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The Collapse of American Criminal Justice
The rule of law has vanished in America's criminal justice system. Prosecutors now decide whom to punish and how severely. Almost no one accused of a crime will ever face a jury. Inconsistent policing, rampant plea bargaining, overcrowded courtrooms, and ever more draconian sentencing have produced a gigantic prison population, with black citizens the primary defendants and victims of crime. In this passionately argued book, the leading criminal law scholar of his generation looks to history for the roots of these problems--and for their solutions.
"The Collapse of American Criminal Justice" takes us deep into the dramatic history of American crime--bar fights in nineteenth-century Chicago, New Orleans bordellos, Prohibition, and decades of murderous lynching. Digging into these crimes and the strategies that attempted to control them, Stuntz reveals the costs of abandoning local democratic control. The system has become more centralized, with state legislators and federal judges given increasing power. The liberal Warren Supreme Court's emphasis on procedures, not equity, joined hands with conservative insistence on severe punishment to create a system that is both harsh and ineffective.
What would get us out of this Kafkaesque world? More trials with local juries; laws that accurately define what prosecutors seek to punish; and an equal protection guarantee like the one that died in the 1870s, to make prosecution and punishment less discriminatory. Above all, Stuntz eloquently argues, Americans need to remember again that criminal punishment is a necessary but terrible tool, to use effectively, and sparingly.
"The Collapse of American Criminal Justice" takes us deep into the dramatic history of American crime--bar fights in nineteenth-century Chicago, New Orleans bordellos, Prohibition, and decades of murderous lynching. Digging into these crimes and the strategies that attempted to control them, Stuntz reveals the costs of abandoning local democratic control. The system has become more centralized, with state legislators and federal judges given increasing power. The liberal Warren Supreme Court's emphasis on procedures, not equity, joined hands with conservative insistence on severe punishment to create a system that is both harsh and ineffective.
What would get us out of this Kafkaesque world? More trials with local juries; laws that accurately define what prosecutors seek to punish; and an equal protection guarantee like the one that died in the 1870s, to make prosecution and punishment less discriminatory. Above all, Stuntz eloquently argues, Americans need to remember again that criminal punishment is a necessary but terrible tool, to use effectively, and sparingly.
432 pages, Hardcover
First published September 30, 2011
67 people are currently reading
1030 people want to read
About the author
William J. Stuntz
25 books4 followersWilliam J. Stuntz (July 3, 1958 – March 15, 2011) was a criminal justice scholar and a professor at Harvard Law School.
Stuntz was born in Washington, D.C. and grew up Annapolis, Maryland. He received his Bachelor's at The College of William & Mary and his degree in law at University of Virginia School of Law. Subsequently he clerked for Associate Supreme Court Justice Lewis F. Powell, Jr. Following this, Stuntz taught at the University of Virginia School of Law for over a decade, before moving to Harvard Law School in 1999. In March 2011 he died of cancer.
Stuntz's last work, published posthumuously, is The Collapse of American Criminal Justice.
Stuntz was born in Washington, D.C. and grew up Annapolis, Maryland. He received his Bachelor's at The College of William & Mary and his degree in law at University of Virginia School of Law. Subsequently he clerked for Associate Supreme Court Justice Lewis F. Powell, Jr. Following this, Stuntz taught at the University of Virginia School of Law for over a decade, before moving to Harvard Law School in 1999. In March 2011 he died of cancer.
Stuntz's last work, published posthumuously, is The Collapse of American Criminal Justice.
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October 2, 2013
This book made me more uncomfortable than any book I have read in at least the past three years. That is an enormous testament to its brilliance and importance. Stuntz claims that we have created a criminal justice system “both harsh and ineffective.” If you accept as a basic principle that the criminal justice system exists to minimize the harm caused to all Americans, both criminals and non-criminals, then this is a damning indictment indeed.
Criticism of the criminal justice system is the rule, not the exception, in the academy, but the late Stuntz was that rarest of creatures—the openly-evangelical Christian academic. He approaches the issue from a different perspective than usual. He also possessed an exceptional clarity of thinking and discipline of thought.
The Collapse of American Criminal Justice extensively maps the broad sweep of the history of criminal law and crime in America. Particular emphasis is given to regional trends and the differences therein, from the generally effective (and fair and just) system in New England to southern lynching to frontier justice in the west. His work here will be of great interest to any student of David Hackett Fischer’s Albion’s Seed. More relevant to modern criminal justice, I think, is his equal emphasis on the rise of procedure. “[T]he 1910 version of the Cyclopedia of Law and Practice devotes only fifteen pages to the issue of search and seizure, but in the 1932 version it runs 114 pages.” Stuntz doesn’t see this as a good thing, he accuses the Supreme Court of making “the constitutional law of criminal justice into something narrower and less useful: a constitutional law of criminal procedure.” The Warren Court doubtless acted with good intent, but “in criminal justice as elsewhere, unintended consequences often swamp the intended kind.”
