Justice and Law in the United States: Ideals and Reality

William J. Stuntz provides a timely look at the sorry state of the criminal justice system in the US in his book The Collapse of American Criminal Justice. In the process, he provides the reader with a good description of the evolution of criminal law. A discussion of our Constitution and how the details therein defined the path we have followed is the subject today.

Stuntz defines two types of criminal laws. The first are substantive in nature: defining acts that are deemed criminal and the penalties that can be imposed for this behavior. The second are procedural in that they define which types of actions are available to policing agencies as they try to assign guilt or prevent crimes.

Writers of constitutions have to decide which of these types of law need constitutional constraints imposed upon them. It would seem obvious that both need to be dealt with, but that was not the case back in revolutionary times. Stentz provides an interesting contrast between two attempts to define a citizen’s rights to protection from a threatening government that were written at almost the exact same time: the US Bill of Rights (drafted by James Madison in 1789), and the French National Assembly’s Declaration of the Rights of Man and of the Citizen.

The French focused on protecting citizens from the imposition of unjust or unreasonable laws. Their document included phrases that would thrill libertarians today.


"Liberty consists in the power to do anything that does not injure others...."

"The law has the right to forbid only such actions as are injurious to society...."

The Bill of Rights, on the other hand, focused almost entirely on procedural matters.


"Procedure dominates these texts. Save for the First Amendment’s protection of speech and religion, nothing in the Bill of Rights limits legislators’ ability to criminalize whatever they wish. Save for the mild constraints of the Eighth Amendment [cruel and unusual punishments], nothing in the Bill limits the severity of criminal punishment."

States generally incorporated similar language in their constitutions.


"Along with the similar language that appears in state constitutions, these texts place substantive criminal law in the hands of politicians."

In Madison’s time, law was defined to be English common law as described in Blackstone’s Commentaries. This was law as defined by centuries of judicial decisions made in the context of trying to provide justice in balancing the arguments of the abused and the accused. The founding fathers apparently never dreamed that legislators would supersede this judicial system of law.

Stuntz points out a critical difference between the manner in which justice was dispensed in those days and where our procedural focus has led us today.


"In the eighteenth century as today, criminal defendants enjoyed the right to trial by jury. But that right meant something quite different two centuries ago: eighteenth century American juries had the power to decide questions of law as well as disputed facts...Jurors at the time of the Founding were not the mere lie detectors they have since become. They were moral arbiters; their job was to decide both what the defendant did and whether his conduct merited punishment. Criminal law meant whatever jurors said it meant: their will trumped even Blackstone’s text."

Stuntz argues that the focus merely on procedural constraints has had terrible consequences, because it has proven easy for legislators to create a legal environment whereby prosecutors can bypass the procedural constraints in search of criminal convictions.


"Using procedures to defeat defendant-protective substantive law is difficult, but using substantive law to evade or nullify protective procedures is remarkably easy—as is shown by the frequency with which American politicians have done it."

Stuntz tells us that criminal trial by jury has all but disappeared from our legal system, and when it does occur, it is so circumscribed by legislator-drafted law that neither the judge nor the jury has much leeway at injecting "justice" or extenuating circumstances into the proceedings. The process has been streamlined to facilitate the incarceration of suspected criminals.


"In 1974, 17,000 local prosecutors were responsible for some 300,000 felony prosecutions each year. Thirty years later, the number of local prosecutors had grown to 27,000—but the annual number of felony prosecutions had exploded, topping 1 million. In the earlier year, the percentage of felony convictions obtained by guilty plea stood at roughly 80 percent. In the later year, that percentage had reached 96 percent."

Perversely, attempts by the Supreme Court to ensure the protection of defendants’ right with procedural constraints such as Miranda rules caused a backlash that resulted in passage of more laws and more severe sentences for violating those laws.

Two factors aided prosecutors in extracting guilty pleas from suspects. First, the laws became more specific and eliminated any potential consideration of extenuating circumstances. Second, the severe penalties provided prosecutors with big sticks with which they could threaten suspects, and convince them to plea to a lesser charge. For example, a suspect with previous convictions in a three-strikes state can be threatened with the potential for life imprisonment or offered a few years in prison for pleading guilty to a lesser charge. The prosecutor may not have enough evidence for a conviction on the original charge, or he may simply not want to be bothered with going to court. The net result of such a situation is that a person ends up in jail without his guilt ever having been formally established.

The death penalty provides prosecutors with the biggest stick of all.


"Capital punishment’s largest consequence is not the few dozen executions that happen each year in the United States but the many life sentences imposed after plea bargains designed to avoid death sentences."

Stuntz describes the application of plea bargaining as a form of legal extortion.


"Outside the plea bargaining process, such threats would be deemed extortionate. Within that process, such threats were par for the course. That made guilty pleas, with harsh sentences attached, dramatically easier for the government to obtain."

Stuntz book makes the case that our legal system has become something it was never intended to be. Its evolution has led to the astounding circumstance wherein the nation as a whole is seeing dramatic drops in the level of criminal activity, yet exploding levels of criminal incarceration—predominately levied on one segment of the population—urban blacks.

There is much yet to be learned from Stuntz and his book.

William J. Stuntz was the Henry J. Friendly Professor of Law at Harvard University. He passed away just prior to the publication of his book.