Imprisoned in America

This book review was originally printed in:

David Garland

William J. Stuntz
415pp. Harvard University Press. £25.95 (US $35).
978 0 674 05175 1

Published: 30 May 2012

The scandal of criminal justice in the United States is by now a familiar one, its facts are well known, its causes extensively canvassed. So what can another book tell us that we don’t already know? A surprising amount, as it turns out. The existing analyses are mostly conducted by sociologists and political scientists. William J. Stuntz brings the perspective of a law professor – focused on substantive law, procedural rules, and the evolution of legal doctrine. He reminds us that, whatever its underlying social, political and cultural causes, the build-up of racialized mass imprisonment was the product of legal actors – police, prosecutors and judges – and the legal rules and organizational incentives that governed their actions. And if America’s astonishing levels of imprisonment, its harsh sentencing, and its racial disparities are tolerated, it is because the Supreme Court has repeatedly affirmed that they comply with constitutional law.

The book also offers a different political perspective. Most critiques of American criminal justice are by liberals and progressives, but Bill Stuntz – who died, aged fifty-two, shortly before this book was published – was a registered Republican, an evangelical Christian, and a revisionist thinker with a fondness for “law and economic” perspectives. His viewpoint is refreshingly unpredictable and runs against the grain of conventional wisdom. It is a devastatingly critical account nevertheless. American criminal justice is, he writes, devoid of the rule of law, “wildly unjust” and the “harshest in the history of democratic government”.

The core problem, Stuntz says, is the massive and unrestrained power of police and prosecutors. Over the past forty years, criminal law in the US has become all-encompassing. There are now 40,000 federal criminal offences – above and beyond the state crimes that constitute the vast majority of offences (and which also grow apace). Many of these new offences, above all, drug and gun legislation, require little evidence, no proof of criminal intent, admit of little mitigation, and carry harsh penalties. Instead of restraining officials, criminal law provides them with an extensive battery of weapons which they can use as they see fit.

The criminal trial has virtually disappeared

Armed with these discretionary powers, prosecutors pile on charges. (Earlier this year, a New Jersey student who spied on his room-mate with a webcam was convicted by a state court of fifteen separate offences which carried a potential ten-year prison sentence, though he was eventually jailed for thirty days and fined $10,000.) Easy-to-prove charges are used to convict individuals suspected of hard-to-prove crimes – so much so that Stuntz suggests the decades-long “war on drugs” is best understood as an oblique attempt to combat urban violence. (“The war on drugs and the politics associated with it makes sense only on the assumption that drugs were not the war’s primary target. Violence was.”) Be that as it may, such “pretextual” prosecutions are now a trademark of the American criminal justice system. When prosecutors were unable to convict Martha Stewart on charges of insider trading, they charged her instead with lying to federal investigators. As they say in Washington, it’s never the crime, always the cover-up.

Martha Stewart went to trial, was found guilty and sent to prison. But the vast majority of offenders respond to prosecutorial pressure by settling for a plea bargain and a lesser sentence. Ninety-five per cent of all felony convictions now result from a guilty plea. The criminal trial has virtually disappeared. The American defendant’s fate is decided not by a jury of peers, but by powerful officials with virtually unchecked discretion.

Without this cut-price assembly-line adjudication, mass imprisonment would not be possible. And without rampant discretion, one would not have such scandalous disparities. African Americans exhibit high rates of criminal violence, so we might expect them to be over-represented in prison, but not to the current extent. They are nine times more likely than white Americans to serve prison sentences for drug crime, though about the same proportion of each group uses illegal drugs. And unequal justice includes under-protection as well as over-punishment. The homicide rate in the affluent, racially integrated neighbourhood of Hyde Park, Chicago, is 3 per 100,000. In adjacent Washington Park, where most residents are poor and black, the rate is twenty-six times higher.

As Stuntz tells it, the problem is the expansion of federal power and symbolic politics, at the expense of local control over criminal justice. Historically, federal authorities had little responsibility for crime since the Constitution allocated “police powers” to state and county governments. That began to change in the early twentieth century when, in the course of campaigns against “white slavery”, gambling, drugs and alcohol, federal authorities devised various means to circumvent constitutional restrictions on their powers. Racketeers like Al Capone were charged with tax offences. Prostitution became a federal offence if the women were carried across state lines. Gambling could be a federal crime because lottery tickets were sent via the US Mail. The law became a game of “bait and switch” and the federal government became a player in crime control.