Why is this so? I’ll explain, but first let me take a step back. To many a student of the law, including this reviewer (one with no affection for the Warren Court), our constitutional criminal procedure is a bedrock of the American Way, even liberal democracy itself. Stuntz argues though—forcefully—that the procedural protections were a product of chance. He traces them to a handful of high profile cases in the dusk of colonial America. Yes, so, weren’t most rights enshrined in the Bill of Rights and the original Constitution in response to narrow violations of rights under British rule? They were, but Stuntz points out that each case can be seen as a matter of protecting Free Speech—a rather novel and dangerous concept at the time—instead of a disparate collection of procedural rights for criminals. Does Stuntz offer no protection for the accused, then? No, but he points to substantive, not procedural, protections as optimal, referencing the protection of substantive rights in the Declaration of the Rights of Man and of the Citizen, suggesting that our procedurally oriented protections were a matter of chance (fat lot of good the former did many French during their own revolution).
Returning to my earlier point, the rise of procedure during the Warren Court (and, importantly, well before) is important because it did not exist in a vacuum. Contrary to popular wisdom, the accused had real protection before said rise. Stuntz points to Due Process and especially Equal Protection (the earlier forms of which have really lost favor). More important, I think, was the protection offered by a common law tradition firmly rooted in a requirement of the requisite mens rea, or “guilty mind.”
Things changed. Most of us are probably familiar (broadly speaking) with Prohibition, begun with the 18th Amendment and ended with the 21st. It’s widely held as one of our great failures. John Hart Ely mocked it as a misguided attempt at crudely touching substantive law with a constitutional system better suited for procedure (Ely and Stuntz would have disagreed on much). Stuntz sees it as a relic of history we should point to with pride. Not because banning alcohol is a good idea; it’s a terrible idea. But because Prohibition was honest. The People wanted to do something. That something, questionably, couldn’t be done constitutionally. They passed an amendment to the Constitution through the prescribed means. It didn’t work. They again amended the Constitution; again it was through the prescribed means. The People perhaps learned something about the inherent game of whack-a-mole that is vice prohibition. Would be prohibitionists learned another lesson. We saw many more prohibition movements: against opium, against prostitution, against drugs in general. None were pursued through the channels Prohibition was despite their similar questionable constitutionality. Quite the opposite. What was more, while Prohibition never outlawed the possession itself of alcohol, the new prohibitions frequently did so.
Modern procedural protections started to pop up around this time as well, culminating during the era of the Warren Court. The timing belies the notion that these protections are rooted in the Constitution. In context, they look even more like accidents of history. They end up serving the rich and recidivists rather than the most vulnerable. And who suffers the most when the inevitable backlash comes? The poor, the first-time offender, the innocent (as any good defense lawyer will tell you, the innocent defendant faces the distinct disadvantage that they don’t know what really happened). The Nixon revolution brings non-Originalist jurors bent toward law-and-order, but the law-and-order is long since a matter of faith by the time the next wave of Originalist arrives. Meanwhile, facing a crime wave, Democrats are no more interested in being “soft on crime” than Republicans are. Substantive protections continue to wither way: better to game the system than to lack a guilty mind.
And roughly there are depressing story rests. Crime has been in a decades-long freefall, but incarceration rates remain astronomical. The costs eat away at the public fisc, and locking away so much of a generation of black, male youth likely does more harm to black America than any number of public programs and anti-discrimination efforts could outweigh. There is, however, reason for hope. The taint of being soft on crime remains in theory, but crime has largely left the public consciousness, public ignorance of how much crime rates have dropped notwithstanding. Both Democrats and, probably better insulated politically, Republicans have a new freedom to act. It is with legislators that Stuntz pins his hopes. I think he’s overly optimistic; a mass shooting or one other high-profile incident can change so much. On the other hand, I think he’s far too pessimistic on reform through the judiciary. Judges on the Left have always had sympathies with the accused and are well insulated politically. The Originalist argument—and there is a strong one by Stuntz’s own narrative, although he doesn’t admit it—is a powerful one for judges on the Right, similarly politically insulated from the usual charges of RINOism.
