The Collapse of American Criminal Justice

William J. Stuntz

• Publisher: Belknap Press
• Year: 2013
• ISBN:
  9780674256934
• Topic: Storia
• Subtopic: Storia nordamericana

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.

PART 2

The Past

THE FIRST CENTURY after American independence saw the emergence of two sets of legal ideals that might govern the nation’s criminal justice system: James Madison’s Bill of Rights, and the legal guarantees of John Bingham’s Fourteenth Amendment—especially the promise of the “equal protection of the laws.” That same century also saw the establishment of two different sets of institutional practices to govern the justice system’s day-to-day operation. In the North, local democracy did most of the governing. In the South, democracy meant either the rule of rich whites or the rule of white mobs.

Over the last two-thirds of the twentieth century, the justice system embraced the wrong ideals and the wrong institutional arrangements. Earl Warren and his colleagues imposed Madison’s Constitution, not Bingham’s, on local police and prosecutors. And the neighborhood-level democracy that had governed criminal law enforcement in the industrialized North faded, to be replaced by a more southern-style democracy in which residents of low-crime neighborhoods establish the rules for more crime-ridden city streets. Today, black crime is mostly governed by white judges and white politicians, and by the white voters who elected them.

Less local democracy meant more instability. Criminal punishment rose sharply in the twentieth century’s second quarter, then fell sharply in its third quarter—while crime skyrocketed. In the century’s fourth quarter, the justice system turned more punitive, and prison populations exploded. But urban crime remained stubbornly high, even after the 1990s crime drop. The end result, in North and South alike, was a record-shattering, disproportionately black inmate population, and rates of urban violence similar to those that southern cities—but not northern ones—had known in generations past.

CHAPTER 3

Ideals and Institutions

After our Constitution got fairly into working order it really seemed as if we had invented a machine that would go of itself, and this begot a faith in our luck which even the Civil War itself but momentarily disturbed.

—James Russell Lowell, Speech to the Reform Club of New York (1888)

Our Founding Fathers, faced with perils we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man . . . Those ideals still light the world, and we will not give them up for expedience’s sake.

—Barack Obama, Inaugural Address (2009)

ENFORCING CRIMINAL LAW is one of government’s most important tasks, yet also among the most dangerous. If crimes are punished too rarely, if violent streets are not well policed or if witnesses cannot be protected, violence and disorder can reach Hobbesian proportions. On the other hand, if crime is punished too severely—if the police behave brutally or if outsiders decree that a large fraction of the young men in some communities must live behind bars—the justice system may come to represent an engine of alien oppression in the eyes of those whose obedience it seeks to compel. Omelettes are made by breaking eggs, or so the familiar saying goes. In this sphere of governance, the omelettes must be made: no government can long survive without a working system of criminal law enforcement, and such systems are inevitably uncomfortable to those who are the targets of police officers’ and prosecutors’ attention. Yet to anyone who values freedom as well as safety, it will seem crucial to monitor the egg-breaking carefully, and to keep it to a minimum.

So constitutional democracies face two opposite risks: chaos or oppression, too little law enforcement or too much—and the wrong kind. Such states tend to address these twin risks in similar fashion. They create police forces and prosecutors’ offices with sufficient power and personnel to keep streets safe, and craft legal rules that limit law enforcers’ power by protecting individual rights of fair treatment. Put more simply, the character of criminal justice in democratic states usually depends on a set of government institutions checked by a set of legal ideals. Those legal ideals, in turn, are of a different type than the ordinary legal doctrines that govern contracts and house closings, divorces, and stock purchases. The ideals that rein in oppressive criminal law enforcement usually come from constitutional law: meaning, mere politicians cannot change or ignore them.

In twenty-first-century America, the combination of those ideals and institutions doesn’t work as it should. If our criminal justice system is “a machine that would go of itself,” the machinery is broken. Repairing the breakage requires discovering its source, which in turn requires understanding the justice system’s institutional design, the legal ideals that allegedly protect those whom the system targets, and the historical origins of institutions and ideals alike.

Design

For most of the nation’s history, the design of American criminal justice had two key features. First, as between the center and the periphery, power flowed toward the periphery: local officials, not state and national ones, managed the police forces that make most arrests and the prosecutors’ offices that prosecute most cases. Second, as between civil servants and politicians, power was mostly held by the politicians: elected officials defined criminal prohibitions, prosecuted violators, and heard appeals; other elected officials supervised the local police officers who arrest most offenders. Both design features remain, but each has grown less marked with time. State and federal officials exercise more power over crime and punishment than in the past, as do the appointed, life-tenured Supreme Court Justices who sit atop the federal judiciary. In the past, local politics and local politicians reigned supreme. Today, they share power with state and national politicians, and with allegedly apolitical federal judges.

The details are easily described. Local police forces and sheriffs’ offices—either headed by elected officials or directly responsible to them¹—investigate crimes and arrest criminals. District attorneys elected at the county level prosecute criminal defendants; public defenders represent defendants too poor to hire their own lawyers. Locally elected trial judges accept guilty pleas, try criminal cases, and impose sentences on those who are convicted. State appellate judges—in most states they too are elected, either by judicial district or statewide²—hear and decide appeals from those convictions and sentences. State legislators define the criminal prohibitions and sentencing rules that local police officers and prosecutors enforce. That state-and-local justice system makes some 14 million arrests and prosecutes more than 1 million felony cases per year.³

