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New Stuntz Article Online:
Harvard lawprof Bill Stuntz, perhaps the most interesting and influential writer in the field of criminal procedure in the last decade, has just uploaded a new piece: The Political Constitution of Criminal Justice. I've just skimmed over it, and it looks terrific. Here is the abstract:
  The politics of crime is widely seen as punitive, racist, and inattentive to the interests of criminal suspects and defendants. Constitutional law is widely seen as a (partial) remedy for those ills. But the cure may be causing the disease. At the margin, constitutional law pushes legislative attention - and budget dollars - away from policing and criminal adjudication and toward punishment. The law also widens the gap between the cost of investigating and prosecuting poor defendants and the cost of pursuing rich ones. Overcriminalization, overpunishment, discriminatory policing and prosecution, overfunding of prison construction and underfunding of everything else - these familiar political problems are more the consequences of constitutional regulation than justifications for it.
  Solving these problems requires radical constitutional reform. The article explains why, and then offers brief sketches of what that reform might look like in five areas: policing, crime definition, adjudication, punishment, and federalism. It closes by explaining how reform could happen, and why it probably won't.
Medis:
There does seem to be a correlation between the "familiar political problems" in question and elaborate mandatory criminal procedures. But I will be interested to see how he proves the direction of the causal link.
8.16.2005 5:59pm
Mark (mail):
My impression, after a medium-fast read of the article, is that, while it contains quite a few very insightful observations about the criminal justice system in the US today, the best that can be said about what I see as the article's main thesis:

Overcriminalization, overpunishment, discriminatory policing and prosecution, overfunding of prison construction and underfunding of everything else - these familiar political problems are more the consequences of constitutional regulation than justifications for it

is that it is far from proven. Indeed, Stuntz openly acknowledges that many, if not all, of these ills would have come about in the complete absence of the Supreme Court's revision in crimimal procedural law in the 1960's. He is reduced to complaining that the Supreme Court has "increased the magnitudes" of these problems, and he fails to make any convincing arguments that this is the case.

I also am far from persuaded by Stuntz's claims that, in the absence of Court-imposed reqirements like the exclusionary rule, majorities would demand that legislation be passed creating adequate protection of people's rights to due process in criminal cases. His evidence for such claims is very weak.
8.16.2005 8:16pm