There is so much more to say, but this review has already gone on far too long. Much worth reading and revolutionary has been omitted or only touched on in passing. I read this book quite some time ago, putting the review off for another time. Even all these months later, though, the heart (if not all the details, I fear a mistake lurks somewhere above) bursts forth with all available vehemence. It’s changed my thinking, and thoroughly so. What more could you ask of a book?
Criticism of the criminal justice system is the rule, not the exception, in the academy, but the late Stuntz was that rarest of creatures—the openly-evangelical Christian academic. He approaches the issue from a different perspective than usual. He also possessed an exceptional clarity of thinking and discipline of thought.
The Collapse of American Criminal Justice extensively maps the broad sweep of the history of criminal law and crime in America. Particular emphasis is given to regional trends and the differences therein, from the generally effective (and fair and just) system in New England to southern lynching to frontier justice in the west. His work here will be of great interest to any student of David Hackett Fischer’s Albion’s Seed. More relevant to modern criminal justice, I think, is his equal emphasis on the rise of procedure. “[T]he 1910 version of the Cyclopedia of Law and Practice devotes only fifteen pages to the issue of search and seizure, but in the 1932 version it runs 114 pages.” Stuntz doesn’t see this as a good thing, he accuses the Supreme Court of making “the constitutional law of criminal justice into something narrower and less useful: a constitutional law of criminal procedure.” The Warren Court doubtless acted with good intent, but “in criminal justice as elsewhere, unintended consequences often swamp the intended kind.”
Why is this so? I’ll explain, but first let me take a step back. To many a student of the law, including this reviewer (one with no affection for the Warren Court), our constitutional criminal procedure is a bedrock of the American Way, even liberal democracy itself. Stuntz argues though—forcefully—that the procedural protections were a product of chance. He traces them to a handful of high profile cases in the dusk of colonial America. Yes, so, weren’t most rights enshrined in the Bill of Rights and the original Constitution in response to narrow violations of rights under British rule? They were, but Stuntz points out that each case can be seen as a matter of protecting Free Speech—a rather novel and dangerous concept at the time—instead of a disparate collection of procedural rights for criminals. Does Stuntz offer no protection for the accused, then? No, but he points to substantive, not procedural, protections as optimal, referencing the protection of substantive rights in the Declaration of the Rights of Man and of the Citizen, suggesting that our procedurally oriented protections were a matter of chance (fat lot of good the former did many French during their own revolution).
Returning to my earlier point, the rise of procedure during the Warren Court (and, importantly, well before) is important because it did not exist in a vacuum. Contrary to popular wisdom, the accused had real protection before said rise. Stuntz points to Due Process and especially Equal Protection (the earlier forms of which have really lost favor). More important, I think, was the protection offered by a common law tradition firmly rooted in a requirement of the requisite mens rea, or “guilty mind.”
Things changed. Most of us are probably familiar (broadly speaking) with Prohibition, begun with the 18th Amendment and ended with the 21st. It’s widely held as one of our great failures. John Hart Ely mocked it as a misguided attempt at crudely touching substantive law with a constitutional system better suited for procedure (Ely and Stuntz would have disagreed on much). Stuntz sees it as a relic of history we should point to with pride. Not because banning alcohol is a good idea; it’s a terrible idea. But because Prohibition was honest. The People wanted to do something. That something, questionably, couldn’t be done constitutionally. They passed an amendment to the Constitution through the prescribed means. It didn’t work. They again amended the Constitution; again it was through the prescribed means. The People perhaps learned something about the inherent game of whack-a-mole that is vice prohibition. Would be prohibitionists learned another lesson. We saw many more prohibition movements: against opium, against prostitution, against drugs in general. None were pursued through the channels Prohibition was despite their similar questionable constitutionality. Quite the opposite. What was more, while Prohibition never outlawed the possession itself of alcohol, the new prohibitions frequently did so.
Modern procedural protections started to pop up around this time as well, culminating during the era of the Warren Court. The timing belies the notion that these protections are rooted in the Constitution. In context, they look even more like accidents of history. They end up serving the rich and recidivists rather than the most vulnerable. And who suffers the most when the inevitable backlash comes? The poor, the first-time offender, the innocent (as any good defense lawyer will tell you, the innocent defendant faces the distinct disadvantage that they don’t know what really happened). The Nixon revolution brings non-Originalist jurors bent toward law-and-order, but the law-and-order is long since a matter of faith by the time the next wave of Originalist arrives. Meanwhile, facing a crime wave, Democrats are no more interested in being “soft on crime” than Republicans are. Substantive protections continue to wither way: better to game the system than to lack a guilty mind.