Today, black crime is mostly governed by white judges and white politicians, and by the white voters who elect them

As crime became a national issue, and as the older common law was replaced by stricter statutory prohibitions, local control became attenuated and symbolic politics prevailed. And this, according to Stuntz, is at the very root of the present problems. One of his most radical claims is that neighbourhood-level democratic control of criminal justice can produce lenient, equitable and effective crime control. Foreign observers are often shocked by the politicized character of American criminal justice, and view the popular election of prosecutors, judges and police chiefs as threats to impartial justice. Stuntz takes the opposite view, insisting that the system has broken down because local people have lost control of criminal law and community juries no longer shape legal outcomes. (He has little faith in policy-making by professionals and experts, noting that their influence on American justice has been “entirely for the worse”.) In support, he presents a somewhat idealized historical account of criminal justice in northern cities in the late nineteenth century. In contrast to poor African Americans today, who remain largely excluded, working-class immigrants in the Gilded Age were integrated into local political machines, enlisted in the police forces, and served on juries, thereby making the law “more lenient, more democratic, less discriminatory, and more effective than today’s counterpart”. These same local political processes still operate. But they are no longer effective because urban law enforcement is controlled by suburban voters who have little experience of, or stake in, the realities of urban crime. “Today, black crime is mostly governed by white judges and white politicians, and by the white voters who elect them.” The result is harsh, exclusionary justice with little concern for how it affects black communities.

When political checks and balances fail, the Supreme Court is supposed to safeguard against arbitrary power and unequal treatment. So why hasn’t the Court remedied these problems? Stuntz’s answer will provoke debate in American law schools for years to come. He argues that under Chief Justice Earl Warren between 1953 and 1969, the Supreme Court made the mistake of pursuing procedural reform – which he describes (with some exaggeration) as wholly counterproductive – while shying away from the path of substantive law reform, based on the 14th Amendment’s guarantee of “equal protection”. Liberals will be outraged by this claim – for them, the Warren Court was a high point of constitutional reform. But conservatives will be aghast too, since Stuntz would have the courts intervene to promote equal protection, even though this would make for a more radically activist judiciary.

Stuntz traces how, in the years following the Civil War, the Court sought to provide former slaves with the protections that the 14th Amendment had promised. But the Court soon abandoned this pursuit, ruling in Slaughterhouse (1873), United States v Cruikshank (1876) and United States v Reese (1876) that the law should be narrowly construed in a way that refused blacks protection. The result was that Reconstruction collapsed and southern blacks were left to their fates. Eighty years later, when the Court again took up the challenge of civil rights, it relied not on the 14th Amendment but instead on an expansive reading of the Bill of Rights’ procedural guarantees. Thus Mapp v Ohio (1961) excluded from trial evidence obtained through illegal searches; Gideon v Wainwright (1963) guaranteed the right to counsel in felony cases; and Miranda v Arizona (1966) required the police to apprise suspects of their rights to counsel and against self-incrimination.

According to Stuntz, this focus on procedural propriety was a colossal error. The new rules made trials more costly, so prosecutors sought to avoid trials and secure plea bargains instead. The rules overturned convictions based on improper process, but did nothing to restrain the expansion of criminal law, the imposition of harsh punishment, or the disparate impacts of discretionary decisions. Worse still, the Court’s actions fuelled a backlash that expanded criminal liability and increased penalties. Within a few years, the pendulum had swung back and mass imprisonment was under way.

The Collapse of American Criminal Justice is a powerful indictment of the US system, and a history of its unravelling. But its author insists that a legitimate, effective criminal justice might be attained if American constitutional democracy can be properly brought to bear. Thus his Epilogue begins “Hope can be a powerful force” and proposes a series of radical reforms: Get the federal government out of criminal justice. Restore local democratic control. Develop an “equal protection” jurisprudence. Hold more jury trials. Empower judges to review guilty pleas. Increase policing. Decrease punishment. Scale back the war on drugs. Few of these proposals are well worked out, and being legal-system reforms, they don’t address the race and class politics that drive America’s penal state. But they mostly push in the right direction.

For those inclined to hope, there are signs that the era of prison expansion is coming to an end. Incarceration rates are no longer rising; cash-strapped states seek to downsize prisons. Tough-on-crime hawks such as Newt Gingrich and William Bennett now criticize the overuse of costly imprisonment. And the Supreme Court has begun to chip away at the edifice of America’s cruel and unusual system – intervening to remedy Californian prison conditions; abolishing the juvenile death penalty; hearing arguments against life-without-parole for juveniles; and ruling that defendants who choose to plea bargain retain their right to “effective assistance of counsel”.

But we should remember there has never been, in human history, a prison system the size of America’s current one. And there has never been a decarceration process that has scaled back such a massive institution. To downscale the US system to something approaching the international norm would require concerted political, legal and administrative action for decades to come, together with the popular support needed to make that viable. And therein lies the rub. Bill Stuntz believed that, with truly representative local democracy, the American people would create an effective, lenient and non-racist criminal justice. Few non-American observers would be quite so sanguine.

David Garland is Arthur T. Vanderbilt Professor of Law and Professor of Sociology at New York University. His Peculiar Institution: America’s death penalty in an age of abolition, 2010, is due to appear in paperback later this year.