The federal government has its own criminal justice system, less politically accountable than the state and local system but also less important, because federal officials handle few criminal cases: 7 percent of felony prosecutions, a small fraction of 1 percent of misdemeanors.⁴ With roughly 12,000 agents, the FBI is the most important of the dozen or so federal police agencies that employ roughly 100,000 federal officers.⁵ (By comparison, there are 620,000 full-time local police officers in the United States, and roughly one-tenth that many state troopers.)⁶ Those federal agents investigate federal crimes and arrest the offenders, just as their local counterparts do. United States Attorneys and their assistants—they number 5,800, compared to roughly 27,000 local prosecutors⁷—prosecute federal cases in federal court. United States District Judges preside over those criminal cases. United States Court of Appeals judges from twelve circuits hear and decide appeals. The Supreme Court of the United States occasionally reviews those Court of Appeals decisions; the Court also defines the constitutional rules that constrain local police officers and local prosecutors. All these officials are appointed, not elected: federal judges and justices serve for life; federal agents and prosecutors serve at the pleasure of their superiors. Naturally, life-tenured federal judges have a high degree of political independence. But they are not alone: so does the FBI, and so do U.S. Attorneys, as George W. Bush’s Justice Department discovered to its dismay.⁸

Two other features of these parallel justice systems bear comment. First is their funding. As the figures in the preceding paragraph show, local police and local prosecutors handle fourteen times as many felony cases as does the federal government, and several hundred times the number of misdemeanors. Yet the ratio of local cops to federal officers is only 6 to 1, and the ratio of local prosecutors to their federal counterparts is less than 5 to 1. Local law enforcement agencies tend to work at capacity. Thanks to more generous per-case funding than local governments can afford, the key actors in the federal justice system enjoy a measure of slack. For most of American history, that difference in funding had little impact on the character and quality of criminal law enforcement: policing and prosecution were cheap enough that, outside the chronically poor South, governments used as much of them as they wished. Today, its effects are huge.

The second feature concerns federal law’s importance, or the lack thereof. In most areas where federal law operates, the federal government dominates the regulatory landscape; state and local governments are secondary actors. Criminal justice works differently. Murders, rapes, robberies, and burglaries—the crimes that do the most harm, and the ones that local populations care most about—are nearly always the responsibility of local police, local prosecutors, locally elected judges, and state law. The men and women who enforce federal criminal law handle more exotic but less consequential fare: high-end white-collar crime, immigration violations, crimes on federal property, plus a scattering of drug crimes and violent crimes that the state-and-local justice system usually handles. The most important effects of federal law are felt not in federal cases, but in cases prosecuted by local district attorneys under state law; the threat of harsh federal sentences can be used to extract guilty pleas in such cases. And federal law sometimes serves as a model for state law—states follow doctrinal patterns that federal courts first established. In short, federal criminal law has significant indirect effects. Its direct effects are modest.

So much for the institutions. The criminal justice system’s key legal ideals come from scattered provisions of the Bill of Rights—the first ten amendments to the federal Constitution, four of which concern crime and punishment. They too are easily described. The Fourth Amendment bars “unreasonable searches and seizures” and requires that search warrants be supported by probable cause and specify the items to be seized.⁹ The Fifth Amendment forbids double jeopardy: being tried twice “for the same offence”; the same prohibition renders acquittals final and unappealable.¹⁰ The Fifth Amendment also bans compelled self-incrimination and requires the use of grand juries to indict those charged with felonies; finally, that amendment contains a catch-all provision barring the imposition of criminal punishment without “due process of law.”¹¹ The Sixth Amendment grants defendants the rights to be informed of the charges against them, to a speedy and public jury trial on those charges at which the government’s witnesses may be cross-examined and defense witnesses may be called, and at which defendants are to “have the assistance of counsel for [their] defense.”¹² The Eighth Amendment bars both “excessive fines” and “cruel and unusual punishments.”¹³ Save for the Fifth Amendment’s grand jury requirement, which applies only to federal cases, all the provisions just described apply to all levels of government: federal, state, and local.

That was not always so. The First Amendment begins with the words “Congress shall make no law”—strong evidence that the Bill of Rights was originally intended to apply to the federal government only, as it did until well into the twentieth century.¹⁴ Yet that historical proposition is less important than it seems. The Bill’s criminal justice provisions are revised versions of provisions that already appeared in many state constitutions by 1791, the year the Bill was ratified. Nearly all of the many states that joined the expanding Union after that date copied the Fourth, Fifth, Sixth, and Eighth Amendments in their own constitutions, often word for word. Long before the Supreme Court applied those amendments to state as well as federal cases (again, save for the Fifth Amendment’s right to indictment by grand jury), the principles of the Bill of Rights were governing law throughout the United States.

Curiously, those legal principles made little difference before the 1960s. State constitutions included their own versions of the Bill of Rights—but for the most part, state courts interpreted that constitutional language narrowly. Whatever searches and seizures local police officers conducted were usually deemed reasonable (or, if not, remedies for illegal searches and seizures proved hard to come by).¹⁵ Practices that led defendants to confess their crimes were almost always found to be consistent with due process and with the privilege against self-incrimination. Again for the most part, state-law versions of the Bill of Rights had little bite. That changed when Earl Warren’s Supreme Court both imposed the federal Bill of Rights on the states, and reinterpreted several of the Bill’s provisions to require more than state and local officials already did—a story for a later chapter.¹⁶

The Bill’s criminal procedure provisions are iconic; they flowed from the pen of the great James Madison, history’s leading constitutional author. The government institutions previously described seem a good deal less exalted. The justice system’s institutional arrangements appear to be a bit slapdash, as though the relevant offices and institutions were thrown together by second-rate politicians who gave little thought to the system they were establishing—which is roughly what happened. Plus, the institutions appear to suffer from an excessive respect for the shifting winds of local politics: which, in the United States, means the low politics of urban machines. Perhaps electing county sheriffs has something to recommend it, but the notion of electing both the district attorneys who prosecute criminal cases and the judges who try those cases seems uncomfortably close ...