And roughly there are depressing story rests. Crime has been in a decades-long freefall, but incarceration rates remain astronomical. The costs eat away at the public fisc, and locking away so much of a generation of black, male youth likely does more harm to black America than any number of public programs and anti-discrimination efforts could outweigh. There is, however, reason for hope. The taint of being soft on crime remains in theory, but crime has largely left the public consciousness, public ignorance of how much crime rates have dropped notwithstanding. Both Democrats and, probably better insulated politically, Republicans have a new freedom to act. It is with legislators that Stuntz pins his hopes. I think he’s overly optimistic; a mass shooting or one other high-profile incident can change so much. On the other hand, I think he’s far too pessimistic on reform through the judiciary. Judges on the Left have always had sympathies with the accused and are well insulated politically. The Originalist argument—and there is a strong one by Stuntz’s own narrative, although he doesn’t admit it—is a powerful one for judges on the Right, similarly politically insulated from the usual charges of RINOism.
There is so much more to say, but this review has already gone on far too long. Much worth reading and revolutionary has been omitted or only touched on in passing. I read this book quite some time ago, putting the review off for another time. Even all these months later, though, the heart (if not all the details, I fear a mistake lurks somewhere above) bursts forth with all available vehemence. It’s changed my thinking, and thoroughly so. What more could you ask of a book?
April 28, 2012
This is a pretty phenomenal book - tracing the history of American Criminal Justice, and showing how it has come to be such a complete failure. Stuntz's counter-intuitive claim that the Warren Court's focus on procedural changes actually facilitated the collapse turns out to be pretty convincing, with the exception of his very strained take on the 4th Amendment (he seems not to be worried about cases like the Bush wiretap scandal and other cases when innocent people can be searched or targeted in dragnets). Nevertheless, the overall claim that the real problem with Criminal Justice is not procedure but substantive law, and that we should do a much better job of enforcing the 14th Amendment's guarantee of Equal Protection of the Law is a hugely important one that everyone should think about.
March 18, 2012
I was disappointed. There's a lot of opinion-stated-as-fact, and also a lot of repitition. This book is 400+ pages, with 100 pages of notes and 300 pages of regular text. The 300 pages of regular text could be distilled into a twenty-page law review article. Most of the remaining 280 pages consists of the author repeating the same ideas over and over again.
I was particularly interested to learn about the author's low opinion of police and prosecutor discretion. The book has some decent history and analysis of how discretion has changed over the years. But the part about why discretion is unjust is short on analysis and long on repitition of the author's conclusion.
The internet says the author was a good law school teacher, and this book was published after he died, so maybe the repetition and vague sense of emptiness is a result of those who survived him trying to make a book-length argument out of what should have been an op-ed article.
The internet also says the author went from law student to law clerk to law professor -- no mention of practice. One year out of every five of their careers, professors of criminal law and police detectives should trade places.
I was particularly interested to learn about the author's low opinion of police and prosecutor discretion. The book has some decent history and analysis of how discretion has changed over the years. But the part about why discretion is unjust is short on analysis and long on repitition of the author's conclusion.
The internet says the author was a good law school teacher, and this book was published after he died, so maybe the repetition and vague sense of emptiness is a result of those who survived him trying to make a book-length argument out of what should have been an op-ed article.
The internet also says the author went from law student to law clerk to law professor -- no mention of practice. One year out of every five of their careers, professors of criminal law and police detectives should trade places.
March 7, 2012
Just a fantastic overview of the American criminal justice "system." Stuntz was a legal scholar of the first rank, but this book is so much more than just a review of ConCrimPro black-letter law: Stuntz weaves together demographic, political, and legal history with a healthy helping of legal analysis and political theory into a coherent theoretical framework, then concludes with some creative (if not particularly plausible) suggestions for improving our woefully broken approach to criminal justice. And I should note that my sense that his suggestions are implausible speaks poorly of American society, not of the suggestions.
I think this would be accessible to the legal lay-reader--Stuntz does not assume familiarity with the basic constitutional provisions and caselaw he discusses, and he writes very clearly. And even on those rare points where I disagree with his analysis or prescriptions, I find them thoughtful and provocative, well worth discussion.
This is a masterpiece of legal and political thought.
I think this would be accessible to the legal lay-reader--Stuntz does not assume familiarity with the basic constitutional provisions and caselaw he discusses, and he writes very clearly. And even on those rare points where I disagree with his analysis or prescriptions, I find them thoughtful and provocative, well worth discussion.
