The collapse of American justice

Sep 24, 2011
The collapse of American justice
Not long ago, we had a low incarceration rate and a system that worked. Then everything started to unravel
By William J. Stuntz


This article is an adapted excerpt from the new book "The Collapse of American Criminal Justice," from Harvard University Press.

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. 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 reason 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 wildly 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' judgments came to define criminal justice outcomes. Second, discrimination against both black suspects and black crime victims grew steadily worse -- oddly, in an 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 to the 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 trend is the least familiar: a kind of pendulum justice took hold in the twentieth 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 United States 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.

Berwyn Heights Mayor Cheye Calvo and his wife Trinity Tomsic were victims of a mistaken police raid last week

My guess is that the police chief belonged to a different political party than Mayor Calvo. My opinion is, of course, influenced by watching San Diego District Attorney Bonnie Dumanis and her henchman Patrick O'Toole conduct political prosecutions for the past couple of years.

Police chief expresses regret over drug raid
By Gus G. Sentementes
Baltimore Sun
August 9, 2008

Prince George's County police Chief Melvin C. High said yesterday that a suburban Washington mayor and his wife were "innocent victims of drug traffickers" and expressed regret for the loss of the couple's dogs during a raid on his home last week.

Meanwhile, the FBI has opened an investigation into the actions of the county police officers who burst into the house of Berwyn Heights Mayor Cheye Calvo and shot the dogs. Calvo and his mother-in-law were handcuffed after the officers mistakenly suspected he was involved in shipping marijuana to his home.

Special Agent Richard Wolf, a spokesman for the FBI's Baltimore field office, said the agency has opened a civil rights investigation upon the request of Calvo...

The innocent bystander turned out to be the perpetrator

Bruce Ivins was able to shift suspicions to Steven Hatfill.


In Anthrax Case, Hindsight Shifts View of Ivins Actions to Aid Probe Appear Now As Cover-Up
By ELIZABETH WILLIAMSON and SIOBHAN GORMAN
August 9, 2008

Bruce Ivins...took an overdose of painkillers and died in an apparent suicide last week. The FBI said the government scientist was close to being charged in 2001's deadly anthrax attacks.

One night in autumn 2001, as the U.S. reeled from the worst act of bioterrorism in its history, Bruce Ivins was alone in his cluttered Fort Detrick, Md., office, scrubbing phones, walls and furniture.

For colleagues, this was proof of the anthrax scientist's attention to safety. From a distance of seven years, it might be evidence of his guilt.

Like the detective in Agatha Christie's play "Mousetrap" who turned out to be the murderer, Dr. Ivins played a haunting dual role in the anthrax mystery, federal law-enforcement agents say. He was part of the team that examined the poisoned letters. Investigators say he implicated other scientists and submitted incomplete samples to throw them off-track...