William J. Stuntz was the Henry J. Friendly Professor of Law at Harvard University before he succumbed to colon cancer at the untimely age of 52. His book, The Collapse of American Criminal Justice was thus, alas, published posthumously, and so we have lost the chance to hear the man defend his work in open court, to use an apt phrase.
The extremely prominent and prolific 7th Circuit Federal Court of Appeals Judge, Richard A. Posner (who seems to me to be on a leftward drift as of late, but who is also – almost uniquely amongst top tier American public intellectuals – allowed to muse on all sorts of forbidden subjects and use taboo trigger words, e.g. ‘eugenics‘), reviewed the book about two years ago in The New Republic. That’s when I first picked it up, and I’ve been revisiting it periodically ever since. It’s still an important and influential book, both for its strengths and weaknesses, it is extremely well-referenced with its 80 pages of fine-print end-notes, and since some recent discussion around these parts has focused on criminal matters I thought I should get busy summarizing the book and its thesis.
Posner’s review gets right to a correct point which is that Stuntz’s book is severely mis-titled. The American criminal justice system is not collapsing at all and if anything is at a peak of power and stability (outside the special case of California, anyway). But power and stability does not necessarily mean ‘legitimacy’ and in fact, that stability is exactly the problem if you abhor the present condition of the system. The progressives tend to alternate between outrage and bitter resignation at the current sad state of affairs. In other words, Stuntz left out the word ‘moral’ before ‘collapse’, and to him ‘moral’ compels much less incarceration and especially many fewer black men in jail. But without, somehow, any resulting increase in crime. No one seems to have figured out how to do that, but that doesn’t stop anyone from trying because it’s seen as such as moral imperative.
The issue has been both a thorn in the side and a rallying call for the American left for generations now, but it’s proven an especially hard circle to square. If you go back to the 1950’s and follow the intellectual, jurisprudential, and academic history of the issue, you’ll find – as with feminism – various ‘waves’ of broad legal strategies attempting to do something about it, most of which have – as with dozens of failed educational fads to close ‘the gap’ – ended up crashing against the rocks of stubborn reality.
It’s become increasingly obvious over the last decade that the last wave seems to have completely petered out into a ‘new normal equilibrium’ with the highest rates of black incarceration in American History.
The Law Is A Harsh Mistress
Personally, and deriving from my past experience as an attorney, I am disturbed and troubled by my personal observations of the criminal justice system as well, though for different, racially-indifferent reasons that aren’t obsessed with the over-representation of one particular ethnicity. A ‘new equilibrium’ pits the efforts to expand the rights of the accused and reduce incarceration against various opposing trends and forces. And one of those trends that Stunz highlights has been to greatly amplify and expand the leverage and coercive power of prosecutors and police well past the point of prudence and reason in order to enable them to win cases.
This is especially the case with regards to the severity of modern sentencing, which is simultaneously necessary for public safety, but at the same time offends our modern sensibilities and intuitions to the point of seeming instinctively to be wildly disproportionate to many of the underlying offenses, regardless of their utility in producing socially beneficial deterrence and incapacitation. An excellent chronicler of such matters is Ken White over at Popehat – here is a great example in his latest post – and I highly commend all his writing to you all.
I agree with Stunz and must concede the point that these expanded powers and immunities, while clearly prone to all sorts of abuse and tragic errors, are probably necessary to win cases that need to be won and, most of the time, should be won, and furthermore would have been won easily, quickly, and cheaply and without resort to coercive leverage prior to the Warren Court reforms, but which now require these extraordinary countermeasures.
So I am torn, along with a lot of other informed observers of the scene who try to stay neutral or balanced. They say that fear comes from ignorance, but the more you actually witness the inner workings of the system, the more justifiably terrified you become of the nightmarish prospect of ever being caught up in it.
The great, tyrannical evil is the possibility of throwing an innocent person into a process so vicious and one-sided that it is guaranteed to temporarily destroy the normal life of any ordinary individual (and their family) regardless of whether they win or lose, and so threatening with such intense pressures that it practically coerces any normal man into a false confession plea deal. That being said, outside of a few special categories of crime, I believe this to be an extremely and increasingly rare scenario because of the systemic pressures to select only the most clear-cut of cases for prosecution. Still, it should make everyone a little uneasy.
So, on the one hand, I almost always want Ken White’s recommendations and wishes to be implemented. On the other hand, I fear that if they were, the cost would be substantial and prohibitive, as it was during the last phase of leniency, which we’ll discuss shortly.
Logjam And Breakout
Lots of smart people are trying to find a way out of this awful jam, but without much luck. An obvious suggestion could be, “Just go back to the way things were before the Warren Court.” And Stuntz gives some support to that notion. But mention that to any lawyer and watch their eyes pop out of their skull to get a measure of the likelihood of that prospect – our system of law simply can’t evolve in that matter. Also, It’d be dishonest to say that some of the Warren Court’s reforms weren’t genuine improvements, so it’s difficult to separate the gold from the dross, or even to come to agreement on which is which.
So, returning to those progressives who are particularly concerned about racial statistics, I think you you can appreciate that there’s a certain desperate frustration and hunger for some new ideas and on how to re-attack the problem. And, you would think, that the repeatedly reemerging need for re-attack would clue one in to the fact that one doesn’t really understand the problem at hand (at least when one isn’t actively attempting to avoid reporting it). Posner:
Crime rates were very low during World War II (because so many young males were in the armed forces and unemployment was virtually nonexistent) and its immediate aftermath, and as a result the prison population fell. Crime rates remained low until the 1960s, when they took off. The reasons are unclear, [emphasis added] but seem related to the disorders of the 1960s and early 1970s, in particular the growth of black militancy, which Stuntz argues caused the police to reduce their presence in black communities, with the result that black-on-black crime surged.
‘Took off’ is putting it very mildly, and that bolded excerpt seems like something you’d really want to clear up before going off half cocked on your latest crusade.
Insanity, Einstein said, is doing the same thing over and over again and expecting different results. That would reflect either an inability or refusal to learn from experience. But what do you call it when you have plenty of clever, motivated people who are pretty good at coming up with creative and novel ways of attacking the same impossible problem, and who can make fame and fortune for themselves regardless of actual results, yet are unable or unwilling to ever acknowledge that the problem itself is insoluble by its very nature because such acknowledgement is taboo?
You call it, ‘America’.
The United States Government spends increasing portions of its revenues buying the latest version of snake-oil from snake-oil salesmen with both sides self-delusionally believing the stuff could be real medicine to regrow that amputated foot. Some bright fellow says, “Hey, let me try radar and this time we’ll surly locate El Dorado.” Another shrewd merchant claims his new computer can solve the coordinates of the Holy Grail, and yet another is sure he’s finally discovered the perfect baits for unicorns, snipe, and wild geese.
One could have simply built an El Dorado with the treasure that’s been squandered in its illusory pursuit. But we won’t give up on El Dorado no matter how many times we fail because its so politically useful; so the market for El Dorado hucksters remains perpetually brisk.
In the world of American law, that tends to involve some clever Academic constructing some seductively persuasive grand new perspective on Constitutional jurisprudence that gives like-minded judges the intellectual cover to implement the tactics of the latest wave in the hopes that this time is different and the great goal will finally be met. And Stuntz was trying to be that clever Academic, and TCOACJ was supposed to make the case for his revolutionary proposal.
But there is no shortage whatever of brilliant progressive lawyers (quite the contrary) who have been trying to do this for years, but without any real intellectual progress and, in terms of actual policy, all to no avail. What created the logjam? We’ll get to that.
But in the meantime, what makes Stuntz’s approach new? A breakthrough and good example of ‘out of the box’ thinking.
The box, in this context, is that the progressives are supposed to be big fans of the revolution in criminal procedural protections begun by the Warren Court. Progressive lawyers, if they have anything bad to say about any of those decisions, it it only that they didn’t go far enough. The actual attacks against the legal innovations have traditionally come from the conservative right.
The combatants fought it out in the courts for two generations and after a period of real uncertainty, controversy, and excitement, eventually, the bulk of the dust, and the law, had settled. The liberals knew which side they were on and, over time, had gleaned the entire field of every argument that could be made in support of that position. The adversaries ended up entrenched and unable to make more progress. Logjam.
So Stuntz did the unthinkable and decided to argue for reversal of the Warren Court’s holdings and attack them from the left – judging the emphasis on nationally-uniform (‘incorporated by the 14th Amendment’) procedural rights and protections that form the core of criminal legal practice today to be misguided from the very start.
Not to mention a great strategic blunder because, Stuntz claims, the predictable increase in crime led to a political backlash and strenuous efforts in the other governmental branches to offset the effects of the Supreme Court’s impositions, vastly increasing harsh sentences and creating a multiplicity of ‘avenues of approach’ in which prosecutors can always get you for something and then send you away for a long time.
Or, more likely, credibly threaten you with all that, backed by the awesome power of the state, thereby coercing you into cooperating and/or pleading guilty. As I mentioned above, an ordinary man who fights and wins in court these days may still find himself and his life ruined in the punishing process, so the pressure to settle or submit at the start is heavy indeed. I’d guess the founders didn’t exactly intend for this result.
Adaptive Modifications of Progressive Ideology
Indeed, Stunz takes up a whole suite of positions at odds with legal views which have become practically holy in their sacredness to progressives, and which are usually thought to be ‘of the right’, but used by him in order to argue for a progressive agenda. He hopes these positions will appeal to conservatives and that progressives will realize the clever exploit and get on board as well.
For example, he criticizes the nationalized universalism of an incorporated 14th Amendment and its inflexible requirements for Equal Protection, and instead deploys a ‘conservative’ argument in favor of more local particularism, variation, and independence. Whereas progressives have usually argued in favor of adding countless new requirements and intensive procedural protections to ensure the system guards against even the most remote possibilities of error, Stuntz says we should look back and reestablish simple, quick and cheap trial procedures. Indeed he hopes this will fool conservatives into supporting his proposals when they conclude that they comport with their ideological principles but while failing to conduct any analysis of the underlying ulterior motive and the likely consequences. My sense is that had Stuntz lived, the conservatives would have indeed fallen for his ploy.
These doctrinal ‘reversals’ make sense if one is fairly cynical about the the nature of the ideological commitment of progressives any particular democratic or legal procedures – ‘whatever the consequences’ – as opposed to being merely malleable and situationally opportunistic means to achieve higher order political ends and moral imperatives.
A century ago, when local communities weren’t prosecuting enough to protect their black populations, progressives argued for nationalization – expanded state and federal controls, mandates, centralization, and supervision to achieve ‘uniformity in equal protection’. Now that that centralization causes too many imprisonments, it’s suddenly time to revive our respect for the under-appreciated merits of localism, particularism, and federalism. Fourteenth Amendment incorporations, revered by nearly all progressives today (except, revealingly, in the case of the right to bear arms), were nevertheless reviled during the Lochner era when they protected ‘liberty of contract’ and stood in the way of establishing employment-related rules and the regulation of economic activity.
I think the particular political phenomenon on display here is worth some study. Progressives are always the party pushing some change in policy as a reform calculated to further the achievement of their prime ideological imperatives. I’ve never met a ‘content’ or ‘satisfied’ progressive who mostly wants things to stay the way they are, the way they were when they grew up. There is always some latest political crusade to eradicate that damn stubborn oppression and inequality – to be fought with just as much passion as the last, no matter how trivial the cause, or far out on the diminishing returns curve one finds it.
The fact that this crusading characteristic is absolutely inherent in progressive politics, combined with the glorification of certain favored historical heroic narratives, gives ambitious or status-seeking progressives a strong incentive to identify a new crusade (usually as an extension of territory from the last campaign) and to signal that they support it more intensely and are more fully committed to its principles than others in the in-group. There is no other way to feed this slouching beast of the future than by constantly identifying something about the present and the past that can be devoured. Eventually, there’s nothing left.
True, they can be almost reactionary conservative apologists for the status quo when it is part of the traditional progressive platform or power structure and comes under attack from the right. But since so much of what is established today is yesterday’s progressivism, it’s almost inevitable that a reformer trying to make a name for himself is going to have to attack an old progressive position on some subject if that policy was not helpful but instead delivered us into some frustratingly unsuccessful dead-end.
That this doesn’t happen more often or with greater rapidity is due to ideological inertia (especially for the older generation), the time it takes to get over denial and really accept one is not making progress, and the fact that there are only a few influential writers who are particularly skillful at recognizing weak-positions and dead-ends and advocating for the surprising shifts in progressive ideology needed to move around those obstacles. There is a short amount of time when the shock of contradiction of long-standing principle seems a betrayal, but very quickly everyone sees the utility of the new approach and gets into line. Click, click goes the ratchet, and the clicker wins his fame. This is what Stuntz was trying to do.
Additionally, Stuntz’s greatest trick of all is making his seemingly radical proposal appear traditional – indeed, merely a restorative counter-reformation reversing the genuinely radical and aberrant missteps of the recent past. And to do that he’s going to have to give a particular kind of Historical presentation, which I’ll summarize as well.
But let’s get back to that logjam. I’ve hinted that previous iterations of progressive efforts at reforming criminal jurisprudence, regardless of their objective merit in terms of making the procedures of the justice system more fair and accurate (if also lengthy and laborious), tended to repeatedly crash against the rocks when it came to achieving the particular goal of statistical racial equality in sentencing. What went wrong?
Keep in mind that we are not talking merely about the racial incidence of crime. There are always plenty of fanciful, elaborate, and frankly unfalsifiable theories about the dark forces of poverty, oppression, and racism that are purported to either excuse or shift blame for differential criminal rates between ethnic groups. I’m with Mencken when he says, “The common argument that crime is caused by poverty is a kind of slander on the poor.” And anyway, the theories run into some uncomfortable and difficult to explain territory when looking at disparities in non-economic crimes such as rape, other forms of sexual violence, and pure battery without mixed motive.