This is a masterpiece of legal and political thought.
December 24, 2013
A (sort of) interesting history of how we have treated criminals in the U.S. It illustrates the failed promise of equal protection and the abandonment of reconstruction, and the destructive effects of prhibition and it's cousin the anti-drug crusade. It also highlights the perils of a judicial approach that extracts plea bargains by creating a blanket of shades of crimes that make trial extremely risky. For example, historically about 1/3 of guilty verdicts came from trial. Today that rate is 1/20. In terms ofescaping the current environment, the book's prescriptions ring hollow. The role of the media is completely unexamined.
May 13, 2014
Stuntz did a great job putting the current American criminal justice system in its historical and political context--and offers a critique of the Warren Court I hadn't really thought about before reading the book. I'm not fully persuaded by it, but I think that Warren & co. wrote decisions that were easily undermined by technical workarounds is beyond dispute. Whether or not they deserve as much blame as he gives them, I'm less sure.
He made some broad cultural assumptions at times, but generally stays on point with his critiques. Certainly anyone interested in how we ended up with our present criminal justice system should read this.
He made some broad cultural assumptions at times, but generally stays on point with his critiques. Certainly anyone interested in how we ended up with our present criminal justice system should read this.
Want to read
February 5, 2012Stuntz was my classmate in law school. This book is a brilliant critique of the American criminal justice system, with important suggestions for reform. Stuntz was an outstanding yet humble law professor (Harvard Law) and legal scholar, and his recent death is a major loss to legal scholarship.
August 20, 2020
I can't give this any more stars just because it was so much like a law textbook that I couldn't understand it. I think I have the gist of his arguments and have some quotes below but they may be out of context. If you start this and discover that it's just too much legalese for you then just read the last chapter and the epilogue.
p. 7-If criminal justice is to grow more just, those who bear the costs of crime and punishment alike must exercise more power over those who enforce the law and dole out punishment.
p. 44-The descendants of black slaves constitute roughly 40 percent of the nation's inmates though a mere 13 percent of its general population.
p. 77-Mill [John Stuart Mill in his famous book On Liberty] argued that legal punishments should be triggered only when defendants injure others; a desire to police public morals is not a sufficient reason to incarcerate offenders.
p. 139-Large police forces are correlated with low crime rates today as well. Jurisdictions like New York that have seen the size of local police forces rise the most over the past two decades have also seen crime fall the farthest and prison populations rise the least. In less well-policed places, prison populations and violent crime either have risen more or fallen less.
p. 288-Putting more police officers on city streets belongs on a very short list of policy moves that should reduce both crime and the number of prisoners.
p. 294-The true surprise is that, judging by polling data, the level of black distrust of the police is essentially unchanged over the past forty years--a time when the black imprisonment rate more than quadrupled.
p. 309-For genuine reform to happen, it is not enough that those who live with crime and punishment demand it. Some of the demand must also come from those who both see crime and punishment at a distance and who decide, at long last, that they don't like what they see. That attentive and altruistic style of voting is not unknown, but it is not the historical norm either, certainly not in this context. Hope seems justified. Optimism, not so much.
p. 312-One reason black criminals from poor city neighborhoods have been treated with so much more severity than criminals from white immigrant communities in America's past is that the former are more easily categorized as The Other, as a people whose lives are separate from the lives of those who judge them. The ease of that response to urban crime means that re-creating the right kinds of democracy is no simple task. But simple or not, it remains the good and just thing to do. And it is the essential thing to do, if we are ever to break the cycle of mass violence and mass incarceration.
p. 7-If criminal justice is to grow more just, those who bear the costs of crime and punishment alike must exercise more power over those who enforce the law and dole out punishment.
p. 44-The descendants of black slaves constitute roughly 40 percent of the nation's inmates though a mere 13 percent of its general population.
p. 77-Mill [John Stuart Mill in his famous book On Liberty] argued that legal punishments should be triggered only when defendants injure others; a desire to police public morals is not a sufficient reason to incarcerate offenders.
p. 139-Large police forces are correlated with low crime rates today as well. Jurisdictions like New York that have seen the size of local police forces rise the most over the past two decades have also seen crime fall the farthest and prison populations rise the least. In less well-policed places, prison populations and violent crime either have risen more or fallen less.
p. 288-Putting more police officers on city streets belongs on a very short list of policy moves that should reduce both crime and the number of prisoners.
p. 294-The true surprise is that, judging by polling data, the level of black distrust of the police is essentially unchanged over the past forty years--a time when the black imprisonment rate more than quadrupled.
