The Collapse of American Criminal Justice System

Summary:   Occasionally a book so well describes important trends for our nation that becomes a must-read for all Americans.   Such as The Collapse of American Criminal Justice by William J. Stuntz (Harvard University Press, 2011).  This post gives a brief excerpt to show its importance.  Please buy or borrow a copy.  This is part one in a series; also see tomorrow’s part two!


  1. The publisher’s description
  2. Introduction:  the rule of too much law
  3. Excerpt from section I: Crime and Punishment
  4. For more information about our criminal justice system

 (1)  The publisher’s description

The Collapse of American Criminal Justice by William J. Stuntz (Harvard University Press, 2011)

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.

(2)  Introduction:  the rule of too much law

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.  this book seeks to address two questions.  First, how did the unraveling happen?  And second, how might out dysfunctional justice system be repaired?  Answering the first question goes some distance toward answering the second.

Signs of the unraveling are everywhere.  The nation’s record-shattering prison population has grown out of control.  Still more so the African American portion of that prison population:  for black males, a term in the nearest penitentiary has become an ordinary life experience, a horrifying truth that wasn’t true a mere generation ago.  Ordinary life experiences are poor deterrents, one reasons why massive levels of criminal punishment coexist with historically high levels of urban violence.

Outside the South, most cities’ murder rates are a multiple of the rates in those same cities sixty years ago — notwithstanding a large drop in violent crime in the 1990s.  Within cities, crime is low in safe neighborhoods but remains a huge problem in dangerous ones, and those dangerous neighborhoods are disproportionately poor and black.  Last but not least, we have built a justice system that strikes many of its targets as widely unjust.  The feeling has some evidentiary support  criminal litigation regularly makes awful mistakes, as the frequent DNA-based exonerations of convicted defendants illustrate.  Evidently, the criminal justice system is doing none of its jobs well:  producing justice, avoiding discrimination, protecting those who most need the law’s protection, keeping crime in check while maintaining reasonable limits on criminal punishment.

It was not always so.  For much of American history — again, outside the South — criminal justice institutions punished sparingly, mostly avoided the worst forms of discrimination, controlled crime effectively, and, for the most part, treated those whom the system targets fairly.  the justice system was always flawed, and injustices always happened.  Nevertheless, one might fairly say that criminal justice worked.  it doesn’t anymore.

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’ judgements came to define criminal justice outcomes.

Second, discrimination against both black suspects and black crime victims grew steadily worse — oddly, in any 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 tot he 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 the end ist he least familiar:  a kind of pendulum justice took hold in the 20th 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 US 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.

Take these three trends in turn.  As drivers on our highways know well, American law often means something other than what it says.  Roadside signs define the speed limit, or appear to do so:  65 or 70 miles per hour on well-built highways, 25 or 30 on local roads in residential areas, something in between for local highways and main roads in business districts.  … In the US posted limits don’t define the maximum speed of traffic; they define the minimum speed.  So who or what determines the real speed limits, the velocity above which drivers risk traffic tickets or worse?  The answer is whatever police force patrols the relevant road.  Law enforcers — state troopers and local cops — define the laws they enforce.

The power to define the law on the street allows the police to do two things they otherwise couldn’t.  First, state troopers can be selectively severe, handing out fines for driving at speeds no higher than most cars on the road.  Second, those same state troopers can use traffic stops to investigate other crimes, stopping cars in other to ask permission to search for illegal drugs.

… Because nearly all drivers violate traffic laws, those laws have ceased to function on the nation’s highways and local roads.  Too much law amounts to no law at all:  when laws make everyone an offender, the relevant offenses have no meaning independent of law enforcers’ will.  The formal rule of law yields the functional rule of official discretion.

… why worry about such small problems?  Because the character of traffic enforcement is not so different from the ways in which police officers and prosecutors battle more serious crimes.  The consequence is a disorderly legal order, and a discriminatory one.

(3)  Excerpt from section I:  Crime and Punishment

In 2008, the imprisonment rate was more than three-and-a-half times that older historical record.

… The wave of incarceration that produced those numbers extended nationwide: in every region, imprisonment at least tripled in the twentieth century’s second half. In some jurisdictions, the increase was much larger. In 1950, 77 of every 100,000 Texans were housed in stat penitentiaries; by 2000, the figure was 730. Massachusetts’ imprisonment rate rose from a mere 32 in 1972 to 278 in 1997. Between 1973 and 2003, Mississippi’s imprisonment rate rose from 76 to 763.

… If the general imprisonment rat is high, the rate of black incarceration can fairly be called astronomical. The black imprisonment rate for 2000 [1,830 per 100,000] exceeds by one-fourth the imprisonment rate in the Soviet Union in 1950 — near the end of Stalin’s reign, the time when the population of Soviet prison camps peaked. If jail inmates are included, per capital black incarceration is 80 percent higher than the rate at which Stalin’s regime banished its subjects to the Gulag’s many camps.