If progressives really believed that racial incarceration disparities were due entirely to the original incidence of criminality and that the courts could be relied upon to produce systemically fair results, then they would deem it ‘just’, stop criticizing the criminal justice system, and focus on preventing the origin of those disparities in criminal activity itself.
But that’s not what they believe. They believe that whatever population group variance exists in the conduct of criminality, that the criminal justice system also systemically discriminates against certain ethnic identities, mostly against blacks, but also Hispanics. If nothing else, then the court system acts as racist amplifier, magnifying the underlying bigotry of the system responsible for the distribution of defendants. There is so much racism and bigotry baked into the cake of society, the police, the jurors, the prosecutors, and so on, that like an oil spill it finds its way into every nook and cranny of a trial in which it can make itself felt.
This theory holds that it is this infection which significantly contributes to the much larger number of blacks in jail. Notice that no one ever deploys such theories to account for the massive gap in the numbers of male and female jailbirds. In that case, differential inclination to criminality is so obvious that it is merely accepted by everyone to account for 100% of the discrepancy. But if one thinks about this in terms of things like testosterone levels then it ventures once more into uncomfortable territory. Perhaps personified sexism doesn’t feel the need to throw women in jail like racism feels the need to incarcerate blacks, for whatever reason.
So, the key assumption at work was that racial disparities in incarceration were due to the contamination of the system with racial animus, and that if you could only tweak the system with a hundred minor and a few radical modifications, you could wring all the bias, prejudice, bigotry and racism out of the system. If you could remove every bit of unnecessary discretion or coercion, if you could give every defendant every benefit of the doubt on every procedural technicality, if you could force prosecutors to put on only the most ‘perfect’ of cases, then what you would get is ‘justice’, which it was assumed would imply ‘statistical equality’.
But even with all these efforts, the waves kept crashing on those rocks, and statistical equality – our El Dorado – was never achieved (far from it). If you fight a war against human variability then it can never end. Now what?
Well, one can conclude that either (1) The system is substantially just and fair, and blacks simply, for whatever unfortunate reasons, commit a lot more crime than other racial groups, or (2) Assume that justice simply must require a dramatic reduction in black male incarceration, and since it is now clear that this cannot be achieved by amending the procedures of the administration of justice for increased fairness, then it can only be achieved by whatever other means or techniques which can be predicted to result in reduced imprisonments, regardless of justice, fairness, or consistency.
– Juries –
As for those other means, one could, for example, occasionally put one’s thumb on the scales a few times to help a brother out. By, for instance, allowing peremptory challenges to jurors during voir dire without need for justification or explanation, except for those suspected to be racially-motivated which has been law everywhere in the U.S. since Batson v. Kentucky (1986).
But there’s a big, ugly, and difficult to discuss problem with Batson, which emerges from the inherent problem of all jury trials – which is the jurors themselves. The ideal jury is a set of ideal judges – disinterested, neutral, impartial, loyal to the letter and spirit of the law, humane, wise, judicious, educated, intelligent, rational, reasonable, well experienced of various life circumstances, a good judge of character and accurate detector of insincerity, and so on.
An actual jury is a set of individuals who are usually each as far away from being ideal judges as you can imagine, and collectively a catastrophic parody of balanced, rational decision making. To anyone who’s ever seen how the sausage is made, the only plausible defense of the jury system is ‘the optics’, that is, it is a form of semi-effective public-opinion management that puts the public’s stamp of ‘legitimacy’ on the results of the process. This is so people don’t start thinking that since the judges are in the pay of the government too, that the system is simply a tool used by the powers that be to enable them to railroad anyone they want to. Any similarity or analogy to Democracy in general is purely coincidental, right?
The awfulness of your typical jury means that individuals have certain predispositions and biases to vote in certain ways, which gives each attorney an incentive to try and stack the deck in their favor, but also a pressing need to eliminate incorrigibles prejudiced against their side. Since the federal system requires unanimity for criminal convictions, and the state systems all so or nearly so, then a single, stubborn holdout on the side of the defense can cause a mistrial – which gives rise to a certain asymmetry.
The defense counsel is desperately looking for that single holdout, and needs him to achieve justice if the rest of the jury is biased against their client, and the prosecutor desperately wants to remove those holdouts and needs the ability to do so if they are biased in favor of a genuinely guilty accused. Peremptory challenges are a way of giving each side a way of preventing the other side from stacking the deck, but are particularly necessary for the prosecution.
So you have two potential problems. The first problem is ubiquitous juror ethnic bigotry. If the prosecutor figures that every white man in town will always convict a black defendant, no matter how lousy the case, then he will try to pack the jury full of white men and abuse his peremptory powers to remove every black person from the pool. Batson was at least purported to be an attempt to address that particular danger of injustice. But that potential is always reliant on certain conditions of bigoted opinion being almost unanimous in a local community, and which I think it is fair to say is much less likely to occur these days (which is all to the better), though it remains a possibility.
The other problem is occasional juror ethnic solidarity. If the defense counsel figures that every black person in the local community will almost never convict another black person, regardless of how strong the case is, then he has any easy path to obtaining his holdout. The problem with Batson is that even if this is a true fact, and the prosecutor knows this, then he still cannot remove the biased juror on the basis of this solid empirical correlation because it is a privilege now forbidden to him.
Now, all this is not to minimize the difficulty or exaggerate the likelihood of a sole holdout being able to actually hold out against the rest of the members. The influence of the social dynamics and the loss of personal time puts a lot of pressure on a lone contrarian to change his mind, and most people succumb to that pressure, regardless of their real views on the merits of the case, or the strength of their biases. However, if you can get two such individuals on the jury, then your odds of them bolstering and reinforcing each other’s position go up exponentially; two against ten is a completely different ballgame than one against eleven. If the defense counsel can pick two likely holdouts, and prevent the prosecutor from challenging them, then he’s on his way to victory or simply surrender of the state’s case.
So, in actual contemporary practice, this is a favorite tactic used by defense counsel to prevent prosecutors from unseating prospective jurors they expect will vote in terms of racial solidarity and not in terms of the disinterested and neutral finding of facts based strictly on the evidence presented.
Perhaps you think that that the U.S. should repeal the 6th and 7th Amendments to the Constitution and do away with juries for criminal and civil trials. But juries are sacred, and anyway, the problem with America is that it has arrived at a point in its political history in which everything that might make a real difference is utterly off-limits.
Singapore, on the other hand, with its multiethnic society and high rates of co-ethnic cohesion and solidarity but inter-ethnic animus, had so much trouble with this phenomenon that it had to abolish juries altogether in order to convict any genuine criminals at all. People there tend to judge that to have been a wise and necessary move.
But what if your aims were exactly the opposite: you don’t want to convict more, you want to convict less. All of a sudden you realize that Singapore’s ‘problem‘ can be turned into your solution. To the extent that this phenomenon already occurs in American criminal courts today, if you could reform the system to guarantee that it happens even more, then you could definitely achieve less incarceration of black men.
And this is precisely Stuntz’s strategy, though he couches it in a more palatable rationale than the raw quantitative cynicism I’ve described above. As we will soon see, Stuntz will go on to defend ‘neighborhood-scale localism’ by which he really means black jurors trying black defendants from the same local area.
Stuntz is a bit too clever to say this will produce more accurate verdicts. He knows that extreme localism is usually regarded as more, not less likely to give rise to bias in several well-known ways. Defendants often request a change of venue or jurisdiction in order to secure a fair trial, because the affected locals are too passionate and emotional to be trusted to be neutral. Local jurors are easier to corrupt or intimidate, and they will have to live next to family or gang members with a mind for revenge. It is harder to find both ‘perfect strangers’ to the accused or to the witnesses, or anyone without some close connection to someone who also has been jailed – which gives rise to its own set of biases.
Stuntz knows all this, and he knows about the racial solidarity issue too (he’s counting on it). And since Stuntz expects fewer convictions to result from that solidarity, he knows that many of those found not guilty will be falsely acquitted. His main justification for this, however, is a form of jury nullification in which local juries can apply their own sense of mercy, experience, and prioritization to temper the heartless and imprecise over-activity of the prosecutors.
Which in turn reshapes the incentives of prosecutors. If prosecutors suddenly expect to lose a large fraction of their cases, and have to allocate limited resources efficiently, then they won’t pursue the more marginal ones in the first place. Stuntz will also go on to suggest that local communities pay for their own imprisonment and legal costs without state or federal subsidy (but not public defender salaries, which he says should be subsidized and should also go up). Since crime is so geographically concentrated in poor communities, it gives kind to a kind of perverse ‘starve the beast‘ logic where an overwhelmed budget creates the necessity for prudent prioritization.
His case is that since the local jurors actually live in the same community with the criminals who mostly prey on those same locals or ruin their neighborhoods, that they should thus have the power to decide these matters, and since they will the ones who bear the brunt of the cost of these false acquittals, they will thus use their street-level knowledge to wisely refrain from using them in the cases of genuine dangerousness. Well, that’s his claimed theory anyway, make of it what you will.
Equality and Justice
And all this, even if it means that similar trials in different jurisdictions of different ethnic composition will yield vastly discrepant results for identical violations of the same laws. My my, what progress we’re
unmaking towards that old chestnut, ‘Equal Justice Under Law’.
In other words, the original end was ‘justice’ with the means being ‘fair procedures’ and the assumed – almost incidental – consequence being ‘racial statistical equality’. But when that didn’t work, the new end is merely statistical equality itself, and the means will be whatever it takes to achieve that, having no relation to ‘justice’ whatsoever (though still masquerading under that false alias, naturally). “Deserve’s got nothing to do with it.”
If one transforms the perfectly respectable value of legal or social equality into the hypothesis of human uniformity – that is, empirical equality – then it not only comes into obvious empirical conflict with reality, but also into ethical conflict with actual ‘justice’; because it turns out that to pursue the goal of justice when redefined in terms of statistical equality requires a tremendous amount of injustice, when defined in terms of merit and just deserts.
Affirmative Action and Disparate Impact are merely a single species that are ideological manifestations of this entire Phylum of policy. Another recent example can be seen in the recent push by Attorney General Eric Holder, the Department of Justice Civil Rights Division, and the Department of Education Office for Civil Rights, to
abuse their authorities under Titles IV and VI of the Civil Rights Act to reduce the racial disparities in the imposition of school disciplinary actions, which resemble the ethnic distribution of crime numbers with remarkable and depressing fidelity. That’s some pretty nice federal funding you got there, shame if anything were to happen to it, or if you were to get sued and thus crushed forever by us; now lets take a lot at those numbers, shall we?
What puts the ugly lie to these efforts is that they almost never seem to identify any particular racist culprits either as racist individuals or racially-motivated policies. If some hateful teacher at the school – a closet member of the Neonazi Aryan KKK Brotherhood perhaps – is just out to get black kids, then that individual’s disciplinary record is bound to stand out from the pack, and the evil teacher can be investigated, terminated, sued, and perhaps even arrested. If a source of a considerable amount of punishment is violation of an idiosyncratic ‘no afros’ rule, then the feds could point to the policy as a mere pretext with an actual origin in racial animus.
But instead, these discipline-disparity statistics, when compared from teacher to teacher or school to school, have a stunningly low variance, and the policies are unobjectionable things like ‘don’t hit your teachers or classmates’ or ‘don’t steal from your teachers and classmates’. That’s why all these ‘settlements’ – like the gigantic multi-level fraud of Pigford – never result in anyone getting fired or even being issued a solitary letter of reprimand or concern (FOIA it if you don’t believe me), and the terms of the consent decrees are mysteriously focused on rules that have the largest impact on the numbers but not on changes in any underlying policies.
If the federal government was wrong and liable in having an 60/40 white/black agricultural loan-approval rate, but there was nothing wrong with the rules, and every federal loan officer actually issuing credit had similar approval rates, then how come these people aren’t outed as racists and punished and fired? Because, obviously, the disparate impact originated in something besides discriminatory racism, that’s why not. And let’s not even get started on the subject of housing loans.
When you can’t find any actual racism or racists to root out, but you’re just so sure the numbers simply must be wrong, then you can rationalize whatever it takes to make them come out ‘right’. To avoid federal suits, schools will have to discipline blacks much less for serious infractions – thereby guaranteeing more such infractions – and they will start harassing the white and asian members of the – now more dangerous – student body much more for trivial transgressions. Lose, lose.
What this will mean for the prospects of white and asian parents being willing to live in the ethnically mixed communities that will be implementing these new policies – and to housing prices in the few remaining neighborhoods that don’t have to – is as sad as it is very easy to predict. “How much will they pay, to stay away?” No Jim Crow era Grand Wizard could have ever hoped for as much school segregation a century hence and even in the very heart of Yankeedom.
If that’s what the progressives want, they’ll get their wish, but I’m guessing this is just one of those famous ‘unintended consequences’, just a single chess move beyond their maximum policy-analysis horizon. What they really want is for the numbers to simply go down and equalize and without everything going to hell again like it did in the 60’s and 70’s. Getting the second part to happen requires some wishful thinking about the details somehow being worked out by the best minds at some later date with a boatload of federal funding and new broad authorities to order people around. But the first, purely-quantitative step is the top priority, and that is the true agenda to which Stuntz is focusing all of his efforts, to which we will soon turn.
On The Analysis of Criminal Statistics
However, before I begin in earnest, I will mention that as time has gone by I’ve read many other sources on the evolution of America’s crime situation, and a few of them stand out as good prerequisites to properly color one’s ability to interpret Stuntz’s work as you read it. Crime is a notoriously difficult topic to study in a rigorously Scientific manner, even if the related subject areas weren’t strewn with taboo land-mines; which they certainly are.