p. 309-For genuine reform to happen, it is not enough that those who live with crime and punishment demand it. Some of the demand must also come from those who both see crime and punishment at a distance and who decide, at long last, that they don't like what they see. That attentive and altruistic style of voting is not unknown, but it is not the historical norm either, certainly not in this context. Hope seems justified. Optimism, not so much.
p. 312-One reason black criminals from poor city neighborhoods have been treated with so much more severity than criminals from white immigrant communities in America's past is that the former are more easily categorized as The Other, as a people whose lives are separate from the lives of those who judge them. The ease of that response to urban crime means that re-creating the right kinds of democracy is no simple task. But simple or not, it remains the good and just thing to do. And it is the essential thing to do, if we are ever to break the cycle of mass violence and mass incarceration.
June 13, 2018
This was a very powerful book. I have learned so much while reading this book. I definitely enjoyed this book. It sucks that the author have died before the book reaches print. This book was definitely a mind changer, this book books gives you conclusions about the American Justice System. It's an excellent book, not only for those interested in the law. This book is a must read, the author argues, that it's a travesty that there's no criminal justice in our system as prosecutors arrange Plea bargains. By threatening people with large sentences if they do jury trials and don't accept the prosecutors Plea bargains.
September 1, 2024
William J. Stuntz’s "The Collapse of American Criminal Justice" provides a thorough and sobering analysis of the failures and inefficiencies within the American criminal justice system. His critique of how legal doctrines and public policies have contributed to mass incarceration is both insightful and necessary. In "A Balancing Act: An Integrated Approach to Justice," I also discuss the need for a more balanced and just legal system, one that prioritizes rehabilitation and fairness over punitive measures. Stuntz’s work provides valuable context for these discussions, making it a must-read for those interested in reform.
August 12, 2017
A superbly nuanced look at the evolution of the American justice system with a particular focus on how constitutional focus on procedure lead to many current negative aspects of the system. I'm legitimately sad that I don't get to hear the author's thoughts on judicial matters of the last decade (this was published after his death in 2011).
August 20, 2020
A lot of excellent history and some terrific insights into how our criminal justice system is broken. I don't agree with all of his suggestions to fix it (one of which is to fund more police) but some are obviously worthwhile.
September 18, 2025
Got logged out of this app but needed log back to remind my opps I still know how to read. Reviews incoming
This book has got to be the longest 300 page book in history but it’s really quite something
This book has got to be the longest 300 page book in history but it’s really quite something
dropped
September 25, 2023i give up i can't do this
November 27, 2016
Criminal law is one of the most heavily politicized areas of laws we have. It lies at the intersection of social policy (e.g., drug legalization), issues of human dignity (e.g., capital punishment), debates about the meaning of "law and order," all with racial overtones (e.g., mass incarceration). For that reason, it is difficult to write a book that manages to thread the needle of addressing the topic in a substantive and rich way without coming across as ideological. Stuntz does just this, however, and manages to challenge readers from almost any ideological vantage point.
One of his principal arguments is that American criminal justice has decidedly emphasized strong procedural protections over substantive protections. Indeed, the Warren court focused on protecting the procedural rights of defendants, which led to several major consequences: 1) criminal cases became focused on whether investigators had jumped through the proper procedural hoops in order to even go to trial, and 2) the strong procedural protections, coupled with a move to have harsher sentences, has led to more and more cases being pled out and not even going to trial, effectively abrogating the traditional criminal jury trial.
Additionally, American criminal justice has become more centralized and less locally flexible. Previously, convicting one of a crime always required a jury to find that the defendant acted with the necessary scienter or intent to commit a crime, but that requirement has been effectively written out of the law in many cases. For example, carrying a defined quantity of a controlled substance is defined as having the necessary "intent to distribute," so a prosecutor must merely demonstrate that the defendant had the requisite weight of the substance, not prove to a jury that the defendant had any sort of mental intentionality. Furthermore, by moving away from the common law definitions from crimes ranging from murder to rape, defendants have fewer opportunities to submit evidence of mitigating factors into the process. The consequence of this is that crimes are less about punishing culpability and more about punishing criminality.
The upshot of this system of crime and punishment is that we have a system that punishes a tremendous number of people—but the punished disproportionately affects certain socioeconomic and racial groups. The consequence of this has actually been to normalize criminal punishment, effectively neutering the deterrent effect of punishment and leaving neighborhoods and communities in social disarray.
