governing the criminal justice system

William Stuntz’s new book, The Collapse of American Criminal Justice, compelling indicts the U.S. criminal justice system for failing to provide just and equal justice under law.  Stuntz declares:

The criminal justice system has run off the rails.  The system dispenses not justice according to law, but the “justice” of official discretion.  Discretionary justice too often amounts to discriminatory justice.  And no stable regulatory mechanism governs the frequency or harshness of criminal punishment, which has swung wildly from excessive lenity to even more excessive severity. [1]

Legislators get political credit for passing tough new criminal laws.  Not surprisingly, the number of criminal laws has exploded and the severity of punishment possible under law has increased greatly.  In the U.S., criminal justice now depends largely on prosecutors’ discretion in bringing charges and, to a lessor extent, on judges’ sentencing discretion in disposing of induced guilty pleas.  Current results of this system are 2.3 million persons in prison or jail, with men and African-Americans vastly disproportionately represented among those incarcerated.

Stuntz proposes two complementary directions for reform.  First, to strength equal protection under law, law in action must legally constrain formal criminal laws.  Irrespective of the filigrees of formal criminal laws, imposing dissimilar punishment on persons accused of factually and substantively similar actions should not be permissible under constitutional law of equal protection.  Second, to ensure that criminal punishment actually serves local community needs and values, local democratic control of the criminal justice system should be strengthened.  Increased funding for local policing would strengthen local democratic control.  So too would more jury trials and care to select juries from among the peer community of the accused.

John Paul Stevens, who served for nearly 35 years on the U.S. Supreme Court, praised Stuntz’s book in his recent review of it in The New York Review of Books.  The first sentence of Stevens’ review describes who Stuntz was:

William Stuntz was the popular and well-respected Henry J. Friendly Professor of Law at Harvard University. [2]

Stevens’ review concludes:

Professor Stuntz’s account of the “collapse” of an overgrown system of criminal law enforcement is well worth reading.  It is full of interesting historical discussion.  It accurately describes the magnitude of the twin injustices {excessive severity and disparate treatment of African-Americans} in the administration of our criminal law.  It should motivate voters and legislators to take action to minimize those injustices.

The last sentence of Stevens’ review presents the mass-media model of social change.  An eminent professor writes a book.  Prominent persons acclaim it in prominent publications.  The book becomes widely read.  Voters vote for political candidates who support the book’s proposals.  Legislators, perhaps with an eye to their standing in elite discourse, perceive additional motivation for acting.  Thus voters and legislators act to minimize the grotesque injustices in our criminal justice system.

Even with John Paul Stevens and William Stuntz, both great men, seeking to activate it, the mass-media model offers meager hope for transforming the criminal justice system to deliver sensible justice.  Within your abilities, resources, and constraints, look for additional ways to make the criminal justice system more just.

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Read more:


[1] Stuntz (2011) p. 5.

[2] Stevens (2011).


Stevens, John Paul. 2011.  Our ‘Broken System’ of Criminal Justice. The New York Review of Books. Nov. 10, 2011 issue.

Stuntz, William J. 2011. The collapse of American criminal justice. Cambridge, Mass: Belknap Press of Harvard University Press.

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