One of my former professors, who has recently made criminal justice reform one of his main research areas, recommended that I read this book, The Collapse of American Criminal Justice, by William Stuntz. It’s a must-read if you care about criminal justice reform. Whereas it’s become popular to claim that our problems with mass incarceration are rooted in the war on drugs, Stuntz demonstrates unequivocally that the problems in the system go much deeper and much farther back. A combination of misaligned incentives between the many actors involved in the system, the Supreme Court’s ill-advised decisions tightening procedural requirements, and increasingly broad and rigid criminal statutes all combined to produce the nightmare we have today, in which our incarceration rate dwarfs that of any other liberal democratic nation in the world.
Stuntz provides a lot of helpful economic analysis. One of the main takeaways from the book is that the way costs are distributed in the criminal justice system encourages incarceration rather than crime prevention. Localities pay for their own police forces, while states pay for prisons. It is thus more cost-effective for local prosecutors to punish crime than to prevent it, as their counties do not bear the cost of punishment. Stuntz’s solution is to shift some of the costs of policing to the state, as well as to shift some of the costs of prison maintenance to localities. This way, localities have more of an incentive to prioritize prevention than punishment.
After all, there is an inverse relationship between the number of police officers active in a county and the number of incarcerations, which is at least a proxy for violent crime. Having more police around will make neighborhoods safer while also reducing the need to incarcerate such large swaths of our population. Arguably, increasing the presence of police in areas that most need policing will help to improve the quality of policing, as well. Strong police presence deters crime and gives officers less reason to fear for their lives (which is the most common defense offered by officers who kill innocent people).
Perhaps the most eye-opening part of the book for me was Stuntz’s discussion of the Supreme Court’s rulings on criminal procedure, such as Mapp v. Ohio, Miranda v. Arizona, and Gideon v. Wainwright. In effect, Stuntz argues, these rulings did little to secure the substantive rights of prisoners as a result of their misplaced emphasis on procedures. The Court’s rulings made conducting trials prohibitively expensive and less accurate in most cases, leading to the rise of plea bargaining in most or all cases. By tightening procedural requirements, the Court incentivized the abuse of plea bargaining that’s partially responsible for our overcrowded prisons. Moreover, the tightening of procedural requirements by the Court helps guilty and innocent alike, simultaneously making it harder to distinguish between the two, which is one of the most important functions of the justice system.
The shift away from trials and toward plea bargains was facilitated by the increasing codification of the criminal law. As Stuntz shows, criminal law used to be primarily judge- and jury-made. Locally selected juries had broad power to acquit defendants for just about any reason. This gave localities more control over the dispensation of justice in their communities. The vagueness inherent in unwritten common law gave room for communities to decide for themselves how to deal with crimes.
Nowadays, our criminal law is mostly found in statutes. Crimes are far more precisely defined, giving juries and judges less leeway in deciding who is to be punished and who is to be let go. Moreover, codification has made it possible for individuals guilty of only one criminal act to be charged with many crimes, each carrying its own sentence. The result is that criminal defendants have more incentive to accept plea bargains, even if the bargain includes a potentially excessive term. For a relatively minor criminal act, one might be put in jail for years and years as a result of the multiplication of criminal charges.
Stuntz doesn’t seem particularly optimistic about the possibility of reform. He suggests, however, that it’s possible. Reading the book has made me want to be a part of such reforms. I’m not sure what kind of involvement that might be.