Like most social commentators, Stuntz's strongest argument is in demonstrating the problem. Figuring out a plausible solution is much more difficult. For example, one solution he offers is to provide better (read: more) policing in crime-ridden areas. Of course, the last few years have demonstrated that the level of distrust of law enforcement among minority communities makes that solution a bit less plausible. However, some of his other solutions (e.g., injecting the principle of federalism back into the criminal justice system, overhauling the systems of prosecution and defense) are likely more viable—even if as a political matter it is hard to imagine such solutions being enacted into law.
Stuntz's book was published in 2011, one year after the much more popular The New Jim Crow: Mass Incarceration in the Age of Colorblindness was published by Michelle Alexander. However, The Collapse of American Criminal Justice is better in almost every respect. While Alexander attempts to flatten problems with criminal justice into a systematic racist effort, Stuntz acknowledges the racial undertones to American criminal justice while still allowing a nuanced understanding of American criminal justice. What Stuntz does is draw a narrative of the history of American criminal justice, which in turn lends itself to be both less ideological and more compelling than Alexander's work.
The descriptive quality of this book and its lack of any obvious ideological agenda means that it is a book that can challenge and inform both Senators Graham and Whitehouse, the majority and ranking members of the Senate Subcommittee on Crime and Terrorism. While Stuntz does offer some recommendations, the overall narrative arc of the book also allows creativity and debate among lawmakers about how to best proceed, and perhaps that is the book's greatest contribution. It is not a book that rests on its conclusions, but on its descriptive analysis. It is a formidable work—informative and provocative—that demands inclusion in any discussion of how to fix our criminal justice system.
One of his principal arguments is that American criminal justice has decidedly emphasized strong procedural protections over substantive protections. Indeed, the Warren court focused on protecting the procedural rights of defendants, which led to several major consequences: 1) criminal cases became focused on whether investigators had jumped through the proper procedural hoops in order to even go to trial, and 2) the strong procedural protections, coupled with a move to have harsher sentences, has led to more and more cases being pled out and not even going to trial, effectively abrogating the traditional criminal jury trial.
Additionally, American criminal justice has become more centralized and less locally flexible. Previously, convicting one of a crime always required a jury to find that the defendant acted with the necessary scienter or intent to commit a crime, but that requirement has been effectively written out of the law in many cases. For example, carrying a defined quantity of a controlled substance is defined as having the necessary "intent to distribute," so a prosecutor must merely demonstrate that the defendant had the requisite weight of the substance, not prove to a jury that the defendant had any sort of mental intentionality. Furthermore, by moving away from the common law definitions from crimes ranging from murder to rape, defendants have fewer opportunities to submit evidence of mitigating factors into the process. The consequence of this is that crimes are less about punishing culpability and more about punishing criminality.
The upshot of this system of crime and punishment is that we have a system that punishes a tremendous number of people—but the punished disproportionately affects certain socioeconomic and racial groups. The consequence of this has actually been to normalize criminal punishment, effectively neutering the deterrent effect of punishment and leaving neighborhoods and communities in social disarray.
Like most social commentators, Stuntz's strongest argument is in demonstrating the problem. Figuring out a plausible solution is much more difficult. For example, one solution he offers is to provide better (read: more) policing in crime-ridden areas. Of course, the last few years have demonstrated that the level of distrust of law enforcement among minority communities makes that solution a bit less plausible. However, some of his other solutions (e.g., injecting the principle of federalism back into the criminal justice system, overhauling the systems of prosecution and defense) are likely more viable—even if as a political matter it is hard to imagine such solutions being enacted into law.
Stuntz's book was published in 2011, one year after the much more popular The New Jim Crow: Mass Incarceration in the Age of Colorblindness was published by Michelle Alexander. However, The Collapse of American Criminal Justice is better in almost every respect. While Alexander attempts to flatten problems with criminal justice into a systematic racist effort, Stuntz acknowledges the racial undertones to American criminal justice while still allowing a nuanced understanding of American criminal justice. What Stuntz does is draw a narrative of the history of American criminal justice, which in turn lends itself to be both less ideological and more compelling than Alexander's work.
The descriptive quality of this book and its lack of any obvious ideological agenda means that it is a book that can challenge and inform both Senators Graham and Whitehouse, the majority and ranking members of the Senate Subcommittee on Crime and Terrorism. While Stuntz does offer some recommendations, the overall narrative arc of the book also allows creativity and debate among lawmakers about how to best proceed, and perhaps that is the book's greatest contribution. It is not a book that rests on its conclusions, but on its descriptive analysis. It is a formidable work—informative and provocative—that demands inclusion in any discussion of how to fix our criminal justice system.
