On the collapse of criminal justice

There is a genre of writing about criminal law and the criminal justice system that presents the story of modern criminal justice as one of decline. There was a golden age at some point in the past - though precisely when this was depends on the thesis being advanced in the book - and the subsequent history is presented as a fall from grace. Ideals of clarity, simplicity and justice are departed from as the system becomes increasingly complex and bureaucractised. And the solution is always to go back to the future, a return to the model of the past as a way of moving forward.

An excellent example of this type of narrative is William Stuntz's The Collapse of American Criminal Justice (2011), a work which has been highly praised by reviewers. The diagnosis of the ills of the system is a largely familiar one. It is highly discriminatory against poor and black individuals and communities; punishments are increasingly harsh; and the rule of law has been increasingly undermined by official discretion in law enforcement - from the police deciding who to stop and search to the use of plea bargaining to replace jury trials, to legislative practices which have allowed the creation of broad offence definitions which ease the practice of enforcement. These three factors interact as discretion reinforces discrimination. These are then read through a historical narrative which tells the story of the departure of criminal justice from Golden (or rather Gilded) Age ideals. Stuntz is too smart to completely romanticise the past, but he still anchors the account in an appeal to simpler times.

These simpler times are seen in what has become known as the 'Gilded Age', roughly between 1880 and 1930. And this is read for two main factors. First, he claims that the system was more democractic, in the sense that there was greater local accountability, and second he argues that this system actually fostered greater commitment to the ideal of equal protection before the law. His account of this is complex and nuanced, but basically boils down to the idea that law enforcement officers lived in the communities where they enforced the law and juries comprised of local citizens had greater freedom to interpret how legal norms could be applied then this represented a check on state power, which was gradually undermined as the system was bureaucratised and made less accountable. More controversially, he argues that the due process reforms of the Warren Court in the 1960s were wrong because they undermined the pre-existing commitment to equal protection before the law.

There is a nostalgia for the past in this kind of thesis, that inevitably underplays certain features of the historical systems in favour of those which are seen to support the argument. However, rather than challenge the history with an alternative interpretation (which I am not sure that I am qualified to do), I am more interested in the structure of the argument. First of all, the nostalgia here, the appeal to simpler times, is deeply conservative. In spite of Stuntz's admission that he is primarily concerned with contemporary problems, this kind of move seems to me to express a desire not to engage with the present, to avoid the complexity of now by turning back the clock. Indeed the argument in the book works best when it drops the historical comparison and simply looks with a critical eye at developments in sentencing or policing. Nostalgia also inevitably underplays the complexity of the past, as we can appeal to an image that reinforces our existing prejudices. There is not a genuine historical interest here, because the argument is already known. And this points to the third move - redemption. We can be saved if we believe, but then the argument is itself predestined.

For some reason this genre seems particularly prevalent in the US - try googling collapse of american criminal justice and see how many examples come up. This may just be because dramatic titles sell books (collapse, decline, fall, death), but it probably also connected to something deeper. There is a lingering distrust of the state, evidenced in the faith in the original words or motives of the framers of the constitution, or the persistent desire to see their political system through the lens of de Tocqueville (a French tourist who showered it with praise in the 1820s). This might even be seen as a faltering commitment to modernity. Whatever it is, it is important in engaging with this to think not just of content, but also the form in which it is expressed.