William Stuntz on the Structural Causes of “Massive Over-Incarceration”
Harvard Law School recently held a conference in celebration of criminal procedure scholar William J. Stuntz, which can be viewed in its entirety via webcast here. As many legal scholars around the web have noted (e.g. here), Stuntz’s work has been transformational in the field of criminal procedure, particularly in opening up new ways of thinking about how institutional arrangements and incentives may have driven the American criminal justice system in unintended directions and towards unintended extremes. All of Stuntz’s work is a must-read for anyone interested in criminal justice issues. But given the focus of this blog, I thought I’d highlight just one point — Stuntz’s hypothesis about the causes of over-incarceration. Here’s a summary from the Weekly Standard write-up of the conference:
At the end of the first session, Stuntz highlighted three problems he believes contribute to massive over-incarceration and which merit further study. First, he noted the vertical allocation of power between state legislatures and local governments, where the former define criminal laws but do not oversee their enforcement, allowing local prosecutors and police departments free rein to pursue their own goals. Second, the horizontal allocation of power between police and prosecutors, with prosecutors exercising more control over the number of people who go to jail, which has risen despite the fall of the urban arrest rate in the 1990s. And third, the increasingly statutory nature of criminal law, which has obscured the considerations of a defendant’s intent that once allowed for nuanced sentencing decisions under the common law, in favor of an increasingly strict liability system allowing less room for lesser punishments.