Imprisoned in America

In a review of The Collapse of American Criminal Justice by William J Stuntz, David Garland writes: The scandal of criminal justice in the United States is by now a familiar one, its facts are well known, its causes extensively canvassed. So what can another book tell us that we don’t already know? A surprising amount, as it turns out. The existing analyses are mostly conducted by sociologists and political scientists. William J. Stuntz brings the perspective of a law professor – focused on substantive law, procedural rules, and the evolution of legal doctrine. He reminds us that, whatever its underlying social, political and cultural causes, the build-up of racialized mass imprisonment was the product of legal actors – police, prosecutors and judges – and the legal rules and organizational incentives that governed their actions. And if America’s astonishing levels of imprisonment, its harsh sentencing, and its racial disparities are tolerated, it is because the Supreme Court has repeatedly affirmed that they comply with constitutional law.

The book also offers a different political perspective. Most critiques of American criminal justice are by liberals and progressives, but Bill Stuntz – who died, aged fifty-two, shortly before this book was published – was a registered Republican, an evangelical Christian, and a revisionist thinker with a fondness for “law and economic” perspectives. His viewpoint is refreshingly unpredictable and runs against the grain of conventional wisdom. It is a devastatingly critical account nevertheless. American criminal justice is, he writes, devoid of the rule of law, “wildly unjust” and the “harshest in the history of democratic government”.

The core problem, Stuntz says, is the massive and unrestrained power of police and prosecutors. Over the past forty years, criminal law in the US has become all-encompassing. There are now 40,000 federal criminal offences – above and beyond the state crimes that constitute the vast majority of offences (and which also grow apace). Many of these new offences, above all, drug and gun legislation, require little evidence, no proof of criminal intent, admit of little mitigation, and carry harsh penalties. Instead of restraining officials, criminal law provides them with an extensive battery of weapons which they can use as they see fit. [Continue reading…]

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