There are countless interacting variables with all kinds of feedbacks and independent autonomous actors and institutions with their own conflicting agendas. It is ‘a simultaneous system’, the data is neither clean nor without controversy, and there are no good controls. The march of History, in particular, is not kind to any criminologist trying to extract a signal or trend discontinuity from the noise of any time-series because whole suites of seemingly independent attributes seem to change in tandem.
For example, if homicide rates drops simultaneously with four major changes in policy and jurisprudence, two new forensic technologies, three new synthetic euphoric drugs entering the black market, a doubling of the police force, a quadrupling of the incarceration rate, a loosening of border controls, a broadening and deepening of distribution networks made up of a surge in immigrants from contraband-smuggling countries, three major advances in emergency medicine, flight to the suburbs, changes in racial composition, and demographic transition to lower youth-cohorts as percentages of the overall population. All this while the per-capita affordability of some drugs has increased with the economy, the quantity demanded increased due to less stigmatization, the quantities supplied collapsed or glutted with the coming and goings of foreign wars, etc., etc. … And the question is how much credit or blame shall we assign to each important change?
Another example. Recently, Harvey Weinstein begged forgiveness for the detrimental cultural impact of all his gun-violence-saturated films by promising not to make any more but also by green-lighting a hit-job on the NRA, as opposed to one targeting the rest of his profession. Well, fine, that’s easy to do after your first billion, and I’m not persuaded at all that there’s any correlation between violent entertainment and murder rates. But if crime-studying sociologists really believed in the significance of firearm-imagery, like their frequent silence in the face of Weinstein-like statements implies, or like they sometimes say they do, then you would expect some ‘Environment of Cultural Influence’ / ‘Hollywood-Violence-Causation Index’ to be a major factor in analysis of crime trends, which it never is, so somebody is pulling our leg somehow.
The point is that regression analysis and even the most advanced statistical techniques reach past their proper limits with these sorts of complex phenomena playing out on a shifting cultural and technological landscape. Avoid simplistic models and restrain your overconfidence in your preferred ideological models; the truth is it’s a giant welter. As Posner says:
It is apparent from this important book that the causality of crime and punishment is immensely complex. Intelligent reform will require an understanding of that causality, and such an understanding cannot be obtained without statistical analysis that measures the respective weights of all the conjectured causal factors. No one has done that, though Steven Levitt may have come closest.
Personally, I don’t think Levitt got very close at all, and that’s another story. But besides purely empirical issues, there are certain ‘philosophical’ questions that arise as well. If some metric of crime is down 50%, but the resources, effort, invasions of privacy, and brute coercion necessary to police the society sufficiently to achieve that result is up 1000%, then are things getting ‘better’ or ‘worse’? And if the criminal system is expending that effort to ‘clean up the mess’, then who or what gets the blame for ‘corrupting’ the population into higher tendencies towards criminality? Put differently, if law enforcement is the brakes, then what is the gas, and how much of each is responsible for the overall ‘velocity’? What if black incarceration rises mostly because law enforcement officials now pay attention to black-on-black crime that they used to ignore for racist reasons? Is the system now more or less ‘just’? Again, a welter.
So understanding the modern history of American crime is a multidisciplinary undertaking that is, at this point, as much art as science. When exploring the subject it helps to get in the right frame of mind – like lowering the lights and putting on some mood music as a facilitator to romance. And it is, in my judgment, simply not possible to understand the motivations of key players during the period of study without walking a mile in their shoes and simulating their anxieties and concerns in your own mind.
One of the things you can do is to watch some classic films that do a good job of portraying the gritty, sleazy, increasingly crime-plagued urban scene of late 60’s to early 80’s America. Taxi Driver is one, perhaps also Death Wish and even The Watchmen or Robocop. Audiences were obsessed with and despondent over the real peril of the crime situation for a long period, and so Hollywood responded in kind, exercising, as is their wont, a little bit of their artistic license, here and there.
But books are both more realistic and more evocative, and in my opinion the best book for ‘properly setting the mood’ is The American Millstone, (An examination of the nation’s permanent underclass) which was a collection of articles published in the old Chicago Tribune in the early 1980’s and focusing on the black ghetto of North Lawndale at the moment of the very nadir of that district’s social collapse.
Another great peek into the subsequent generation of the life of the Western Lake Michigan underclass is Jason DeParle’s refreshingly honest American Dream, which provides some solid, ‘straight from the horse’s mouth’ evidence for the often vociferously denied but obviously true welfare-magnet hypothesis. That, since Shapiro v. Thompson (1969) people on government welfare know Econ-101, respond to incentives, and will thus readily pick up and move to wherever the rumor mill tells them that the ratio of benefits to cost-of-living is highest. Professorial-level Econ exists to always provide us with inaccessibly subtle assurances us that Econ-101 never actually applies when it is politically inconvenient.
Anyway, if you’re going to read Stuntz’s book, I can’t recommend strongly enough that you read Millstone and American Dream first to provide the indispensable context. Also, keep that fifth of bourbon nearby, you’re going to need it.
Now let’s dive into the book.
I. Introduction: The Rule of Too Much Law
Stuntz begins the book with the motivation for reform – a familiar but surprising mild parade of horrors about the criminal justice system. An initial claim (somewhat reminiscent of Harvey Silvergate’s thesis in Three Felonies A Day) is that there has been a breakdown in the rule of law because there are now so many criminal laws with such high maximum sentences that the system (police and district attorneys) are swamped and cannot possibly prosecute them all. That gives these government agents a large amount of discretion to decide which laws to enforce and upon whom, which leads to unjust discrimination. He says, “Discretion and discrimination travel together.” That criminal law does not therefore function as ‘law’ – predictable and consistent treatment and consequences – but as a ‘menu of options’ for police officers and prosecutors to use as they see fit.
He also introduces the ‘pendulum’ of shifts in severity that characterizes the postwar experience of American Criminal Justice, but demonstrates a kind of reverse Butterfield-effect when he says that in the 1950’s the system was made into the most lenient in the world at the same time that crime was exploding – as if this was some kind of coincidence and strategic error rather than cause and effect. But whether or not there was causation at play, the explosion of crime did eventually hit its breaking point in the early 1970’s – in New York City, the murder rate more than quintupled in the mere 22 years between 1950 and 1972, an average annual growth rate of nearly 8% – which caused a long and continuous turn towards more draconian penalties.
The year 1972 comes up again and again as a kind of high-water-mark of naive progressive policy that coincided with an almost complete social nervous breakdown with regards to exploding criminality. After that the dam holding back reactionary political pressure finally broke.
I’m increasingly convinced that the the sociopolitical dynamics of the 20th century will be remembered by future historians as being characterized by repeated premature attempts to take permanent holidays from reality. But our trust-fund vacationers are shocked to discover the bank account has gone empty and they come to realize that their inheritance, when unmanaged, did not produce enough interest to be self-sustaining. After nearly going broke pursuing paradise, they creep back, depressed and with bitter resignation, to the thankless tasks and salt mine work of governing in accordance with mere, tragic reality.
One could tell a little just-so story in a play in four acts.
The first act begins in the late 40’s and early 50’s with liberal naivete and undue optimism that imagined prison and punishment was part of the problem and lenience and rehabilitation were more enlightened techniques that would reduce brutality and discrimination as well as reduce crime.
The second act is the consequent explosion in crime beginning in the late 50’s.
The third act is the slow shift towards severity starting around 1972, and the fourth act is the explosion in incarceration in the 80’s with its partial and lagged contribution to the resulting drop in crime beginning in the 90’s and continuing to the present day – which perplexed Butterfield but not Charles Murray.
But this story isn’t exactly universally accepted. Stuntz, and many other progressive scholars, say that act one and act two were merely simultaneously occurring phenomena, with an unfortunate lack of feedback between the deteriorating situation on the streets and the political advocacy on the part of legal reformers. Act three was political opportunism on the part of the right, and Act four is wrong about causation – we don’t need to ‘keep locking ’em up’ in order to maintain order.
The effects of the timing of this historical shift on the broader culture should not be underestimated. Many neoconservatives, Irving Kristol in particular, specifically identified the disaster of the rapid increase in the criminality of their old urban neighborhoods, and the inability and/or unwillingness of liberals to do anything about it, as being prime motivations (along with progressive support for Communism) that made them realize that many American liberals were irredeemably deluded and dangerous, which in turn provided the impetus to leave the fold and switch sides. If John Lindsay had managed to keep order in Brooklyn and Harlem, would Saddam Hussein be in power today? What about The Ukraine? The world may never know.
Stuntz uses the rest of the introduction to make some other charges. One example he cites is that the rate of guilty plea convictions is at a historical maximum (over 95%) and thus far too high as a prima facie matter. However, he does this without accounting for dramatic technological improvements in the ability to deliver forensic proof of guilt through advances in biochemistry and ubiquitous digital surveillance.
There’s not much point going to trial when the fuzz has your DNA, traces of the victim’s blood all over your floor-mats, and the red-handed murder-scene selfie you posted to instagram while you simultaneously posted, “Yo dawg, just hit double digits on my murder count!” to your facebook wall. Think I’m exaggerating? Ask your local DA. One’s defense counsel is going to humbly suggest that it is in your interest to take the deal.
No one foresaw the fact that law enforcement would, spurred by the restraints imposed by reformist Jurists, and under immense political pressure to somehow contain the disaster while still operating under those constraints, eventually make use of a simultaneous boom in advances in biochemical and digital technology and discover and develop the physical tools needed to win the legal-procedural arms race with the courts.
The point is that the revolution in the Constitutional Law of Criminal Procedure meant that the Law Enforcement community and its political enablers had to build what is effectively a Police State in order to do the minimally acceptable amount of actual Policing. Both sides are at DEFCON 2 and no one knows how to deescalate that Cold War tension and get both sides to compromise and agree to a disarmament treaty. And we all pay the price for that, one way or another.
But the tools and data of that powerful Police State also makes it hard to prove a case for ‘systematic injustice’ in guilty pleas when you start digging into the incontestable facts of most of these cases.
Actually, let’s not do that, because that very politically dangerous. After all, it could almost provide high-caliber ammunition for adversaries making the exact opposite claim that, in fact, there’s no racial problem at all that is distinct from the mysterious origins of crime, and that the system is as just and fair as it ever was. The utter rarity of potential miscarriages of justice in homicide case convictions in the current system – in a country with over 40 murders a day – is the reason why the entire profession of journalism has to go hysterically crazy on the rare occasion when one even remotely plausible case of erroneous execution surfaces.
And they don’t surface ‘today’, because even after the AEDPA, capital cases can still take decades to make it through the system, so when problems or errors are found, they are discovered about crimes that occurred at least 20 years ago. Here, for example, is a wrongful execution case originating in a murder which happened 31 years ago.
The inference the article’s author would like you to draw is that this is an inherent problem with all capital punishment cases extending to the present day, and this is in fact what most reasonable people who are against capital punishment accept. They believe the system still has too high a probability of executing an innocent person. But that belief is false, yet that untruth continues to be propagated by those with an alternative, moralistic reason to oppose capital punishment, but who wish to cover their moralism with a plausible empirical objection. Too bad it’s now untrue and one cannot avoid facing the moral question head on. What makes the last quarter century entirely different from everything before 1989 is DNA.
Add that to the rest of the vast portfolio of forensic techniques at our disposal and one realizes that our era of criminal prosecution is qualitatively distinct from everything which has gone before, which invalidates a lot of traditional assumptions of ancient pedigree that were perfectly valid in their time, but no longer. Ultra-powerful forenics does to law enforcement what ultra-powerful nuclear bombs did to geopolitics – it’s simply a game changer. It’s disingenuous in the extreme to use cases from before our new age to try and ‘prove’ that we remain beset by the same iniquities.
On page 2 of the book Stuntz says there is some evidentiary support for the feeling that the criminal justice system is frequently unjust and too many innocent people going to jail and cites a report on DNA-based exonerations from The Innocence Project.
Well, Handle has direct experience working for an ‘innocence project’-like legal clinic, and I hope you will believe him when he tells you that the days of headline-worthy exonerations are over. Let me share a little anecdote with you. The first ‘innocence victory’ to which I provided assistance was the case of a very clearly guilty woman with a long criminal record who was sentenced to 9 months in jail for substantial larceny for which the evidence was good quality video of her committing the act. She nevertheless complained that she had insufficient time to confer with her public defender to participate in her own defense, which is, we pretend, a classic indicator of a risk of injustice.
The particular jurisdiction in which the crime was committed had a strange rule at the time where the amount of time the defender spent with his client was not so low so as to be considered ineffective assistance of counsel, but low enough to warrant reversal of conviction in certain circumstances. Well, lo and behold, we put the motion before the judge, and the judge set our ludicrously larcenous lady at liberty!
I was expected to celebrate my first win – ‘for innocence!’ – and I have to admit to my shame that at the time I felt proud of myself for writing a damn fine motion – which is something I now regret. I ended up feeling a bit queasy about it later, and called up the defense counsel to talk about her release. Even as her defender, he thought it was an awful judgment. She was so obviously guilty that he met with her briefly only to recommend she take the deal on offer.
He said she paid little attention to him, was rude, obnoxious, and hostile, and dismissed his attempt at imparting his advice with a, “Yeah, yeah, I’ve been on this train before, I know what’s up!” Subsequent to which she did in fact take the deal, and only later, once imprisoned and complaining about her well-deserved plight, did someone hook her up with the clinic to make a shot in the dark effort. And she hit me, and got sprung!
I doubt the victim of the theft would have been very happy to discover that outcome, but it was definitely an eye-opening experience for yours truly. Who really holds power in a society, and determines the limits of the law, when such things happen routinely? It ain’t civics-101.
At any rate, it didn’t take long to discover that, while not that egregious, 99.9% of contemporary ‘innocence’ cases work like this and exploit what laypeople like to derisively refer to as ‘mere technicalities’. Trust me, we were all desperately searching for any slight hints of actual major injustice – our path to local fame – but we almost never found any. You just can’t argue with genes, molecules, and digital data these days.
