Harvard law professor William Stuntz, whose book The Collapse of American Criminal Justice was published posthumously in 2011, rigorously analyzed data regarding crime and imprisonment rates.
He concluded that the turn toward procedural priorities in an attempt to create a more egalitarian criminal justice system was misguided, and ultimately helped contribute to America's racially disparate and deplorably high incarceration rate.
The unintended consequence of 1960s Supreme Court decisions that dictated process requirements for criminal investigations and arrests was, in effect, to make prosecutions more expensive and plea bargains cheaper. The unsurprising result? Ninety-six percent of criminal cases never go to trial, where constitutional protections are applied. Guilty pleas waive those rights.
Stuntz called it a blunder when the court relied more on the 1791 Bill of Rights (due process) instead of the 1868 14th Amendment (equal protection), primarily because the court was focused on abuses in the South rather than successes in the North regarding crime.
In northern cities following Reconstruction, lower incarceration rates didn't correlate with more crime, but less. Northern urban police forces were much larger than those in the South, and even though the North was only marginally more racially enlightened, black and white men in the early 1900s were often acquitted in similar numbers there--usually by all-white juries.
The key was, they were local juries. A major detriment of a half-century of procedural focus in criminal justice has been the bureaucratization and centralization of the system. Local juries in the past wielded great discretion, especially in the consideration of criminal intent--Blackstone's requisite "vicious will." Today the detailed formulation of criminal statutes often ties their hands; early American criminal law was authored by judges, contemporary criminal law has been crafted by legislators.
Making matters worse, juries aren't typically local anymore in the geographic sense regarding urban neighborhoods. Neither are prosecutors nor police; only one in three Little Rock Police Department officers lives in city limits. So while crime is local, Stuntz noted that its prosecution and punishment policies are decided mostly by people for whom it is an abstraction rather than a defining daily reality.
The principles Stuntz outlined merit consideration and application. The "community policing" movement is a step in the right direction, but since Little Rock violence reached some all-time highs in the most recent FBI data, a flying leap is more in order.
Creating well-policed neighborhoods only takes more money. Stuntz was critical of the lack of federal funding for metro departments, and that may be a good area to explore some creative lobbying.
Staggering imprisonment rates in minority city neighborhoods has created what amounts to an emergency among black families that affects local education, employment, commerce and social success. Governors routinely declare states of emergency when natural disasters wreak disorder to the degree that society is disrupted. There are crime-ridden city streets and corners in numerous American cities and in Little Rock where a state of disaster essentially exists.
Why shouldn't federal aid be allowed to flow FEMA-style into city neighborhoods where disorder dominates, and fund more police presence? As Stuntz pointed out, the cost of 100,000 more cops nationwide would be a small increment against total criminal justice system outlays. Little Rock's relative share would be tiny.
The community-police distrust dynamic would also undoubtedly be improved if what Stuntz called "local democracy" involving criminal justice could be restored.
Decentralizing the system in targeted areas won't be easy, but declaring that as a strategic goal would be. Fortunately, states still retain jurisdiction over most common-law criminal matters. Unfortunately, statehouse legislation is political.
But with a solid partisan majority, if political will can be developed toward allowing residents of communities hardest hit by crime to have more control and power over their own law and order destiny, the way to do it will follow.
Stuntz pointed out the competing interests that high-crime urban communities battle: the desire for safer streets, but also the hesitancy to send local boys off to prison. The best governance, Stuntz believed, and the best solutions in terms of achieving both lower crime and lower incarceration rates, stem from learning from the past instead of repeating it.
The modern justice system for too long now "has emphasized the quantity of criminal punishment and not its quality," Stuntz wrote. Reversing that pattern will mean significant change: During the lowest crime periods in the Northeast and Midwest, the police-to-prison-inmate ratio was roughly 2:1. The national figure now is bent over backwards at less than 1:2.
Stuntz also suggested using technology to create a check-and-balance system for sentencing that would catalog databases to compare interstate crime penalties. That way disparities could be identified and remedied, forcing the government to adhere "to the rule of law, not to the rule of prosecutors," Stuntz wrote.
Here in the South, we once missed an opportunity to aid in righting a grievous racial wrong.
We bear a greater obligation than our northern brethren to lead today as a Brandeisian "laboratory of democracy" in trying novel experiments toward reducing the crime and punishment that disproportionately damages black communities and families.
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Dana D. Kelley is a freelance writer from Jonesboro.
Editorial on 05/18/2018