Where American criminal justice went wrong

Written by on 21st April 2012

The Boston Globe, February 26, 2012

William Stuntz, a Harvard Law School professor, who recently passed away was highly respected in the field of criminal justice. Interestingly, he was a political conservative. It’s usually liberals who are more concerned about the prison population and finding better ways to deal with criminal issues. The Boston Globe, this past February published a review of professor Stuntz’ last major work, a book entitled The Collapse of American Criminal Justice.

Clearly the American justice system has fallen off the tracks with the result that the United States now incarcerates 1/4 of all prisoners in the world. We are imprisoning a higher percent of our population than Stalin did of Russians in the 20th century.

If you are interested in Stuntz’ ideas, you can pick up his book at Amazon or a local bookstore. You can read the Globe’s account by clicking on the Boston Globe link above. Or just read on below, where I’ve pulled a few choice quotes from the article.


The book was written in a hurry. It had to be, because William Stuntz was dying, and the story he wanted to tell was long and complicated. It would be the Harvard Law School professor’s final major work, a sweeping indictment of the system he had been studying for 25 years.

Stuntz was 49 when he found out he had stage four colon cancer. For the remaining three years of his life, he worked on the book whenever he could: in his office at Harvard; at his family’s home in Belmont; even at the Massachusetts General Hospital Cancer Center, where he would sit with his laptop in the infusion chair and type. Stuntz passed up pain medication so he could think more clearly. In the final days, after he entered hospice care, he had his assistant mail him a draft of his manuscript so he could go over any last minute changes.

What drove Stuntz to finish the book — even as he continued teaching classes and trying to spend as much time as he could with his wife and three children — was a belief that something had gone fundamentally awry in America. Stuntz, an evangelical Christian and an avowed conservative, wanted people to grasp the profundity of the crisis he had observed — how, over the past 50 years, our criminal justice system had been transformed into an unfair, amoral bureaucracy–one that had given up on the very idea of justice.

IN 2010, THE MOST recent year for which the Justice Department has figures available, there were an estimated 2.3 million adults in jail or prison in the United States. That means nearly 1 in 100 American adults are behind bars, an incarceration rate more than five times higher than it was 40 years ago. The numbers for African-Americans are even more grave: According to the Sentencing Project, a Washington think tank, a third of all black males born today will serve time at some point in their lives.

Concern about the prison population is usually a liberal issue, but Stuntz, who favored small government, opposed abortion, and made no secret of voting Republican, was driven in his academic work by a sense of concern for the disenfranchised and the poor that would have struck many members of his party as unforgivably left-wing. It is precisely because Stuntz was such a peculiar political animal that his book – which has been praised in outlets as politically diverse as the Nation and the National Review, and has been endorsed by the likes of Richard Posner and former Supreme Court Justice John Paul Stevens – is now being described by legal scholars as a work of potentially huge influence.

Under the current system, justice is essentially administered by prosecutors, who have every incentive to threaten defendants with the harshest possible sentence–and indirectly driven by politicians, who court the favor of voters by passing more and tougher laws. The practical result, Stuntz writes, is that the criminal justice system is now anything but local, and mostly indifferent to the people whose lives are most directly affected by it. Poor minorities who live in the urban neighborhoods with the most crime are living under laws passed to please middle-class voters who live elsewhere, and processed by a system built to force a guilty plea rather than determine whether they actually deserve to go to prison.

Stuntz wanted to show that there was nothing inevitable about our present circumstances–that what has gone wrong in our criminal justice system is the result of decisions and miscalculations that can be identified and understood. That doesn’t mean they can be easily annulled, of course, but it does provide hope that change is possible.

George Schussel
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