Josiah Davis

William J. Stuntz on American Criminal Justice


Written by one of the most influential scholars of the last three decades years, The Collapse of American Criminal Justice aims at nothing less than a comprehensive description of today’s criminal justice system, how it came to be what it is today, and what can be done to fix it. A self-proclaimed conservative, and openly evangelical Christian, William J. Stuntz describes the current Criminal Justice System as an “arbitrary, discriminatory, and punitive beast” that has lost its way through politicizing criminal punishment, emphasizing procedural rather than substantive law, and losing a sense of local democracy. Stuntz completed the manuscript for this book on his deathbed and it was published after his death in 2011.

Among the great untold stories of our time is this one: the last half of the twentieth century saw America’s criminal justice system unravel. There are three keys to the system’s dysfunction, each of which has deep historical roots but all of which took hold in the last sixty years.

First, the rule of law collapsed. To a degree that had not been true in America’s past, official discretion rather than legal doctrine or juries’ judgments came to define criminal justice outcomes.

Second, discrimination against both black suspects and black crime victims grew steadily worse, oddly, in an age of rising legal protection for civil rights. Today, black drug offenders are punished in great numbers, even as white drug offenders are usually ignored. (As is usually the case with respect to American crime statistics, Latinos fall in between, but generally closer to the white population than to the black one.)’ At the same time, blacks victimized by violent felonies regularly see violence go unpunished; the story is different in most white neighborhoods.

The third trend is the least familiar: a kind of pendulum justice took hold in the twentieth century’s second half, as America’s justice system first saw a sharp decline in the prison population-in the midst of a record-setting crime wave-then saw that population rise steeply. In the late 1960s and early 1970s, the United States had one of the most lenient justice systems in the world. By century’s end, that justice system was the harshest in the history of democratic government.


Part 1: Big Picture, Where we are today

Chapter 1 contrasts the crime and punishment consequences of two great migrations: the waves of European pean immigrants who came to America’s shores between the 1840s and World War I, and the black migration from the rural South to northern cities that extended over the first two-thirds of the twentieth century.

Chapter 2 examines the central criminal justice problem of our time-America’s America’s enormous, disproportionately black prison population.

Part 2: How the Criminal Justice System Came to be the “arbitrary, discriminatory, and punitive beast that it is”.

Chapter 3 covers two topics: the establishment of the constitutional rights that help to define American criminal justice, and the rise of the institutions and practices that distinguished criminal justice in the pre-Civil Civil War North from the more privatized style of “justice” in the slave South.

Chapter 4 catalogs the brief rise and swift fall of the ideal of equal protection of the laws. For a time following the Civil War, that ideal looked likely to play a large role in shaping the nation’s criminal justice system, but did not do so. It still doesn’t.

The subject of Chapter 5 is criminal justice in the Gilded Age: roughly, the half-century between Reconstruction’s end and the Great Depression’s beginning. During those years, northern cities established a style of criminal justice that was more lenient, more egalitarian, and more effective than today’s version. sion. In the South, criminal justice was more punitive, more discriminatory, tory, less stable, and less successful at controlling criminal violence. The West first resembled the South, then gradually came to adopt the North’s practices.

Chapter 6 examines a particular aspect of Gilded Age criminal justice: the culture war that began with the fight against polygamy in the 188os and ended with Prohibition’s repeal in the early 1930s. In between, the justice system battled state lotteries, interstate prostitution rings, and narcotics. These battles redefined federal criminal law, and the redefinition gradually extended to the states as well. Criminal law became less a means of defining the conduct that would lead to prison or jail time, and more a means of facilitating easy convictions-and a source of ever-growing prosecutorial power.

Chapter 7 discusses the pre-1960 rise of constitutional regulation of criminal justice, along with three more productive paths that regulation might have followed but didn’t.

Chapter 8 turns to the work of Earl Warren’s Supreme Court, and the ways the Court exacerbated the inequality and instability that plagued late twentieth-century criminal justice.

Chapter 9 explores four trends that have shaped the justice system in our own time: the forty-year crime wave that began in northern cities in the early 1950s and the decade-long crime drop that followed it, the sharp drop in criminal punishment that likewise began in the Northeast in the 1950s and spread to the rest of the nation in the 1960s and early 1970s, and the thirty-year explosion in the nation’s inmate population that began in the mid-1970s. Crime rose and then fell, though the rise was bigger than the fall. Criminal punishment fell and then rose-and and again, the rise was bigger than the fall. These trends were both symptoms toms and causes of the dysfunctional justice system we have today.

Part 3: Moving forward

Part Three consists of a single chapter that turns to the future, and briefly surveys some means by which the broken machinery of American criminal justice might be repaired.