But if we can’t find them today, we still can find these cases of injustice in the pre-DNA past – which is where the innocence project’s actual headline-worthy exonerations all come from.
And if you dive into those cases, you’ll find that almost all of them fit a particular pattern:
It’s prior to 1989. A Woman claims she’s been raped by a stranger. A suspect of suitably similar appearance is found. Evidentiary samples of tissue, bodily fluids, clothing, etc. are taken, subjected only to crude chemical analysis of limited value (a simple blood type test, perhaps) but not DNA testing, but then, consistent with new best practices, indefinitely maintained and carefully preserved.
There’s a line-up, or the photograph-book version, and the woman, maybe a little shaky in her recollection as first, verifies the suspect was her assailant. The more she looks at the man or his image, the more sure she becomes.
At trial, as has been the case for all of history up to that point, none of the physical evidence is compelling or dispositive, and the case relies mainly on the victim’s testimony. She is absolutely certain by this stage, confidently pointing at the defendant as she identifies her violator. She really believes it, and it shows, so the jury believes her. He is found guilty – beyond a reasonable doubt – and sentenced to prison for two decades.
But he was innocent. His protestations that he had never seen that women in his life were true but not believed. The testimony of the victim was believed instead, because the jurors felt the most sympathy for her, and because she seemed as sure as the sun that it was the accused who did the dirty deed. So he rots in jail, an innocent man, falsely accused, falsely convicted. And nobody knows the awful truth but him. A nightmare.
Until! DNA evidence becomes widespread, routine, and orders of magnitude more powerful and accurate while equally less expensive. A few motions with the court, a reevaluation of a specimen of semen and … exoneration! And, usually, a very large but well deserved payout courtesy of the taxpayer. A much delayed triumph of justice.
Question: How often does this scenario play out anymore? Answer: It doesn’t.
And this is a major and critical weakness for any argument that uses these grounds and the exonerations of decades-old convictions to derive the system’s current odds of error and injustice, or to do what Stuntz does and say that we can acquit more black males and feel confident we are producing more justice than injustice.
And it hints at an issue which is beyond the scope of this post, but which warrants at least a mention here, and that is that the special category of crime I mentioned above which still generates the greatest risk of false and erroneous prosecution is sexual assault. Much has been written about the general unreliability of witness testimony, which was excused historically out of pure necessity and for the reliance upon which there is decreasing justification in this age of forensic technology.
But, while I am not a Psychologist, there seems to be a particular problem with memory errors and false remembrances (perhaps induced by a combination of intoxication and trauma) that especially plagues the accuracy of witness testimony in a rape case, but which is made worse (that is, more dangerous to arriving at an accurate verdict) because the erroneously reconstructed memory is genuinely felt to be real and clear with certainty by the victim herself. This gives her testimony particularly strong influence over the jurors.
Keep in mind, any criminal justice system can only ever be as good as its evidence. It’s odd that we’ve famously exonerated several hundred innocent men for rapes they did not commit, and blamed ‘the system’, but never blamed the witnesses who gave the false testimony. We never took a hard look at the root cause and core problem – the origin of the poor quality of the evidence upon which ‘the system’ relied.
And upon which it still relies, precisely because we never took that hard look. Because, again, that topic has become off-limits. Since that is unlikely to change, my counsel to men would be to avoid sex with strangers, which, anyway, is always good advice.
II. Brief Historical Overview
In Chapter 1, “Two Migrations”, Stuntz presents a synopsis of the history and demographics of crime in America. He briefly mentions the influx of Europeans and Irish in the mid 19th century, and then the Great Migration of millions of blacks from the rural South into the urban North in the early decades of the 20th century, both of which were followed by spikes in criminality. He hints that racism may have had something to do with it. Then on page 20 he pulls an Unz and hits you with his Figure 1:
And as tight as that correlation may appear, it’s actually much stronger if you increase the granularity of the date to the level of individual zip codes or neighborhoods. Stuntz:
In Chicago’s upscale, racially integrated but mostly white Hyde Park, today’s homicide rate is 3 per 100,000. In neighboring Washington Park, with a poor, 98 percent black population, the rate is 78 per 100,000.
That’s an increase of 2,600%, for those keeping score at home. Which, if I recall correctly, is even greater than the increased risk of experiencing a fatal incident when one deploys to a warzone. Pause, and think about that for a minute.
Stuntz highlights the intense geographic concentration of crime in America, and uses it to support his case for more localism:
In terms of their exposure to criminal violence, Americans live in two strikingly different nations. That truth goes some distance toward defining our strange politics of crime, as voters in safe places elect the officials who shape criminal justice in dangerous ones.
Well, you see how he’s setting up the pins here. But one might respond to this by asking what it means to be ‘in safe places’ if you also have to commute from the suburbs to work in the city in a dangerous one. Or perhaps if one wants to enjoy inner-city pleasures such as a run in the park or a visit to the museum. Is it unjustifiable for such outsiders, commuters, or tourists to have some say too? And don’t those elected officials shape criminal justice in both safe and dangerous places equally? But, again, Stuntz wants those dangerous places to become politically independent and make as many of their own decisions concerning criminal justice as possible.
Stuntz then proceeds to explore a few potential explanations for the historical spike in crime starting in the late 1950’s, and hints at (but never endorses) a conservative-sounding link between crime rates and punishment patterns:
… northern and western prison populations fell while crime rose; the number of prison inmates per unit crime plummeted. In 1950, New York State housed 28 prisoners for every New York City homicide. By 1972, that number had fallen to 3. The figures for Chicago and Detroit, Los Angeles, and Boston are similar. If punishment deters crime, as a good deal of social science suggests, its absence must work in the opposite direction: collapsing punishment in the generation after 1950 surely contributed to skyrocketing crime in that same generations.
What is remarkable and frankly revealing about that quote is that it even needs to be said at all. As if it were some recent discovery or surprising confirmation of some old wives tale, as opposed to being the universal opinion on an obvious truth held by all informed observers for the entirely of human history prior to … 1950 (or perhaps 1850 for a few particularly prescient individuals). It only took 60 years for a progressive to finally admit it, though still in language as hedged and pusillanimous as possible.
Stuntz moves on to a discussion of his historical ideal – the highly localized management of criminal justice in enclaves of particular nationalities, often run by the bosses of the local ethnic-based political machines, in their quest to satisfy their vote-banks.
These legal standards called for moral evaluation, not just fact finding. Jurors were free to acquit whenever criminal punishment seemed, on balance, unfair.
Acquit they did, and frequently. More than three-quarters of turn-of-the-century Chicago homicides led to no criminal punishment – not because the the perpetrator could not be identified, but because no jury would convict.
If you want a picture of the multicultural, multiethnic future, imagine racial-solidarity juries pumping out not-guilty verdicts—forever. Stuntz did!
And, well, maybe those acquittals resulted from subtle and refined ethical evaluations of balanced fairness. Or maybe something else was going on.
Either way, apparently people weren’t actually that happy with that system and proceeded to rapidly reform it with a zeal to remove local, organic, personally-engaged, yet also often corrupt ‘community policing’ and replace it with detached professionals working for a distant, central authority.
In fact, it was the early progressives who pushed this change and made rational reform and honest modernization of municipal policing, and the broader strategy of the eradication of the corrupt political machine system, some of their top priorities. Stuntz says, in a way, that a century hence the modern managers of the system the early progressives created have both become too efficient but more importantly too insulated and disconnected from the neighborhood-level consequences of their efforts. So the old progressive positions, whatever their logic or motivation, simply have to go if we’re going to reduce imprisonment.
Stuntz returns to presenting the history of crime statistics and says:
In the span of little more than three decades, Americans first embraced punishment levels lower than Sweden’s, then built a justice system more punitive than Russia’s.
And he backs it up with lots of numbers and tables. He goes on about the present state of affairs:
Today, among white men [NB, not non-hispanic white, which is a typical statistical confounder], the imprisonment rate stands at just under 500 per 100,000 population: the highest in American history by a large margin. Among black men, the number tops 3,000; among black men in their twenties and thirties, the figure exceed 7,000. If present trends continue, one-third of black men with no college education will spend time in prison. Of those who do not finish high school, the figure is 60 percent.
Stuntz compares what has happened to levels of violence in the past century in NYC:
New York is America’s safest large city, the city that saw crime fall the most and the fastest during the 1990s and the early part of this decade. Yet New York’s murder rate is 80 percent higher now than it was at the beginning of the twentieth century-notwithstanding an imprisonment rate four times higher now than then. That crime gap is misleadingly small: thanks to advances in emergency medicine, a large fraction of those early twentieth-century homicide victims would survive their wounds today. Taking account of medical advances, New York is probably not twice as violent as a century ago, but several times more violent. At best, the crime drop must be counted a Pyrrhic victory.
III. The Wolf By The Ear
Stuntz opens chapter two concerning the legacy of slavery with Jefferson’s famous quote:
We have the wold by the ear, and we can neither hold him nor let him go. Justice is in one scale, and self-preservation in the other. – Thomas Jefferson, Letter to John Holmes (1820)
Stuntz tells the real political history of this letter (it was written for public consumption), and draws an analogy to the current prisoner population:
…the idea of reducing the nation’s enormous prison population may frighten those who live outside prison walls … Twice before in the last 75 years American’s imprisonment rate fell sharply … The first time, the nation’s murder rate rose nearly 30 percent; the second time, the murder rate doubled.
… Justice may compel the conclusion that far too many black men live behind bards-but self-preservation may suggest that keeping them there is nevertheless the best of a bad set of alternatives.
A typical but incorrect hypothesis is that all this incarceration is due to the war on drugs, and there are some other common ‘usual suspects’. But Stuntz writes:
Still, drug prisoners amount to only 20 percent of the prison population. If all drug cases were removed from statistics, America’s imprisonment rate would still have quadrupled over the past thirty-five years. Drugs were a significant factor in exploding prison populations, but they are not the explosion’s primary cause-and the same is true of three-strikes laws and mandatory minimum sentences that increased punishment for various classes of nondrug crime.
Stuntz says that disparities in incarceration are mostly due to disparities in criminality, and only slightly due to racial discrimination contaminating the processes of the justice system itself.
The black crime rate is substantially higher than its white counterpart; the difference between the two rates account for most-though not all-of the difference between black and white imprisonment rates.
What about Europe? They’ve got recent-origin crime problems too, and they imprison many fewer people per capita on average – four to seven times fewer than the US. Whether or not there lies a causal ‘because’ in there is for you to decide.
With the large exception of homicide, most Western European nations are are crime-ridden as the United States or more so. Belgium, France, Portugal, spain and Great Britain all have higher rates of robbery than the United States. Austria, Denmark, the Netherlands, Spain, Sweden, Switzerland, and Great Britain have higher rates of burglary – in most instances, twice as high. Rate of auto theft are higher in France, Denmark, Sweden, and Britain.
IV. Some Legal History
In Chapter 3 Stuntz again claims that black crime (as opposed to ‘all crime’) is governed by white judges and white politicians and the white voters that elected them. Whether this is even accurate anymore in many heavily black jurisdictions is subject to some doubt, but later on Stuntz complains about the Supreme Court’s mandates and says:
The ideals that rein in oppressive criminal law enforcement usually come from constitutional law: meaning, mere politicians cannot change or ignore them.
And neither can anyone be held accountable for their costs and failures. But if those rules come from on high, how exactly do those white politicians and white voters who elected them govern black crime? What room for maneuver do they really have left?
Stuntz tells the History of the origin of many of the criminal-law-related clauses in the Bill of Rights and says that many of them are anachronistic. They were never intended to apply to normal criminals – the proper domain of state authority – and they weren’t updated (except through clever reinterpretation) to keep pace with the 18th and 19th century evolution of criminal justice into the modern system which was more or less complete by the Civil War.
The notion that these rights might serve as the legal foundation for a justice system that punished not heretics and seditious pamphleteers but murderers and rapists was foreign to the men who wrote the Bill of rights. In large part, that was so because the criminal justice system to which the Bill’s constitutional ideals apply today did not yet exist. There were no police forces or district attorneys’ officer in 1791, the year the Bill of Rights was ratified. The Bill contains no provision designed to rein in the discretionary power of public prosecutors: plea bargaining and prosecutorial discretion, fundamental features of today’s justice system, were unknown in the late eighteenth century. Defense lawyers like Adams and Hamilton were few and far between; the battle between opposing lawyers that dominates criminal trials today was a rare event.
And later, after a long history of the development of criminal law:
Federal criminal law was meant to be narrow, and federal criminal law enforcement was meant to be rare.
He then goes on to explain the inevitable and continuous expansion of federal law enforcement efforts – the initiatives and authorities and laws and so on. Much of it, in the Reconstruction era and thereafter, focused on extralegal behavior by Southern Whites such as lynchings and KKK activities.
Stuntz dedicates an entire chapter to the important constitutional matter of the ‘incorporation‘ effect of the 14th Amendment on the states’ abilities to fashion their own criminal law as they saw fit. It’s a fascinating history, but the bottom line is that, gradually, in the name of equal protection, all the states were compelled to obey one, strict federal standard. As David Dudley Field, defense counsel in the Supreme Court where his brother Stephan was a Justice (and who have been mentioned in this space before), said:
“… our fellow citizens of the whole nation … bear us out in the assertion that the people did not suppose they were thereby changing the fundamental theory of their government… [when they enacted the Fourteenth Amendment].”
But that’s what happened. Whoops. Be more careful next time when writing Constitutional Amendments – those Supreme Court Justices are wily characters that can turn a rubber glove into a ham sandwich if they put their minds to it.
