treatment rather than rely on prophylactic procedures that struggle to protect against it. For example, in Duncan v. Louisiana (1968), a black man was charged with battery for slapping a white child’s wrist during a disagreement. The Supreme Court reversed his conviction because he received a bench trial rather than a jury trial. The state shuffled its procedures and convicted Duncan a second time. Rather than using the easily circumvented procedure of the Sixth Amendment’s jury trial right, Stuntz argues, an Equal Protection–based court would have thrown out the conviction on its face because it was nakedly discriminatory: no white person would have faced such a charge. This is where Stuntz believes the Warren Court was too timid. The Court tethered constitutional law to the text of the Bill of Rights, whereas Stuntz would give judges almost unlimited discretion under the broad and vague Equal Protection Clause to stomp out unfairness and discrimination wherever it appears.
One hardly knows how to respond to such breathtaking claims. Three points seem worth noting. First, as Stuntz acknowledges, the text of the Constitution is against him. The Bill of Rights is the most cherished section of the oldest written constitution in the world, and it says what it says. Second, Stuntz’s alternative to the Bill of Rights—a substantive “equality” principle based on the Fourteenth Amendment—is not well developed, either in the book or in Stuntz’s scholarly articles. All that discretion is a frightening thing: not all judges and justices are genuine foes of discrimination like Stuntz. The theory is little more than a wistful reflection on what might have been had the Supreme Court followed an alternate path. Sadly, one imagines that if Stuntz had lived a few years longer, he would have been able to develop his arguments more fully. Third, and most important, Stuntz seems to think that the purpose of the Constitution is to enact the most efficient system of criminal justice, or the one most successful at balancing crime and punishment.
But that isn’t the purpose of the Constitution. Humble as Stuntz was, his scholarship demonstrated some of the arrogance of the law and economics movement, which is so pleased with its strides toward empirical truth that it frequently misses the big picture. The Constitution, and more specifically the Bill of Rights, is a guarantee about the type of society we live in, one where the poor are given lawyers and the police cannot barge down doors without a judge’s warrant, efficiency be damned. Judicial decisions affirming these principles slow down prosecutions and cause political actors to respond in unpredictable ways. But they do not lead inexorably to institutional racism. Long before considering Stuntz’s bold medicine, we must try less dramatic reforms like ending the war on drugs, providing better funding for prosecutors and defense attorneys, and repealing mandatory minimums and three-strikes laws.
Stuntz’s despair over the criminal justice system must have been deep indeed to have led him to forswear the Bill of Rights. His unconventional proposals suggest that we must abandon all constraints if we hope to find a solution to the problem of race and law. The burden of proof on such a motion is almost impossibly high, and Stuntz does not clear it. Yet if his attack on the Bill of Rights goes much too far, many of his other insights seem accurate—particularly his criticism of prosecutors’ overbroad discretion. Reforms to one side, rarely has one volume synthesized and revealed so much about American law. The scourge of racism in our justice system persists. Those who fight it must read this book.