William Stuntz’s Criminal Injustice
A conservative legal scholar comes to radical conclusions

William J. Stuntz was dying as he composed The Collapse of American Criminal Justice. Diagnosed with cancer and resisting mind-altering pain medication, he feverishly worked to complete the manuscript before expiring in March 2011.

The result of his labors is a magnificent book, which argues the American system of criminal justice has unraveled before our eyes—a phenomenon that has escaped the notice of most citizens.

Speaking at a Harvard Law event that honored the life of Stuntz, Columbia Law Professor Dan Richman explained, “[The book] offers a vivid picture of a world where we have an adversarial system without trials, a world where the jails are filled with African-American men. It’s a world where sentencing is untethered to reality.”

Readers of The Collapse of American Criminal Justice are transported directly to this world through a narrative that contextualizes the present moment in light of the past 150 years.

America has a structural level of incarceration that shatters historical norms. We incarcerate black men at a much higher rate than the height of Stalinist repression. A nation with 3 percent of the world’s population, we have 25 percent of the world’s prisoners. Most distressingly, in the urban communities hardest hit by the system, a vicious cycle of absent fathers and broken homes has taken root.

Unfortunately, a quick glance at the statistics underlying the criminal justice system can lead to deeply flawed conclusions. It is tempting to point to the historically low crime rate in the United States and conclude that the status quo is acceptable. Moreover, any defense lawyer will tell you the vast majority of their clients are guilty. Shouldn’t this be seen as a sign the system is working?

Stuntz argues strongly against this view and in favor of a more nuanced conception of the criminal justice system. The American public appears to judge incarceration in relation to the incidence of crime, while the scholarly literature on mass incarceration Stuntz is reacting to compares the United States to other Western democracies or historical levels of American incarceration.

Based on the first standard, our level of incarceration is much too low. “Out of the tens of millions of felonies that happen each year, American prosecutors convict 1.1 million felons, roughly 700,000 of whom must serve prison sentences,” Stuntz writes.

Increasing the rate of conviction, so that one third of felonies were punished, would result in a fivefold increase in criminal justice expenditures—from $200 billion to a staggering $1 trillion. The higher figure is roughly comparable to all government expenditures on health care and pensions today.

The second standard, reflecting the scholarly debate that Stuntz summarizes, reveals more. Compared to Western European peers, the United States has a lower crime rate—Austria, Denmark, the Netherlands, Spain, Sweden, Switzerland, and Great Britain have levels of burglary that are roughly twice as high—but ten times as many prisoners. Yet, it may still be imprudent to theorize about an incarceration ceiling based on Western industrialized peers. Crime is substantially lower in the U.S., critics might say.

What these two perspectives actually reveal is that the criminal justice system inevitably involves balancing community property rights and safety concerns with the overall consequences and efficacy of criminal prosecution. This may be a distressing conclusion—since the majority of crime will not, and has not historically, led to judicial sanction—but it is inescapable based on the data presented by Stuntz.

By this standard, our criminal justice system has fallen far out of balance, and the lack of awareness among the general population results from the primary targets of the system’s machinery, the urban poor.

This toxic status quo is also the product of an underappreciated set of historical circumstances, according to Stuntz. Liberals laud the legacy of the Warren Court, which enshrined state appointed counsel for indigent defendants, created Miranda rights, and prevented prosecutors from using evidence obtained by illegal seizures.

Stuntz argues these path-breaking reforms actually did more harm than good in the long run by inciting a conservative counter-reaction. Symbolic assaults on criminal coddling liberals by the likes of Ricard Nixon, George Wallace, and Ronald Reagan eventually became more than symbolic. Politicians on the left responded by implementing ‘tough on crime’ policies. This reached a high water mark under President Clinton, who arguably implemented the most punitive criminal justice policies in the last forty years.

In this environment, average sentences rose. This gave prosecutors more leverage to threaten extraordinarily high punishments and compel defendants to enter guilty pleas. Defendants—disproportionately from the inner city and generally appointed less competent counsel—faced juries composed of more affluent residents of the suburbs who did not hail from the communities dealing with violent crime. The resulting outcomes have produced the collapse we witness today.

Near the end of The Collapse of American Criminal Justice, Bill Stuntz reflects on the future of our criminal justice system based on his lifetime of scholarship in criminal law and criminal procedure. The results are at once refreshing and also quite surprising.

A conservative and a contributor to publications like The Weekly Standard and Christianity Today, Stuntz’s analysis nonetheless results in policy prescriptions more closely associated with the political left in America. Rather than focusing on punishment, the book advocates a greater investment in intelligent, preventative policing. Stuntz argues that average sentences must be reduced, public defense must be funded at a dramatically higher level, and steps must be taken to remove the overwhelming reliance on plea-bargaining. The drug war should be wound down, or at the very least de-emphasized.

Yet, his prescription also has a deeply conservative element. If criminal justice is about balancing community interests and the effects of prosecution, as Stuntz would suggest, the communities dealing with high crime rates are best equipped to handle these questions. This leads Stuntz to advocate for greater federalism in the execution of criminal justice. Juries should come from the communities where crimes are taking place. For example, suburban residents of Chicago’s sprawling Cook County are poorly equipped to serve on juries dealing with inner city violence and drug crime.

There is a growing awareness of the problems identified in The Collapse of Criminal Justice, in no small part due to the book’s impressive sales, coupled with the success of titles like Michelle Alexander’s The New Jim Crow and Paul Butler’s Let’s Get Free. In early March, even conservative culture warrior Pat Robertson came out in favor of marijuana legalization. Yet, mass incarceration is not a phenomenon that will be easily displaced. Conservatives and liberals alike would benefit from Bill Stuntz’s beautifully argued tome from the brink of death.

In the final pages, Stuntz writes, “The criminals we incarcerate are not some alien enemy. Nor, for that matter, are the police officers and prosecutors who seek to fight crime in those criminals neighborhoods. Neither side of this divide is ‘them.’ Both sides are us.” It will take a more full appreciation of this fundamentally inclusive message to overturn the scourge of mass incarceration and bring the criminal justice system back from collapse.