V. Criminal Justice In The Gilded Age
In the next chapter Stuntz extols the virtues of his model criminal justice system – the processes that were employed by Northeastern municipalities in the early 20th century. Today, trials are so difficult and intensive, and pressures for efficiency and to maintain a winning track record so acute, that many fewer than the optimal number of serious prosecutions are performed, and many more than the optimal number of trivial cases are tried, but with nearly all of them resulting in conviction.
Trials and acquittals alike were far more common than today … Because acquittals happened frequently, they were also less newsworthy than today. So, in the Gilded Age Northeast, prosecutors paid a smaller political price for acquittals and were less eager to avoid them than today. Note the logic: less elaborate trial procedures helped defendants – not the government – by making both trials and acquittals ordinary events. Prosecutors do not invest heavily in avoiding outcomes that seemed ordinary.
Well, perhaps that was true back then. But there is a bit of a slight of hand at play here. Stuntz says this is all about costs and media pressure and politics. But why were there more trials and more acquittals? The reasons is that while prosecutors in the Gilded Age were held to the same legal and formal standards of proof in order to bring cases to trial, in reality present-day prosecutors are held to much higher standards both as a practical and legal matter. Gilded Age prosecutors would initiate trials as soon as they met the grand-jury legal burden of proof of ‘probable cause’ (reasonable likely’), only convicting when proving the case ‘beyond a reasonable doubt’ (almost certainly). Today, prosecutors will usually avoid pursuing a case unless the evidence seems ‘clear and convincing’ (very probable) from the get-go.
Personally, I see that as an improvement, because, as mentioned above, the process of carrying a trial to acquittal can still be personally ruinous, and I prefer that prosecutors be more restrained than aggressive. But your mileage may vary. The point is that Stuntz neither expects nor desires more trials (the inputs), and instead merely wants to see more of those juicy acquittals instead of nasty convictions (the outputs).
But circumstances in the Gilded Age were, of course, very different in the South:
Underfunded southern law enforcement agencies paid little attention to black neighborhoods, which led to racially skewed crime trends. One study of Mississippi homicides in the 1930s found that three-fourths of the state’s murder victims were black, as were two-thirds of the killers. … Killers of whites could expect a serious effort at arrest, prosecution, and punishment. Killers of blacks-white ones to be sure, but many black killers as well-were more likely to escape detection. This is why prison populations in the Jim Crow South were almost certainly whiter than the offender population, and sometimes whiter than the general population. Black-on-white crime was rare and was punished severely. Black-on-black crime was common, and officials often ignored it.
Stuntz goes on to lay out some of the history of race relations in the South following Reconstruction and focusing on the politics of lynch mobs and black-vote suppression, and the fact that, counter-intuitively to those marinated from birth in the contemporary narrative and ignorant of the history, Republicans and Democrats opportunistically switched their party’s positions on multiple occasions in regards to racial matters. This depended on the overall national electoral calculus and the intensity of the need to appeal to the highly polarized white or black southern voters respectively.
And everything was strange and different in the barely law-abiding and very violent Wild West. An example:
In 1859 [California Chief Justice David] Terry challenged U.S. Senator and San Francisco political boss David Broderick to a duel at which Broderick was killed; Terry was tried for murder and acquitted. Among those with whom Terry has a beef – it was a long list – was Stephen Field [see above], who served with Terry on the state Supreme Court in the late 1950’s and whom Abraham Lincoln later named to the U.S. Supreme Court. Thirty years after the fatal duel with Broderick, an armed Terry confronted Justice Field and was killed by Field’s bodyguard. The bodyguard was tried on homicide charges and acquitted. In the Northeast, lives and deaths like Terry’s were nearly nonexistent. Such violent lives, lived by men who enjoyed substantial political and legal power, could happen only in a society that ssumed even the most serious wrongs would be handled not by governments and legal procedures but by individuals protecting their honor.
Yeah … well, if you’ve even been to, say, Afghanistan, you can get a good taste of precisely what this kind of honor-protecting murderous existence is like in modern times. I like the romanticized hyper-masculine world of Westerns as much as much as anybody, and think there’s something important we’ve lost in the taming of the West and the domestication of its men. But there was also plenty gained, and so I’ll still side nudge slightly away from anarchy and towards statism by admitting my preference for the handling of these matters by governments. Also, I don’t have a bodyguard, and am not as quick a draw as I used to be.
The chapter concludes with the familiar and irreconcilable debates on the appropriate extent of the right of self-defense – debates that continue to be fought just as passionately to this very day, for example, in the infamous Bernie Goetz case and also as recently observed in the whole Trayvon Martin-George Zimmerman fiasco.
As is still the case today, there was a substantive and highly regional difference of opinion on whether the appropriate doctrine was the ‘retreat rule‘ or the alternative which was called the very macho-sounding ‘true-man doctrine’ which today survives in ‘stand-your-ground laws‘ and in the ‘castle doctrine‘. I think it would have been more strategic had the proponents of these doctrines kept the older terminology – it’s pretty hard for a candidate to appear tough and manly while arguing in favor of ‘retreat’ and against being a ‘true-man’.
The retreat rule held that the victim’s flight was preferable to the assailant’s death. The true-man doctrine held otherwise: victims of assault could defend their honor whether or not they could safely retreat.
The debate never ends, because it can’t: there is no stable balance between conflicting values. The Northeast required retreat, the South and West favored true-men. As a Missouri court put it:
It is true, human life is sacred, but so is human liberty. One is as dear in the eye of the law as the other, and neither is to give way and surrender its legal status in order that the other may exclusively exist … [No] man, because he is the physical inferior of another … is …. bound to submit to a public horsewhipping. We hold it a necessary self-defense to resist, resent, and prevent such humiliating indignity … and that, if nature has not provided the means for such resistance, art may; in short, a weapon may be used to effect the unavoidable necessity.
This split is important when it comes to evaluating historical homicide and acquittal data because, until fairly recently, fist fights and other forms of assault and battery were much less deterred and thus exceedingly common. So, if you notice a much higher ratio of acquittals for homicide in the South, you have to make sure to correct for major differences between regions in the prevailing legal doctrines, and also the less-than-perfect tendency of juries to scrupulously apply the retreat doctrine even when formally required (as in Chicago). And this kind of analysis is very rarely done.
In fact, Stuntz ends the chapter by stating a fact that tends to undermine his broader argument:
… especially at a time when a large fraction of homicides arose from bar fights that spun out of control.
I submit that this is a key admission that argues against extending the policies of that time period to our current era. This is simply not at all descriptive of the origin of most of our homicides today, and this difference makes the two periods practically incommensurable.
VI. A Culture War And Its Aftermath
The chapter opens with a poem I thought worthy of reproduction:
Prohibition in an awful flop. We like it. It can’t stop what it’s meant to stop. We like it. It’s left a trail of graft and slime It don’t prohibit worth a dime It’s filled our land with vice and crime, Nevertheless, we’re for it. –Franklin Pierce Adams, New York World (1931)
The progressive era opened with an intense and moralistic enthusiasm – really a kind of utopian religious zeal – for the radical, reformative, and rationalistic reconstruction and the uplift of practically every facet of society. I think it’s difficult to overstate their justifiable perceptions of the dizzying and accelerating pace of change in the pattern and experience of life, and of the limitless possibilities that the continuation of that trend seemed to promise.
Consider two sets of snapshots spanning a generation and compare each final year with each first for a sense of ‘drama’ and ‘upheaval’ and the ‘shock’ an average resident of the beginning year would experience if suddenly transported to the end of the period. Which is more radically transformative: 1890-1925 or 1975-2010? I’d argue for the former over the latter. We got the internet and smartphones, and sure, they’re pretty cool, but they got all the building blocks of modernity, which was a genuine and continuous rolling revolution.
The sense of the time was that they had entered a completely new kind of modern era, with almost indigestibly rapid expansions of inventions, technological capability, and economic and cultural potentials, with almost no foreseeable limit. The progressive spirit was to look at the entire variety of ancient and emerging social issues as mere technical problems that were now newly amenable to amelioration and even permanent solution. Everything was up for grabs; everything could now be perfected, planned, engineered, and organized according to ‘scientific’ principles – even man himself.
Which meant that everything inherited from the past – wisdom, religions, traditions, laws, constitutions, literature, art, institutions, and so forth, was all, at least potentially, obsolete and anachronistic to perpetuate. And, naturally, any loyalty to these antiques without an appreciation of their original functions and lack of continued justification in entirely different circumstances represented a frustrating and reactionary source of pointless hindrance and irrationally stubborn resistance on the way to building the New Jerusalem with New Men to live in it.
If an old fence stood in the way, it may have served a purpose in its day, but since the way was true, the barrier was almost certainly outdated. The relic was the result of some unfortunate but unavoidable compromise between our highest ideals and the tragic reality of a humanity burdened by severely limited knowledge, power, and resources, and which forced a barely-tolerated acquiescence to social conditions which offended the moral sensibilities of the community. Slavery itself was once one of those conditions, and the war to abolish it was born, in part, out of the collapse of whatever case might have existed for the necessity of its preservation.
But now, relieved of all those burdens, and empowered by their new, potentially limitless capabilities and mastery over nature, nothing was potentially out of reach, and the pent-up energies wishing to implement the ideals of the age by whatever means possible were enthusiastically unleashed from their ancient tethers. And their prime targets were poverty and vice.
And, if there’s still too much vice, and you’ve exhausted all the cultural ways of moderating its occurrence, then the obvious way to make progress is to declare vice a crime, wear the ring of power, and deploy the mighty force of the federal government – which now generated more eager excitement instead of the antiquated cautious skepticism – to simply stamp it out.
Between the late 1870’s and 1933, America’s criminal justice system fought a series of cultural battles in which the criminal law – especially federal criminal law – was a key weapon: against polygamy, state lotteries … prostitution, various forms of opium, and last but definitely not least, alcoholic drink. Taken together, these legal battles constituted a two-generation culture war, akin to the cultural battles over drug use, abortion, and gay rights in our own time. The earlier culture war transformed both the law and politics of crime.
… Where constitutional limits seemed to bar exercising federal power over traditionally local issues, Congress and the courts evaded those limits. Where a straightforward definition of the conduct Congress sought to criminalize would leave federal prosecutors hard-pressed to win convictions, the relevant crimes were defined more broadly to make convictions more easily won.
… Gradually, American criminal law ceased to define the confuct and intent that prosecutors actually sought to punish, and instead treated crime definition as a means of facilitating arrests, prosecutions, and convictions.
Stuntz, in his quest to support more localism, has to contend with and explain the death of federalism as a casualty of the Civil War.
Localists note that giving different states or territories the power to choose their own rules maximizes the number of people who live under rules their find congenial. Nationalists answer that localism ignores the moral character of the relevant rules.
…Douglas-style live-and-let-live federalism seems an appropriate approach to the issues such offenses raise. Yet there too, Douglasite localism lost out to Lincolnian nationalism. Why? [NB: Not, apparently, ‘because he won the war’]
The short answer is this: because voters care about the rules that govern people who live in other jurisdictions. Abortion opponents seek more than abortion bans in their own states; they also oppose pro-choice laws in other states. The same is true in the other direction: pro-choice voters want pro-choice laws nationwide, not just for themselves. … That instinct was the Achilles’ heel of Stephen Douglas’ defense of popular sovereignty, under which voters in territories could decide whether to allow slaveowning in their midst. Lincoln called it Douglas’ ‘don’t care’ policy. But enough voters did care …
A century ago on a range of issues from lotteries to liquor, from polygamy to prostitution, Lincolnian moral nationalism consistently prevailed over Douglasite federalism. … Moral issues go national: they migrate up the sovereignty ladder rather than holding steady on one of the lower rungs.
A national media probably had something to do with that, but it all sounds so familiar somehow. And what are the imperatives of today’s moral nationalism? And what will they be tomorrow? For what lives on crusades must always be foraging for some new crusade.
It is in the nature of American law that key and transformative Constitutional holdings often arise out of petty and bizarre cases of seemingly little consequence or significance. The nationalization of crime was just such a transformation, and Stunz lays out the details of the mildly amusing case of Champion v. Ames (1903), a case about a law which tried to regulate the Louisiana lottery out of existence, and which ended up redefining American federalism.
Specifically, it held that Congress’ anti-lottery law fell within the scope of the Constitution’s infamous interstate commerce clause, which has, in the last 111 years been used as the exception to the principles of limited government that has completely swallowed the rule, and, indeed, has made an utter mockery of it. The ‘rule’, in this case, is the rest the Constitution, especially Article I. And, since Wickard (1942) no one has been able to articulate any coherent limiting principle to the doctrine. Congress can pretty much do whatever it wants to anybody with both its taxation power and its commerce-clause-enabled plenary authority, and you can count the number of times a crime-related law has been invalidated for lacking some plausible link to the doctrine on one hand.
The requirements that Congress restrict criminal statutes’ scope to foreign and interstate commerce was formal, not functional. So long as something or someone had crossed a state or national border, federal power to punish crime was essentially automatic.
So, as for federal regulation of the vices: for sex, it was the Mann Act. For drugs, the Harrison Act. But for alcohol the situation was different because it never had to leave the state of its manufacture before it was consumed. And it could be easily smuggled across state lines if even one state abstained from getting on the temperance bandwagon, which is precisely what occurred when several forward leaning states attempted to implement the ban on their own. The only legal solution seen at the time was Prohibition. Today, no such amendment would be thought necessary, especially after Gonzales v. Raich (2005).
Raich was a grown-and-consumed-locally marijuana case, but ironically, and without any change in the law, the federal government now sees fit to use its claimed powers of ‘discretion’ to indulge a bit more federalism and localism by refraining from prosecuting individuals who violate federal law in states that have recently decriminalized the recreational use of cannabis.
