The Collapse of American Criminal Justice

Here’s a post about The Collapse of American Criminal Justice (TCOACJ) by then-Harvard Law Professor Bill Stuntz.

Stuntz does a really great job of looking at the history and economics and politics of criminal justice, and really gets at a big piece of why the system can be so depressing. The central theme of TCOACJ is about the unexpected consequences of modern procedural protections (such as the well-known requirement that police read arrestees their rights) in the American criminal justice system. The main source of these new protections is judicial; these procedural protections are the result of the federal judiciary applying the Bill of Rights to state governments via the Fourteenth Amendment (passed in 1868), which crucially includes state police and local prosecutors. These new protections make it much more expensive to bring a prosecution against a defendant, especially a rich defendant. As a result, state legislatures have created other, more cheaply enforced categories of crimes, such as the modern drug laws where possession implies intent, and where sentencing is strict–and even nakedly disproportionate–and mandatory. The result is a system where most power resides not with judges and juries, but with police and prosecutors whose principal levers for enforcing crime are to use minor offenses as predicates for searches and seizures, and to use the threat of disproportionate sentencing to extract confessions and “flip” petty criminals into testifying against each other. And that, in turn, is why the system produces more than 90% of its jail sentences by plea deal, not trial and conviction, and helps explain why the system has been described as “The New Jim Crow” because it offers such widely disparate outcomes for poor or minority arrestees as compared to rich, white, or well-connected arrestees.

(As an aside, the application of the Bill of Rights to the states is a judicial doctrine known as “Incorporation.” Originally the Bill of Rights applied only to the federal government, but beginning with Chicago, Burlington and Quincy Railroad v. City of Chicago (1897), the Supreme Court started recognizing a doctrine that many aspects of the Bill of Rights would apply to the states because the 14th Amendment applies to the states, and because the 14th’s Due Process Clause means that anything in the original Bill of Rights which is entailed in “Due Process” will apply to the states. The incorporation of the Bill of Rights proceeded incrementally over many decades, principally in two large spurts, the first starting with Gitlow v. New York (1925), and the second including Malloy v. Hogan (1964) and Miranda v. Arizona (1966). You can read a lot more about the judicial doctrine of incorporation on Wikipedia, or make a career out of it by becoming a criminal law attorney.)

So what’s an example of a “modern procedural protection”? The simplest example of a modern procedural protection is barring use at trial of evidence extracted from a criminal defendant by force by officers of a state government. It used to be that, if state police officers beat a confession out of you, while they might be guilty of a crime, and while you might be able to bring a tort case against them, the confession you signed to get them to stop hitting you could still be used against you in a criminal trial. You can see how, in the Jim Crow south, that was a serious problem! White police officers could, and fairly commonly did, use coerced confessions from black defendants as a routine part of “investigating” crimes. A bar on compelling confessions with force is one of the most uncontroversial applications of the bill of rights to protect criminal defendants; other modern procedural protections are more controversial.

For an example of a more controversial procedural protection, consider the rule that excludes from trial physical evidence obtained by a police officer who conducts an illegal search or seizure. (Say a police officer breaks into the garage of a man the police officer unreasonably and without basis suspects of growing pot, and the officer finds a headless body and the man’s hand-written journal of the killing… how do you feel about letting that man go free?) In some cases, this rule results in manifestly guilty–and dangerous!–criminals going free. Or the rule that every person in police custody must receive a Miranda warning, informing them that they have a right to remain silent, and to speak with their attorney, and so on… would it really be so awful if police could just go right to asking questions, without first telling people under arrest that they are free to ignore the officer and not answer anything? Arguments like this are a big part of why the law around the procedural protections for criminal defendants are a controversial, and changing, area of law.

One consequence of an elaborate, controversial, and changing set of procedural protections for criminal defendants is that successfully prosecuting a case, including litigating the evidentiary motions and post-conviction motions, has become much more expensive for prosecutors. Criminal defendants with money can pay attorneys to lob dozens of different arguments in their defense, in hopes that something sticks. (A process abetted by criminal defense attorneys who charge by the hour, and who are ethically bound to zealously defend their clients.)

However, the new expense of successful prosecution–while it is a boon for rich defendants–is generally very bad news for the criminal justice system and especially for poor, minority defendants. The reason is, as some crimes have become extremely expensive to prosecute (especially against rich defendants), legislatures and prosecutors have compensated by creating and prosecuting offenses that are cheaper to prosecute, and much more likely to produce quick plea deals. And what’s the simplest way to make sure plea deals are likely? Make the sentence disproportionate, and tie the jury’s hands by removing any “criminal intent” component.

(In case there are readers who aren’t familiar with the term, here’s how a plea bargain works: A prosecutor’s office gets word from the police department that someone was arrested in connection with a crime or suspected crime. The prosecutor faces a choice of what charges to bring, and whether to offer the defendant the ability to accept a reduced sentence in exchange for pleading guilty (and thereby sparing the prosecutor’s office the expense of a trial.))

TCOACJ is great for its level of historical engagement. E.g. I had no idea criminal prosecutors were usually private hires until long after the Constitution was written. Stuntz also considers how things could have (and in other countries, actually have) gone differently, e.g. most constitutions written after ours have substantive protections written into their equivalent of the bill of rights, while ours does not. (Except for the proscription of “cruel and unusual” punishment, which our courts have interpreted into almost no proscription at all.) He also looks at the racial elements in another “tough on crime” moment in American history: the Irish immigrant experience in the decades where the potato famine caused a huge influx of Irish immigrants to the U.S. in the late 1800s.

More than 90% of sentences are plea bargains, not tried to a jury at all.

Overall, the result seems to be that the very people the modern procedural protections were intended to protect (minority defendants and poor people) are the clear losers in the new system. Sure, plea deals save money on prosecutions, but the upshot is a criminal justice “system” of police officers’ and prosecutors’ discretion, rather than a system of judges’ and juries’ discretion. Just like draft boards’ discretion tended to mean that well-off folks got out of going to ‘Nam, discretion in the U.S. is a big part of how we put 1/3 of black men between 20 and 30 in jail without the rest of us thinking there was a war going on.

But the central theme is about how legislatures have adjusted to the insane expense of excess procedural protections by creating new kinds of violations and tougher sentences for existing ones, and by disempowering judges and juries with mandatory sentencing and crimes that don’t have a “criminal intent” component, but rather merely an “intent” or even merely a “possession implies intent” component, which empowers prosecutors to bully plea bargains from defendants. The upshot is a criminal justice “system” of legislative, police, and prosecutorial discretion for newly created categories of crime, rather than a system powered by aggressive prosecution and traditional sentences for the “big five” (murder, battery, rape, arson, fraud/perjury) and judges and juries.

Stuntz also looks at electoral checks on police and prosecutors. TCOACJ looks at the parallel between the post-Potato-famine Irish communities that built electoral machines and took over city electoral politics in response to excess incarceration of Irish young men, and a similar (but less successful) effort by African American communities in response to a wave of incarceration of African American men. In both cases, the wave of incarceration was itself tightly connected to a large group of newly arrived young men without opportunity–whether young Irishmen escaping the famine, or young black Americans fleeing Jim Crow.

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