(4)  Other posts about our criminal justice system

  1. An opportunity to look in the mirror, to more clearly see America, 10 November 2009 — About our prisons
  2. Nixon declared war on drugs, a major investment of America in itself – but one that’s gone bad, 21 May 2010
  3. The Feds decide who to lock up for life (not just at Guantanamo), another nail in the Constitution’s coffin, 2 June 2010
  4. Being a third world nation is a state of mind, as we will learn (about prison rape), 19 March 2011
  5. Our prisons are a mirror showing the soul of America.  It’s not a pretty picture., 28 March 2011
  6. The Collapse of American Criminal Justice System — Excerpts from The Collapse of American Criminal Justice by William J. Stuntz
  7. More about the collapse of the American Criminal Justice System – Studies and reports about our shameful system.
  8. Final thoughts about the American Criminal Justice System, 21 September 2011

5 thoughts on “The Collapse of American Criminal Justice System”

  1. Failures all around, as seen on TV.

    I suspect half of those in prison don’t know how to read. Even if ‘outside’ the individuals lack the tools to cope, much less succeed.

    All work together to sell more fear, ignorance, poverty, crime and incarceration. These are products of the establishment, who — of course — won’t be held accountable. After all, it’s business, not personal.

  2. Selective enforcement, discrimination, happens in the jails too. “DANGEROUS JAILS: Part 1“, Matthew Fleischer, Witness LA, 16 September 2011. Both don’t bode well for our society, let alone for our justice system.
    FM reply: Tune in for tommorw’s post, a section of which discusses our shameful prison system.

  3. Grisham vividly describes police corruption and prosecutorial incompetence in a rural, small town area of Oklahoma (the local police culture was established at the end of the “wild west” era!) Class oppression is similar to that faced by poor urban minorities, as are the failures of the mental health “treatment” system.
    FM additional note:

    The Innocent Man – Murder and Injustice in a Small Town

    John Grisham’s first work of nonfiction, an exploration of small town justice gone terribly awry, is his most extraordinary legal thriller yet.

    In the major league draft of 1971, the first player chosen from the State of Oklahoma was Ron Williamson. When he signed with the Oakland A’s, he said goodbye to his hometown of Ada and left to pursue his dreams of big league glory. Six years later he was back, his dreams broken by a bad arm and bad habits — drinking, drugs, and women. He began to show signs of mental illness. Unable to keep a job, he moved in with his mother and slept twenty hours a day on her sofa.

    In 1982, a 21-year-old cocktail waitress in Ada named Debra Sue Carter was raped and murdered, and for 5 years the police could not solve the crime. For reasons that were never clear, they suspected Ron Williamson and his friend Dennis Fritz. The two were finally arrested in 1987 and charged with capital murder.

    Wikipedia entry — Esp see the links at the end.

  4. Is New York Getting Safer?

    Another excerpt from Collapse of American Criminal Justice, posted at Marginal Revolution:

    “New York is America’s safest large city, the city that saw crime fall the most and the fastest during the 1990s and the early part of this decade. Yet New York’s murder rate is 80 percent higher now than it was at the beginning of the twentieth century — notwithstanding an imprisonment rate four times higher now than then. That crime gap is misleadingly small; thanks to advances in emergency medicine, a large fraction of those early twentieth-century homicide victims would survive their wounds today. Taking account of medical advances, New York is probably not twice as violent as a century ago, but several times more violent. At best, the crime drop must be counted a pyrrhic victory.”

  5. New Yorker: "The Caging of America - Why do we lock up so many people?"

    The Caging of America – Why do we lock up so many people?“, Adam Gopnik, The New Yorker, 30 January 2012 — Excerpt:

    The scale and the brutality of our prisons are the moral scandal of American life. Every day, at least fifty thousand men — a full house at Yankee Stadium — wake in solitary confinement, often in “supermax” prisons or prison wings, in which men are locked in small cells, where they see no one, cannot freely read and write, and are allowed out just once a day for an hour’s solo “exercise.” (Lock yourself in your bathroom and then imagine you have to stay there for the next ten years, and you will have some sense of the experience.)

    Prison rape is so endemic — more than seventy thousand prisoners are raped each year—that it is routinely held out as a threat, part of the punishment to be expected. The subject is standard fodder for comedy, and an uncoöperative suspect being threatened with rape in prison is now represented, every night on television, as an ordinary and rather lovable bit of policing. The normalization of prison rape — like eighteenth-century japery about watching men struggle as they die on the gallows — will surely strike our descendants as chillingly sadistic, incomprehensible on the part of people who thought themselves civilized.

    … The more professionalized and procedural a system is, the more insulated we become from its real effects on real people. That’s why America is famous both for its process-driven judicial system (“The bastard got off on a technicality,” the cop-show detective fumes) and for the harshness and inhumanity of its prisons.

    … The inhumanity of American prisons was as much a theme for Dickens, visiting America in 1842, as the cynicism of American lawyers. His shock when he saw the Eastern State Penitentiary, in Philadelphia — a “model” prison, at the time the most expensive public building ever constructed in the country, where every prisoner was kept in silent, separate confinement — still resonates:

    I believe that very few men are capable of estimating the immense amount of torture and agony which this dreadful punishment, prolonged for years, inflicts upon the sufferers. . . . I hold this slow and daily tampering with the mysteries of the brain, to be immeasurably worse than any torture of the body: and because its ghastly signs and tokens are not so palpable to the eye and sense of touch as scars upon the flesh; because its wounds are not upon the surface, and it extorts few cries that human ears can hear; therefore I the more denounce it, as a secret punishment which slumbering humanity is not roused up to stay.

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