See, when progressives get stuck with federal policies they don’t like and don’t have the political means to change, all of a sudden the die-hard nationalists become dyed-in-the-wool federalists. It’s almost like ideological advocates will just make use of whatever legal doctrines are most convenient to their agenda at the time, and then seamlessly extol the very opposite doctrines when the circumstances change, and that few people really care about ‘loyalty’ to the ‘truth’ or ‘superiority’ of these abstract notions. Nah, clearly I’m being much too cynical.
Anyway, back to prohibition. Stuntz actually has a lot of positive things to say about the lasting social consequences of ‘the noble experiment’ that contradict the typical narrative, but he also fairly describes the dark side of black markets for contraband. Remarkably, he once again dives in the into well-explored progressive territory of class distinctions to once again calmly suggest that a sacred position should come up for reconsideration.
The market in which poor customers participated attracted a good deal of law enforcement attention. The market used by wealthier drinkers, much less so. This class bias was no new phenomenon; it was and is a common feature of vice markets: wealthier customers pay for more discreet forms of the relevant vices and hence bear less risk of arrest and prosecution than their poorer counterparts. … At first blush, that is no bad thing. [emphasis added]
Wait, what? Who gave the reactionary a spot teaching at Harvard Law? Where’s he going with this? Well, he seems to be setting up the strongest version of the argument in order to knock it down later, a technique the extraordinary Scott Alexander calls ‘steelmanning‘.
Poverty, violence, addition, domestic abuse – all are the common side effects of lower-class vice markets. Such collateral damage is less prevalent among upper-class customers, whole wealth gives them a greater margin for error, a capacity to live dissipated lives without disastrous consequences. If crack markets caused more social hard than markets for cocaine powder, one might suppose, those who trade in the more dangerous drug market should be punished more consistently and more severely than participants in the more benign market. If working-class consumption of alcohol caused more deprivation and violence than upscale consumption, punishing the former while giving the latter a pass seems more an instance of wise social policy than discriminatory enforcement.
But that policy is, and was, at war with itself.
But then, Stuntz then goes on to give a surprisingly brief and shockingly weak case for such a war, which really makes one wonder what he really thought about this argument. That he would leave such a case mostly unscathed by counterargument is especially intriguing because the crack-cocaine punishment split has been, for my entire life, a constant and passionate agitation for the progressives, a casus belli and a war cry, and which culminated after years of advocacy and effort in President Obama’s signing of the 2010 Fair Sentencing Act.
The next few sections of the history which followed the repeal of prohibition and proceeding into the McCarthy era probably represent the nadir of quality in terms of the book’s content. This is fortunately mostly peripheral to its larger themes, but it still gets a lot of the historical details wrong, and introduces some truly bizarre interpretations. An example:
Before the hearings conducted by the Senate Rackets Committee in 1959, Robert Kennedy was an anonymous [emphasis added] Senate staffer, best known as the younger brother of the junior Senator from Massachusetts.
If you think RFK was some mere ‘anonymous’ staffer as late as 1959, I’ve got a bridge I’d like to sell you.
The point Stuntz is trying to make with his warped narrative, however, is that the focus of national attention really were changing in the post-war era of Hoover, the FBI, and the federal initiatives against the mob, organized crime, and the various leftist radical groups (e.g.) whose memberships exploded when the baby boomers came of age. Particularly important was the vast media attention (especially of the broadcast television news variety) which was lavished upon these efforts, and the political opportunities implied by all that free press.
The public choice incentives thus became warped. The traditional alignment of interests and priories of voters with political officials was affected by simple the simple means of democratic-accountability, back when that kind of thing was still possible. The achievement by elected law enforcement officials of establishing safety, security, and public order in their local jurisdictions would typically generate all the popular support they needed to win elections.
But the new element of television media sensationalism meant that there was an alternative and glamorous path to popularity and political fortune which was detached from the accomplishment of those mundane objectives. In addition, for a brief period prior to the chaos of the 60’s, and excepting the exaggerated contribution of organized crime (which was, at any rate, concentrated in just a few urban areas), the post-war scene was especially secure and orderly with violent crime levels approaching their historical lows.
The public feeling of safety, their new lack of interest (because lack of fear) in ‘ordinary crime’, and the law of diminishing returns meant very little political hay could be made by mere maintenance or any effort to improve local crime statistics.
Some political hay could be made on the other side of the coin, by arguing for more leniency, ‘enlightened’ approaches to crime, and fairer procedures that would mitigate racist discrimination that persisted in the South. And due in part to that vigorous advocacy, all of these proposals were in fact implemented.
But Stuntz argues that ambitious and clever politicians tried to turn crime into a moral-nationalist issue, so that they could win votes in their own peaceful jurisdiction by polemicizing against crime in completely different localities with which they had nothing to do. So, according to this story, politicians were exploiting the media environment to encourage white voters in peaceful suburbs to discover their inner moral busybody, by which they start ‘making the rules’ and ‘controlling’ the black inhabitants of black-crime-plagued communities, with which they had nothing to do, and so which layed outside the domain of their proper interests.
Again, Stuntz is trying to convince us that those black inhabitants should have much more independent, local control over criminal law in their own areas, and this because he expects that such control will yield a much lower number of incarcerations, one way or another, and regardless of the incongruence of the resultant numbers with those that would be required by adherence to the formal law. And that means convincing those equality-obsessed white people to not poke their nose in (which was ‘good’ when Yankee progressives did in the South, but is now ‘bad’) and instead butt-out.
There are four serious problems with this theory.
First, as mentioned above, is that crime in black neighborhoods is not, in fact, ‘nobody’s business but theirs’. There are all kinds of externalities. Criminals and their customers and suppliers are very mobile in this day and age. And city spaces – especially in the urban core – are shared by workers, university students, tourists, and commuters who must suffer the risk of violation for at least part of every weekday. Also, some crimes like homicide may be geographically concentrated, but other, like larceny and burglary, are much less so. Yes, crime is prosecuted where it occurs, but the message of deterrence is more salient when punishments are issued from within one’s home-base community, and distant victims still have an legitimate interest in local enforcement.
Second, communities are far from static, and people in a highly mobile society have all kinds of forward-looking future interests in what happens elsewhere. Stuntz elides the timing and causation of white flight from the urban core to the suburbs and their replacement in some neighborhoods by new black arrivals. If whites want to reverse the abandonment of some of these areas, move back into the city center, and gentrify those communities, then they need someone to first clean up the horrendous crime problems. Whether or not this is a ‘legitimate’ interest, or at least valid enough to warrant ‘outside’ ‘interference’ is a matter of some current debate, but it’s not an issue that can be quickly dismissed as unsubstantial.
Third, the flip side of racial or class solidarity with, or animus against, a defendant is the same set of biases directed at the victims of crime. The criticism of the demonic-archetype Jim-Crow-South jury is that, with an all white jury, if the defendant was black and the victim was white, the accused stood no chance. If the defendant was white and the victim was black, the accused was in no peril at all, and the victim would receive no justice.
Stuntz’s proposal for local control makes it highly probable that most jury members and defendants in crime-plagued areas will be black, but it does nothing to guarantee the race of the victim, which gives rise to some ugly possibilities that, alas, can hardly be dismissed in this day and age.
It’s one thing to let a neighbor-defendant go free out of mercy, or a perception that the crime was always a ‘foreign’ imposition with no local support, or otherwise of minor importance and nonthreatening to the safety of the local community. It’s another thing entirely to let a dangerous man, clearly guilty of a violent crime, go free because he is similar to you in most respects, whereas ‘that rich white bitch had it coming’.
Don’t fool yourself – this is a real problem. Vast cultural distance enables one to dehumanize a victim as belonging to a privileged class of people who are demonized as oppressive hate figures in your own community. This is a view that is actively promoted by certain broader political movements, and furthered by the prevalence of wicked cultural messages that encourage precisely this kind of vicious resentment. Is the knockout game real, or isn’t it? It is. And the Polar Bear sits on the tip of a vile and massive iceberg.
Remember, you only need one person to think this way to set a thug free. That this is an uncomfortable and inconvenient topic does not mean it is not a real prospect or should not be carefully considered. Just because there has been a reversal in the narrative’s skin colors does not mean the problems with Jim Crow juries have gone away.
And finally, fourth, if those white suburbanites did control the administration of criminal justice in the ghettos, and if they were so obsessed with keeping it down, then why in the world did they allow it to absolutely explode over the next two decades without expressing constant outrage at the Warren Court’s activism? A mystery.
VII. Constitutional Law’s Rise
Stuntz spends the next chapter briefly telling the story of the line of landmark Supreme Court cases – many from the Warren Court – and the legal and intellectual history which forever reshaped the modern field of criminal jurisprudence and which forms the basis of much of what is taught in law school in Criminal Procedure. Everything from Mapp (1961) to Miranda (1966) and beyond.
And Stuntz’s main accusation against this history is that the Court focused on procedural, instead of substantive rights. I’ll do a disservice to the complex legal concepts and say that if you were to try and summarize the main difference between the concepts in this context, it would be in the focus on merely policing the rules of the game – remaining indifferent to the results so long as the games were fairly played – as opposed to requiring certain kinds of results to emerge from the games, without ‘fair play’ being a defense to missing the target.
The target itself – usually ‘equality’ – is presumed to be ‘just’, and any deviation from it must originate in some kind of hidden injustice somewhere. So lady justice must raise her blindfold and put her thumb on the scales to balance the pans across the fulcrum.
An analogy could be drawn between a single, individualized discrimination case, which requires evidence of motive and specific intent on the part of the accused against the victim, and a disparate impact case, which is able to proceed on a purely-quantitative analysis of aggregate statistics, without having to show any intention of purposeful discrimination, and giving rise to liability even if produced inadvertently, discrepancies from the legal quota requirement being effectively suspect per se in practice (if not in formal law).
In the history of American law, procedural due process is universally accepted as core doctrine, even if there is a good about of debate on its proper scope and content. But substantive due process is very controversial, and particularly despised by conservatives, originalists, and federalists, who claim that activist progressive jurists have abused the doctrine to accomplish all sorts of insidious mischief while acting as a ‘super-legislature‘.
Stuntz takes the preceding 215 pages to finally say that he would have preferred it had the Supreme Court sided with substantive / disparate-impact side of the law. He says that equal representation and racial balance in prosecutions and incarcerations could be viewed as a substantive due process right, and the Court could police that right and get the numbers to work out the way he wants, regardless of the rate of disparities in criminality. Combined with his proposal for local control and the prospect of racial solidarity acquittals, and if implemented, it would be a pretty effective way to open the prison gates very, very wide.
VIII. Earl Warren’s Errors
To support his call for substantive rights, Stuntz unleashes against what he sees as the great blunder of the procedural rights revolution which occurred primarily during the tenure of Chief Justice Earl Warren. Warren, like his friend Dwight Eisenhower, was nominally a ‘Republican’ but during the height of the progressive and New Deal eras, and so that label meant almost nothing that would be considered familiar today.
Warren was a Republican in the same way that former New York City mayor Michael Bloomberg was a Republican – purely as an expedient to getting elected given the current political landscape. Most nationally-prominent Republicans identified as ‘progressives’ in the ‘supports the process of modernizing society’ sense that had become so popular, and that was plausibly viewed as coterminous with ‘supports good government’ in a way they thought transcended mere politics.
Politics was confusing and often dirty at the time, with Warren able to use cross-filing rules to run on the Republican, Democrat, and Progressive tickets, and by this means having won reelection as Governor of California in 1946 with nearly 92% of the vote. That’s more support than corrupt tyrants even pretend to get in their rigged elections. And just try to imagine getting 92% of Californians to agree on anything, ever, let along their top elected official, without a whole lot of shenanigans at work behind the scenes. But that’s the way it was back then.
Briefly, the Warren Court imposed a whole suite of onerous procedural requirements on police and trial processes to try and build a more ‘enlightened’ justice system and to remedy the perceived abuses of police power – most especially the ones having a racial motive.
In the short run, the Court’s rulings made criminal law enforcement and litigation more expensive, which meant even less criminal punishment … and (probably) still more crime [during a crime wave]…. Plus, the procedure-focused character of the Court’s decisions made them east to attack once voters demanded tougher law enforcement practices: it is one thing to overturn convictions of defendants who may well be innocent, quite another to reverse otherwise valid convictions based on one or another procedural error. [emphasis added].
… The defense lawyers who enforced those rights were not bringing forward evidence of their clients’ innocence but [using the new procedural protections] suppressing evidence of their guilt. Whatever their other merits, such practices were bound to make the justice system do a worse job of separating those defendants who deserve punishment from those who don’t – it’s central task.
… Warren and his colleagues continued and exacerbated a long-term trend: they proceduralized criminal litigation, siphoning the time of attorneys and judges away from the question of the defendant’s guilt or innocence and towards the process by which the defendant was arrested, tried, and convicted.
Ah, but who ‘deserves punishment’? I agree wholeheartedly with Stuntz’s criticism, but it’s a bit hypocritical coming from a guy who is trying to get a lot of punishment of fully ‘deserving’ criminals off the hook if they live in black neighborhoods, for the same actions that would cause other people in other neighborhoods to be punished.
Stuntz is reluctant to say that this ’caused’ crime to explode (and that reluctance is notable in itself), so he says it was a mistake for the Warren Court to make prosecution more difficult while simultaneously, for some other mysterious reason, crime was exploding. He calls this a ‘political error of the first order’.
But I think you have to admit, it’s an odd theory of Constitutional jurisprudence that says that Justices should make decisions not about what the Constitution means and requires – whatever the nature of contemporary events, and whatever the political costs (the protection against which is the justification of their life tenure) – and instead should act as wise legislators, weighing the needs and conditions of the time to craft appropriate public policy as they see fit, abusing their power to interpret law, and using the words of the Constitution as cover. Actually, not that odd a theory at all these days, alas.
