To respond to the legitimate grievances of populists, argues Stephen Harper, conservatives have to snap out of their free market dogmatism.
When surveying the critical response to the late William J. Stuntz’s final scholarly work, The Collapse of American Criminal Justice, one notices that two characterizations recur most frequently. The first relates to Stuntz’s transcendence of the traditional political divisions that so frequently dominate discussion of crime and criminal justice. The second is his great emphasis on restoring humanity to the system (a plea which one who has known Professor Stuntz as a person cannot, perhaps, help but take particularly seriously—I was fortunate enough to have been Stuntz’s student at Harvard Law School some years ago and the heart that he brought to his intellectual engagement with the criminal law has inspired several generations of students and colleagues). In his essay in this forum Jonathan Jacobs draws our attention to both of these qualities, and in particular to the complex interactions between historical, social, and legal forces which Stuntz’s integrative methodology allows him to identify as resulting in an overall failure of democracy in the criminal justice system.
In examining the core elements of Stuntz’s argument—the bureaucratization of the police force, the federalization, politicization, and hyper-specificity of criminal statutes, the preponderance of plea bargaining in resolving criminal trials and the resulting shift of moral decision-making out of the hands of juries, the Warren Court’s narrowing of constitutional criminal justice into a due-process focused jurisprudence of criminal procedure—Jacobs rightfully argues that these problems require “an explicit, publicly aired reconsideration of the powers and responsibilities of citizens.” Jacobs suggests that a pre-condition for solving the problems Stuntz identifies is an overall reshaping of how individuals conceive of themselves as participants in a liberal legal order. Because criminal law has been “professionalized, bureaucratized, and politicized in ways that render it alien to any widely shared sense of how ordinary people can and should participate in criminal justice,” citizens need to be galvanized by some coherent understanding of themselves as constituents of a civil society, to think of themselves, as Jacobs puts it, “as agents rather than clients of politicians.”
Stuntz’s work likewise provides us, however, with a complementary flip side to this analysis. In summing up his argument in favor of humanization he 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 is important, therefore, while we talk about the professionalization and bureaucratization of criminal justice and the alienation of the individual citizen that may flow from it, not to create rigid distinctions between the citizen and the police. While the increasing complexity of civil society may make some degree of professionalization necessary to policing, the conception of the police officer as in some way fundamentally “other” from the private citizen, as opposed to the intended steward of that citizen’s safety is destructive. As Stuntz’s observation suggests, in regarding the police as automatically antagonistic to the interests of the citizen we run the risk of entrenching a polarization dangerous not only to our self-conceptions as participating citizens, but to our safety.
One of the more surprising points in The Collapse of American Criminal Justice arises from Stuntz’s summary of the state of law enforcement across the nation during the Gilded Age. In the South, where blacks and poor whites were largely disenfranchised, a narrow electorate supplemented by mob rule controlled criminal justice. In the West, similarly, “courts, police forces, and the other institutions that mark stable governments were only sporadically effective.” In these regions both crime rates and rates of imprisonment were extremely high. By contrast, in the cities of the North, despite the fact that imprisonment was falling or remaining stable at rates dramatically lower than today’s, crime rates were dramatically lower. (Stuntz provides the example that in the late 1800s one rural Kentucky town had a murder rate of approximately 200 per 100,000 in contrast to New York City, which had less than 5 murders per 100,000). A powerful explanation for this discrepancy lies in the fact that northern cities were well policed (with two or three times as many officers per unit of population as southern cities). Stuntz further notes that these trends remain in effect today: cities with the largest police forces have both lower rates of violent crime and imprisonment.
It therefore becomes extremely important to refrain from thinking of “the criminal justice system” as a monolithic tool of oppression. As Stephen Smith notes in his review of Collapse, the threat to liberty posed by our criminal justice institutions becomes evident in the national rate of imprisonment which “today far outstrips the rate at which Americans were imprisoned at prior points in history, and the imprisonment of all European nations including Russia and the former Soviet republics.” Yet Stuntz’s work demonstrates why it would be a mistake to confuse excessive rates of punishment with an excessive role for police officers in our communities. Indeed the governmental threat to liberty posed by widespread imprisonment and the threat to personal liberty posed by crime itself both appear correlated with decreased policing.
Interestingly, if Stuntz is correct to identify the Supreme Court’s well-intentioned criminal procedure jurisprudence as a cause of the pervasive inequalities in the administration of criminal justice, this phenomenon can be partially explained as an overly simplistic aversion to the person of the investigating police officer in the context of a criminal fact pattern. Stuntz describes how the Fourteenth Amendment—which was drafted to ensure the “equal protection of the laws” to all citizens as part of the project of Reconstruction—has been rejected as a means of challenging substantive inequalities in criminal punishment (for example, the disproportionate prosecution of blacks for the same crimes for which whites are less likely to face punishment, or for which their sentences are statistically much lighter). He explains how the Warren Court took a wrong turn and attempted, instead, to improve criminal justice through the Fourth, Fifth, and Sixth Amendment protections against police misconduct in evidence-gathering. Apart from being ill-suited to the task of targeting unequal outcomes in similar cases, Stuntz argues, the exclusion of incriminating evidence serves to exonerate the very defendants most likely to be guilty—those against which such evidence exists. At a systemic level, Stuntz points out, this drains already limited resources away from investigatory efforts more likely to separate innocent defendants from guilty. Furthermore, the apparent injustice of letting the guilty walk free has proved likewise to contribute to the highly politicized cultural backlash driving today’s levels of incarceration.
As an example of how the Warren Court utilized the individual police officer as a stand-in for all systemic injustice, consider the case of Mapp v. Ohio, which incorporated the Fourth Amendment exclusionary rule of evidence against the states. In an opinion notable for its elision of details bearing on probable cause in favor of a highly gendered and vaguely sexualized portrayal of the police officers’ interactions with the female defendant, the Court describes the exclusionary remedy as a denial of an individual police officer’s desires, as opposed to a limitation on the collective societal need for evidence: “Our decision…gives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administration of justice.” This concept of “giving” evidence to a particular officer is a leap from earlier Fourth Amendment opinions which, building upon an eighteenth-century tradition of civic republicanism, described the citizen’s protections from invasion by the state generally as an outgrowth of the fact that he is a constituent of the state itself. Rather, the language in Mapp, which has been absorbed for the past half century by state courts applying the doctrine, seems to envision the police officer, rather than the criminal, as the antagonist to the ideal citizen and the primary beneficiary of the injustices of the system.
One of the most important challenges posed by Stuntz’s work is that we must reshape the relationships between law enforcement and communities, both through an increase in local resources devoted to policing and, perhaps even more importantly, through a dismantling of the current conceptual divide that pits the citizen against the police officer and further entrenches distrust and disillusionment on both sides. No criminal justice system can succeed at preventing crime when it lacks legitimacy in the eyes of the population it purports to protect. As we consider how to restore this legitimacy, so sadly lacking in many of today’s neighborhoods, we must recognize two interrelated components that need not be mutually exclusive: the end to over-incarceration and the prevention of crime, particularly in our most vulnerable communities.