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.