The result of that explosion in crime was a public backlash and an opportunity for those pesky politicians (he particular has it in for that horrible Ronald Reagan) to ‘exploit’ the situation by – are you ready for this shock – actually campaigning on the platform of getting tough on crime. Reagan, 1966, running for Governor of California nearly half a century ago:
Our city streets are jungle paths after dark … With all our science and sophistication … the jungle is still waiting to take over. The man with the badge holds it back.
That scoundrel! And ‘jungle’? Not just a metaphor for anarchic brutality but clearly one of those famous racial code words. The voters were, of course, utterly helpless in the face of such sinister, exploitative manipulations. They supported it wholeheartedly.
Stuntz says the tought-on-crime rhetoric was all talk:
California’s imprisonment rate fell by nearly half during Reagan’s two terms in Sacramento. Alabama’s imprisonment rate did likewise under Wallace. … Their tough rhetoric was just that: rhetoric.
No. Not even close, and Stuntz knows it. Imprisonment rates fell because the courts made them fall, and Governors were powerless to do anything about it, even though they were doing everything that was still within their authority to raise imprisonment rates in the midst of a terrifying and continuous crime wave.
He then claims that since ‘tough-on-crime’ rhetoric is a winner politically – especially, you know, during things like horrendous crime waves – that progressives had no choice but to join in if they wanted to win elections.
When conservatives like Reagan, Wallace, and Richard Nixon won blue-collar white votes by attacking soft judges and (indirectly) black criminals, liberal politicians were forced to respond … Liberal Democratic presidential candidate Robert Kennedy made tough measures against urban disorder a centerpiece of his campaign for his party’s nomination.
It’s somewhat comical to imagine that these progressive politicians were practically forced against their will – contrary to their genuine views, ethical principles, and better judgment – to play to the crowd and, with extreme reluctance and a bitter taste in their mouths, actually propose to do anything politically about an out-of-control crime situation. It’s a very revealing statement of the progressive mindset with regard to crime, and their sensitivity and qualms with regards to making anyone suffer, especially if they are from oppressed classes, and even when necessary and fully justified. This feeling is so powerful that they were that close to committing political suicide and dragging the rest of the country along with them.
At any rate, if it is the information-environment of accurate media reporting on criminal activity that provokes the public and creates the political incentives which generate the ‘tougher-on-crime-than-thou’ arms race, then a ‘solution’ to this ‘problem’ is to … stop accurately covering crime. Especially of the dog-bites-man variety, and most especially of that category of crime that is most likely to provoke the audience into political action. And that would be the kind in which it is people just like them who are the victims. The press, apparently, has learned this lesson all too well.
IX. The Rise And Fall Of Crime
IX.1. Tough On Crime
At any rate, Stuntz claims that a ‘bidding war’ ensured between politicians everywhere, with everyone from every party rushing to claim that they were ‘tougher than thou’, with legislators and the police despeartely throwing every possibly innovation they could think of at the courts and seeing which ones would make it through the gauntlet-run.
Gradually the courts, after seeing the hell-road their good intentions had paved, relented and started siding with the police and the law-and-order bar, and the politicians funneled large amounts of money and personnel into bringing the situation under control. There was a political turn towards conservatives, and sentences were regularly increased in severity. We built the Police State. But, gradually, the prisons started to fill up. And up, and up.
And then, finally, crime started going down. And down, and down.
Stuntz is still stubbornly reluctant to affirm the Occam’s Razor explanation and the obvious the theory of causation. It’s the opposite of the post hoc ergo propter hoc fallacy. What came after was merely coincidental with what came before, not consequential. Instead of ‘because’ he proposes ‘while’. Imprisonment went down while crime went up, and then imprisonment increased while crime went down. Quite the coincidence! Then again, he’s hardly alone.
Crime’s decline is one of the great mysteries of the 1990’s … No one predicted [it], and the usual theories – better policing, tougher sentences, lower unemployment – don’t seem to explain it fully. – Robert Samuelson, Newsweek (1999)
Actually Bob, they really do. Stuntz claims this is partly due to the smart application of ‘soft power’ which was implemented shortly after the drop in crime began.
If backed up with enough personnel, the softer forms of policing work: they tame urban crime to a degree no one thought possible only a short time ago.
Well, the logical leap is attributing this taming to the moderate changes in policing instead of the massive changes in incarceration. One could look for the trend discontinuities in the local rates of crime and compare them to the national trend and the time when community policing was locally implemented, and my guess is that you won’t find much support there.
But Stuntz sings the chorus against the incarceration-explanation too:
Add it all up, and the picture is quite different than the conventional wisdom allows. We do indeed have a massive, bloated prison population, the criminal justice crisis of our age. But the justice system that produced that population is not hard-wired to punish excessively … Likewise, the crime drop of the 1990s is not evidence that the system works as it should. More the opposite: even after that crime drop, the nation’s bloated prison population coincides with rates of urban violence that, a half-century ago, would have seemed intolerable outside the South.
Wait, I’m confused. Is this an argument for less incarceration, or for more? If our society, for whatever mysterious and unfortunate reasons, is an order of magnitude more prone to violent criminality than it was in past – something which Stunz himself conceded and which I pointed out above – then doesn’t it stand to reason that we would require an order of magnitude more policing and imprisonment? I guess not – we’re clearly just ‘bloated’.
IX.2. Paying For Prison
Stuntz blames part of that ‘bloat’ on political incentives and economics.
The second cause has to do with the politics of budgets, which gave local prosecutors every incentive to send as many defendants as possible to ever-more-swollen state penitentiaries. States pay for those penitentiaries, but local officials-chiefly prosecutors and trial judges-make the decisions that fill them. To the local voters who elect those officials, and hence to the officials they elect, prison sentences are nearly a free good. Meanwhile, local governments, not states, pay more than 90 percent of the tab for the local police forces that are responsible for the overwhelming majority of street-level law enforcement. Policing and imprisonment are substitutes: they are the two main ways governments spend money to battle crime, and historically, more of one tends to mean less of the other. One of these alternatives is heavily subsidized; the other isn’t.
This isn’t quite true because money turns out to be fungible, and policing and incarceration aren’t perfect substitutes (you won’t get very far with absurdities like all policing but no prison, or all incarceration but no arrests) – so there is an optimal balance of the two for any allocation of resources. If you lower the price of one good in a package, then there are income and substitution effects to consider, but in general economically rational actors will take any particular subsidy and just reallocate the rest of their budget to remain near the same optimal balance. If you were to switch the subsidy from prison to policing, but keep the overall available security budget constant, then certainly there will be a rebalancing in favor of policing and away from prison, but the overall effect is usually less dramatic than one might think.
Also, if new funds become available, it is easy to quickly adjust the amount of policing or the penalties for particular criminal violations, but it is illegal to lengthen prison sentences which one set shorter than normal during a period of tight budget circumstances.
The problem, Stuntz says, is that while prison is indeed expensive, it’s still too affordable for the largest entities that bear most of the burden – the states and the federal government – to create any beneficially compelling pressure to reduce incarcerations:
… corrections budgets amounted to a mere 2.6 percent of state spending nationwide. That is one-fifth of state expenditures on education, barely half what state governments spend on health care [and just wait! -ed] or highways. Cities’ and counties’ spending on local jails amounted to even less: only 1.6 percent of local budgets. Federal spending on federal prisons was smaller still: less than three-tenths of 1 percent of overall federal spending…
If, however, you were to dump the numerator of all this cost on the tiny denominator of some poor community’s budget, then those percentages would rise into the danger zone and the decision to throw the marginal criminal in jail would be a much more difficult one.
But the broader question is what is the wisest distribution of the burden for paying for security. Progressives are usually in favor of spreading the burden around as widely as possible, and especially in favor of insuring that resources are redistributed from the haves to the have-nots, and from the fortunate to the unlucky, assessed by progressive (naturally) tax rates.
If the subject is, say, education, then there is no question in their minds that the state and federal governments – and the rich in general – should pick up as much as the tab as possible to help some poor community pay for what is clearly a traditionally local function and responsibility. Indeed, while they were unable to do so at the federal level, the progressives have amended many state constitutions and used the state courts to make such redistributions mandatory.
But suddenly Stuntz wants some poor, crime-plagued community to be entirely on the hook for the cost of incarcerating their prisoners, and the rest of the evil, wealthy white suburbanite taxpayers to get off scot free.
Personally, I think they should pitch in even more – but they should also have whatever control and legal authority is required to use that money to actually accomplish the job of public safety, instead of constantly stopping short because some judge once said so. You might say I favor ‘redistribution of order’ or ‘equality of security’, as a prerequisite for pursuing any other kind of social initiatives. I think the first priority should be to make sure that the writ of the law extends to every single parcel of a supposedly first-world country, and that everybody deserves to live free of crime, free of fear. I’m told that makes me some kind of fascist radical, but perhaps I was just born too late, because these sorts of opinions used to be commonly held. But you know, ‘progress’, and all that.
So, Stuntz thinks that switching the subsidy will lead to a rebalancing in favor of policing, and he is very enthusiastic about the potential of more emphasis on an updated version of old-school ‘community policing’. But mostly he wants the cost of incarceration to overwhelm low-income neighborhoods and municipalities so that they simply cannot afford to send anyone but the worst of the worst to jail – even if things deteriorate and they are utterly desperate and really want to lock up more thugs. Meanwhile, relieved of the burden of having to pay to incarcerate the felons from other areas, more well-off communities can now afford to throw even the most marginal of violators into the clink. That strategy seems more than a little perverse.
IX.3. Making Prison Hard To Pay For – The Example Of Capital Punishment
And speaking of perverse, there is also a perverse incentive to go farther and not only take away the prison subsidy but actively try and make imprisoning criminals much more expensive than it needs to be, in order to further put pressure on poor communities to reduce their prosecutions even below the bare minimum.
You could make it difficult, costly, and time-consuming to build new prison capacity – special environmental impact statements and community comments periods are very useful in this regard. You could try and prohibit the use of cheaper, privately-managed facilities, or ‘outsourcing’ of prisoners to cheaper locations – even make such an industry a politicized hate-object. You could require all manner of expensive services to be made available to prisoners, and also overburden facilities with mandates with which it is costly to comply. And don’t forget the unions just ‘forcing’ you to pay certain employees and countless layers of administration a fortune!
All of these strategies and more have been pursued by progressives in the legislatures and the courts, and all of a sudden the cost of an inmate-year in California is beyond astronomical – $60,000 annually. State-level authorities, perhaps, sometimes, maybe have what it takes politically to make an organized counterattack against this kind of insanity. But that is definitely a hopeless task for some impoverished and crime-plagued municipality with no tax base and which already, like Detroit, can barely afford to deliver basic services, let alone pay for trials and hotel-rate prisons too.
If you want to see what the real collapse of American criminal justice, indeed, all law enforcement, looks like – or you’ve ever hoped to watch a live-action version of Mad Max Beyond Thunderdome – then just wait until this great idea is implemented.
The situation is completely analogous to both the tactics often used by lawyers to drive up the cost of litigation for the other side as a deterrent, and also what has occurred in the case of capital punishment. An extremely common argument against the death penalty in America is that, while it was until fairly recently in our history identical in cost to conducting any major felony trial, it is nowadays enormously expensive and time-consuming for the state to pursue a case with that punishment in mind.
And this is perfectly true, but the key questions are: how did it get that way, why is it so expensive, is the expense imposed a fair value for which we derive some comparable procedural benefit – or is it just spinning our wheels, can the expense be reduced significantly, and does it make practical and moral sense to scrutinize an execution case so much more strictly for error than a life-without-parole case?
Addressing those question are beyond the scope of this essay, but part of the answer is that those costs were inflated disingenuously and deliberately as part of a strategy by opponents of capital-punishment, who were indifferent to the actual benefits of the additional requirements, in order to generate this very disincentive to the process. It was also done to make this very argument possible for people who want the cover of being able to point to a ‘rational’ and ‘objective’ reason to explain their position. It is that same ‘starve-the-beast’ strategy, and those same opponents will therefore never let the cost go down.
The logical problem is this. The reason Life Without Parole is so much cheaper is because it does not require any of those additional time-and-resource consuming processes. It is bizarre to say it is worth spending another million dollars to make sure someone is not innocent if we are going to execute him, but that we should be indifferent to the results of that additional scrutiny, (which we are now never going to conduct), so long as we are simply going to lock up that potentially innocent man until he dies in his cell.
The case has to rely on the assumption that, while spending much less money, and avoiding the cost of those extra court processes, that the simple fact of extra time will yield the possibility of an occasional genuine (i.e. not ‘technical’) exoneration of a LWOP inmate who otherwise would have been executed, in a way similar to the way extra time was on the side of those exonerated from the false-rape-claims mentioned above.
But there doesn’t seem to be any support for that position at all, especially for the most recent crimes which were committed in the modern era of powerful forensics.
Instead, we almost always lock ’em up, throw away the key, and forget about them, and it does indeed save us money. But how good should we feel about that? If our concern for the innocent justifies spending the extra money, then we should be doing it here too. And if spending the extra money doesn’t help us identify the innocent, we shouldn’t have to do it just because it’s a capital case.
I probably sound like a capital punishment booster here, but I’m not. I’m just using it as an example to make a point. I really have no problem with people who are against the death penalty and admit it is simply a moral or religious preference. I respect such people and I really don’t mean to offend anybody or criticize anyone’s views.
However, I suspect the cost argument to be a case of cover-signalling since I’ve never heard a person making this case say, “Well, yes, I’m against the death penalty because the expected short terms costs are $300,000 more than LWOP. But, if those costs were only, say, $100K more, and the net present value definitely positive, then, sure, I’m all for it, go ahead. Rational cost-benefit and all that. It was that extra $200K that was keeping me on the fence when it came to matters of life and death. It’s all just a matter of exchange rates, really.”