June 20, 2013
Scholarly but accessible to a lay audience, this tremendously valuable history and critique of the American justice "system" traces the legal history, the political history and the demographics of a complex problem and proposes solutions. 312 pages of text that I read slowly and 100 pages of footnotes that I skipped through. Just for one example, we incarcerate 743 people per 100,000 in population. That's ten times more than Denmark, seven times more than we did in 1972, a third more than Russia or Rwanda. And our crime rate is falling. In the past we've had our lowest crime rates when we had more police and shorter sentences. This is a serious social problem that needs our attention. There are more young black men in prison than there are in college. Illegal drug use is spread equally across all racial groups but many times more Black people are in prison for it. Read this book!
July 24, 2013
This book is written for lawyers and politicians, but quite readable and informative in spite of its difficult style. Stuntz (deceased) discusses the evolution of modern criminal law, and the reasons for the present, over-crowded prison system.
I have often stated that we place too much emphasis on national political campaigns, and much too little on local elections. m This book acknowledges and speaks to the same problem with regard to the criminal justice system. We have relinquished the local control of criminal law and punishment, causing it to be more cruel and discriminatory than it need be.
One can only hope that more equity and fairness will one day be a part of this system. It is truly sad that the "land of the free," houses the largest prison population in the world.
I have often stated that we place too much emphasis on national political campaigns, and much too little on local elections. m This book acknowledges and speaks to the same problem with regard to the criminal justice system. We have relinquished the local control of criminal law and punishment, causing it to be more cruel and discriminatory than it need be.
One can only hope that more equity and fairness will one day be a part of this system. It is truly sad that the "land of the free," houses the largest prison population in the world.
April 27, 2012
I was excited to read this, but it ended up being a bit more academic than I was hoping. One of those situations where I would open it to read and fall asleep 3 pages later. Coming on the heels of a talk by Michelle Alexander, I also felt it skipped some of the background behind why our criminal justice system is so messed up - it focused a lot on the procedural rules that have been established by the Supreme Court, but not really the nefarious race-based motivations of the war on drugs that have also really led to skyrocketing incarceration. I don't think that's really what it was trying to do anyway though.
January 18, 2012
This was perhaps the best critique I have ever read of the criminal justice system. Bold, insightful, extremely thoughtful, and practical. It's a travesty that he's not around to continue to contribute his thoughts in the future. This is way better than the standard leftist critique that the system is racist and overly punitive. While Stuntz makes the same points, he explains why this happened and provides concrete feedback for real change. This was one amazing book!
February 13, 2012
The book is informative and accessible to the non-lawyer. It was fascinating to learn the history of the development of criminal law in the US and to get to know the ways in which the current criminal justice system is very short on justice. My biggest complaint is that the book is endlessly repetitive -- as if it were originally a set of stand-alone articles. I found that to really distract from the book's ability to hold my interest.
April 24, 2012
This book has plenty of interesting points to make. Unfortunately, like so many books of the genre, the author's head was clearly bursting with too many different things to say and the result is a very scattered work that tries to do too much instead of walking through a focused case from beginning to end.
August 3, 2012
This book is full of data! This is good and bad. I felt a little overwhelmed at times during this book. This feeling was not due to complexity of the material, but in the sheer volume of information to take in. It is a great book to point out the problems with the criminal justice system of America, but disappointed at the lack of proposed solutions.
September 28, 2012
Stuntz provides a pull-no-punches review of the American Criminal Justice system and where he thinks it went wrong. There is a great deal of historic context and development that sets the stage for is final analysis. This unapologetic look at a broken system is refreshing even while its candor is a bit challenging.
January 10, 2012
I would have liked a little less history and a little more of Stuntz's expert opinion and musings on American criminal justice, but his points are well-argued, cogent, and far too sensible to ever be enacted.
Read
January 2, 2012The first part was so droll, I had to put it down.
January 4, 2012
There are things in here that I might argue with, but really, this is worth reading.
January 23, 2012
A very informative and interesting take on the problems of the criminal justice system. Proposals focused on reducing the incarceration rate and the crime rate.
December 3, 2014
Good. Important. Needs dilution. About 200 pages could be shaved off making it easier to digest.
February 1, 2015
Riveting account of how a huge percentage of America's human potential is essentially flushed down the toilet and how the politics of the USA causes it and how it might be corrected.
Read
August 28, 2023Depressing and True. Read if you'd like to learn the history of our country's glaring racial disparity within the criminal justice realm.
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