Now, I made up the numbers, but they don’t seem too implausible. But, as we’ve seen, $300K only pays for five years more imprisonment in California, so the expected long term financial benefit in the above scenario is perhaps positive because we’ll probably execute the perp more than five years prior to the end of his natural life. One of the perverse consequences of the successful effort that has made imprisonment so ludicrously expensive is that the financial case execution (if anyone actually believes in it, which I doubt), collapses and capital punishment necessarily starts to become much more attractive.
But the purpose of this controversial diversion is to illustrate the point that when political forces are arrayed against a particular kind of crime or punishment, when they can somehow affect the cost of pursuing those prosecutions and punishments, and when cost becomes a critical decision factor for cash-strapped local prosecutors, then those opponents are very likely to do whatever they can to manipulate the system costs.
They will endeavor to raise those costs to be as high as they can get them by whatever means necessary, without any genuine interest in the benefit of those additional requirements, yet still able to use the cover of the claim that they are just protecting the integrity of the process and taking care to identify potentially innocent defendants. This is already a big problem in our system – a kind of exploit and failure mode which is in fact currently failing from being so exploited – and Stuntz’s proposal will only serve to its exacerbation.
IX.4. The War For The Power Of Discretion
Stuntz goes on to bemoan the gradual capture of the judge’s traditional powers over the disposition of trials by legislatures and prosecutors. Criminal judges, especially at the state level, once has considerable leeway, flexibility, and discretion, not only in terms of sentencing and interpretation, but also in terms of developing the law of crime itself through the common law system of precedents and novel holdings in cases of first impression.
And while ordinary county judges are not insulated from politics, their state and federal Supreme Court bosses usually are, and, let’s be honest, 99% of voters these days don’t pay any attention to what the local judges are doing, or even know their names, and they have zero competence to be able to fairly evaluate a judge’s performance. Again, judicial democracy is fraud of a sick joke and everybody knows it, but, also again, there are the considerations of ‘optics’ and ‘legitimacy’. That effective insulation meant they could rise above the mob when the the horde pleaded – with their awful, mindless mob mouths – “Please sir, I want some more law enforcement and public order” – to which a judge could reply, aghast, “What?!”
But the state legislatures had the nerve to actually codify the law in statutes as opposed to the old ALI ‘restatements‘ so that it would be easily available and referenceable, even for people who weren’t criminal lawyers. These codifications were also excruciatingly detailed and specific, leaving little wiggle room for a motivated jurist trying to find a creative way out of a jam.
Then the unthinkable happened, and the legislatures made a grab for the power to determine the severity of sentencing (which was mitigated to non-‘mandatory’ guidance recently by the holding in Booker (2005) ). The history of sentencing reform and the establishment of guidelines at the federal and state levels is long and complicated, and there were multiple rationales.
But a primary motivation was a feeling that the judges had gone soft and were abusing their positions to push back against the laws they were sworn to uphold using the power of their discretion over sentencing as their primary method. The accusation is that the judges were committing a breach of trust in the fulfillment of their traditional roles, and upending the law itself through unjustified acts of leniency.
Judicial discretion was granted in the hopes that judges would be like the ideal ones mentioned above (as as ‘God the Father’ is often described): judicious, wise, and reasonable; stern yet also merciful when warranted. But discretion relies on a certain amount of ambiguity with regard to the law and a particular act’s consequences, and it is only a stable political institution when it isn’t prone to constant abuse and systematic biases which exploit that ambiguity to pursue impermissible agendas.
Judges were doing that routinely, people were fed up, and they reacted. There are some lessons to be learned from that experience – for example about the real limits of power in a democracy – but one of them is absolutely not, “We should just give it all back to the judges so they can let more defendants go free again, because it worked so well last time.” At least, not unless and until you’ve got some way to tell that it’s safe to trust the judges again, perhaps because the mechanism of their appointment selects for those least likely to intrude on the political process. Just kidding. Good luck with that.
Discretion is power, and power can be used or abused, in a way that is hard to supervise when deployed by legal specialists, regardless of whether it is held by a judge or a prosecutor or a legislature. And it will inevitably and inescapably be held by someone, so the only question is, ‘by whom?’
In any contest for power in a system of law (that is, without using force) and which relies on human judgment (as opposed to being some kind of unalterable and automatic machine merely operated by human hands), some individual or group is inevitably the final arbiter of any particular dispute.
The legislatures tried to turn those judges into the hands that operated the machine the design of which they imagined they would control. And while not entirely successful, the various state congresses did make great strides in this direction. Combined with what Stuntz would call a cancerous corruption of the criminal law – endless new crimes and felonies with which to charge-stack, and rules that reduced the number of essential elements which made proving cases much easier – this effort, in actual practice, deposited much of the power of discretion in the hands of the much more politically sensitive prosecutors.
And, yes, that’s a big problem too, especially since most awful, abusive prosecutors will never be challenged for their abuses like the infamous Duke-Lacrosse-Case prosecutor Mike Nifong was when he happened to pick on some innocent defendants with the wherewithal and determination to resist his transgressions and expose his crimes during yet another false-rape-claim case.
But at least prosecutors can be held accountable, both to the law and to the voters, for malicious prosecution, (pursuing someone one shouldn’t). And they occasionally are held to account, as Nifong was. Whereas, on the flip-side of the coin (not pursuing a criminal whom one should prosecute) life-tenure judges are never held accountable to anyone when they make rules that unduly suppress or impede the execution of critical law enforcement functions.
And this was the problem. Judges are insulated from politics, but they also bear no responsibility for the provision of law and order in the communities that bear the burden of hosting these criminals, and their insulation (or ‘privilege’ if you like) threatens to fester into a callous indifference to the real-world consequences of their decisions, which become subordinate to ideologically-motivated agendas. Stuntz complains that prosecutors and politicians are two insulated from the life of the targets of law enforcement efforts, and from the communities in which they live. But pro-defendant judges were also too insulated from the needs of the victims.
And that insulation nearly spelled their doom. For a while, the popularity, credibility, and legitimacy of the courts in the public mind took a powerful hit. And, making use of the opportunity this popular sentiment represented, the other players in the game responded in the only way permitted by the system: to radially warp and distort the traditional working of the system itself it order to overcome the bench. My own view of things is that, especially at the highest levels, the trauma of the this war has made a deep impression on this generation of Justices, and they have resolved to keep their fingers closer to the pulse of public-opinion (wherever that comes from), are much more cautious about stepping too far out of its bounds, too often.
Again, we find that an arms race has delivered us into a mess of our own making, but out of which we have no idea on how to extricate ourselves.
But the mess might have some benefits, depending on your point of view. Stuntz says that a result of this history is the rise of ‘textualism‘ in the field of jurisprudence, which has been vigorously advocated by conservative-minded legal organizations such as the Federalist Society. He cites Scalia’s – the indisputable monarch of the movement – excellent and influential article, “The Rule of Law as a Law of Rules” as a exemplary exposition of the view of this type of legal formalism.
Stuntz hates it, of course, because textualism is necessarily a judicially constraining theory of jurisprudence, and Stuntz wants to expand the space of judicial decision making because he expects his allies on the bench will use it to launch a counterattack in the great war and let more black defendants go free.
On page 267, Stuntz finally gets to ‘Drugs (and Violence)’ and explains the heavy impact the drug war has had on our system of criminal justice. That banning psychoactive substances creates black markets in contraband which inevitably gives rise to violent – almost paramilitary – criminal gangs who fight for turf and market share is no new insight. That these gangs can effective take over neighborhoods and intimidate witnesses and juries is also nothing new. This make cases hard to win if you don’t relax the rules which, naturally, we did.
But the fact the valuable quantities of drugs can be easily hidden in small spaces had created the need to work some interpretive molestation upon the Fourth Amendment’s rights against unreasonable searches and seizures, and the threat of terrorism would later make its own contributions.
But there is a much deeper and more sinister aspect to the drug issue that is both very complex and very dangerous to discuss openly. It is indeed a dire problem on many levels.
The problem is that while ‘poverty’ does not cause crime, idle hands are the devil’s workshop, and a heavy-concentration of young men who are either not willing or able (or both) to hold down a job and get busy raising a family is a well-established recipe for disaster that was known to the ancients since time immemorial. This problem exists in our pockets of crime, no one has any good and politically-palpable idea of what to do about it, and the accelerating three legged stool of immigration, automation, and globalization is making it increasingly worse.
Without employing some drastic measures that are incompatible with the current norms of our society – that we aren’t even allowed to talk about without severe social sanction because they are so taboo – this situation practically guarantees the generation of all sorts of criminal activity, for kicks and for cash.
If you are a police chief, prosecutor, or politician, then tou want to prevent crime, especially violent crime, and especially violent crimes like burglaries that will spill over into your wealthier, safer neighborhoods whose inhabitants can get you fired very quickly, but who also make excellent targets for theft, muggings, or aggravated robberies because, as with banks, that’s where the money is.
Or is it? Because burglary is risky, and burglars don’t get rich. But what if there were some alternative draw, some other – necessarily criminal – way of making vast sums of money – the stuff of a young thug’s dreams – and that particular way was demonstrably irrepressible no matter what you did, so it might as well be made useful.
What if, furthermore, it was glorified and celebrated endlessly by your young thug’s subculture? And what if the violence that emerged out of that traffic – of a thing the sale, possession, and consumption of which arguably needs to be prohibited anyway – was almost entirely geographically contained in areas with zero political clout and mostly between the thugs themselves?
Why, it would act as an ideal honeypot! Your thugs will all converge on conducting that particular species of crime, and you can easily arrest, prosecute, and imprison the worst of them and then incapacitate them for long-durations so that they can’t get up to any other (more politically destabilizing) kinds of criminal activity during their youthful years, which, again, you believe they are certain to do and which, really, can’t be prevented.
And this is how the drug war works. There are very, very few people who actually, consciously think like this, putting all the pieces together into one extremely tragic but coherent picture. But the glue that holds certain lasting social institutions together is often unconscious and buried beneath some protective psychological firewalls.
Stuntz says we use the drug war and the recent distortions to our criminal justice system that make conviction and incarceration too easy precisely in this manner. They constitute a strategy – maybe the only possible strategy in the current political environment – to contain and control our problematic and crime-prone urban populations. And, what’s worse, because of the lies and contradiction inherent in this system, brought about because it is caught in the crossfire of our ceaseless political conflicts, we don’t even do this well. At all.
That is, we have done horrible violence – in skirmishes stretching over generations – to the integrity and humanity of our system because we refused to confront these dire problems in any other way. This is repulsive, infuriating, and deeply, deeply depressing, but it’s not clear that it’s also not the least worst option we have. And no one wants to go back to 1972. Welcome to reality; sometimes it’s ugly and it sucks, but we have to live in it anyway.
XI. Final Thoughts
If you ask people about the ideal qualities of a criminal justice system they will likely respond in the same way. We want a system that is humane, fair, just, accurate, cheap, efficient, quick, and effective at deterring, preventing, and punishing crime, so we can all live in peace and safety. We want a system focused on collecting and presenting evidence for determinations of guilt or innocence, and not one where clever lawyers and their guilty clients triumph by spinning webs of sophistry concerning technicalities. We want a system that respects our individual rights while achieving our collective social objectives. We want judges to be tough yet also compassionate, and to fairly call balls and strikes while refraining from stepping up to the plate.
There are inherent trade-offs between these ideals, of course, so there is always going to be lots of disagreement on the proper balances and the most appropriate amounts of effort and resources to allocate to the overall objective.
But instead, we’ve made a huge mess of it all, for all the reasons described above, and many more related to our never-ending political and ideological disputes. The sides have become entrenched in one giant, toxic quagmire, and we need to find a way out. But there is no way out that we can all agree upon, and so we sink further and further into the quicksand pit of our own making.
And so, I can respect and admire Stuntz for his noble effort to propose a strategy to rescue us from own own disaster.
But that proposal is hopelessly flawed.
And the reason it is flawed, the reason so many of these proposals are flawed, the reason so much of our entire political and intellectual life is irredeemably flawed, is because of our undying and rabid obsession with race and racism. Even though we knew better, we all hoped six years ago that this problem, this open, festering wound, was on its way to finally closing and healing. Instead, it keeps splitting wider and the infection’s fever rises higher and higher.
Stuntz thinks we have far too many black men in jail. He concedes that there will always be some disparity between the rates at which blacks are incarcerated and those of everybody else, because blacks commit much more crime. But, he maintains, the numbers in jail are still far too high.
But in the whole book he never really proves that fundamental premise, or even bothers to try. How do we know the rates are too high, instead of too low? By what moral or empirical standard can we measure the ‘right’ amount of black imprisonment? How is it possible to judge from numbers alone whether or not the incarcerations are necessary or deserved?
He never really tells us. There is just some inchoate assumption, lurking in the background, casting a giant shadow over the whole enterprise of his work, and absolutely critical to providing Stuntz and all his allies with their animating motivation.
That assumption is that there simply must be a better, less harsh way of getting the business of law and order done. That if you let, say, the least-worst bottom half of these characters go free, that somehow, things will work out better than they do now. We’ll surely, somehow figure out what to do. We’ve got the new, latest technique to try out, and we’ll do a better job this time, promise.
The assumption is that we don’t need to punish crime so severely in order to control it and provide for the public safety.
But this assumption, alas, is probably false. Or if not exactly false, then mitigated by a requirement for some, as yet unknown and unproven yet equally effective substitute for the drug war and for incarceration. And the development of these substitutes, whatever they will turn out to be, will necessarily involve our finally facing our great, dire problems, somehow.
And it’s about time. We have avoided facing those dire problems for generations now, and in innumerable ways. But they are not going away, and if we cannot muster the intellectual courage to face them openly, then we are going to forsake many other things just as precious as the dream for a just and humane system of American Criminal Justice.