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I’ve recently read reviews by both retired Supreme Court justice John Paul Stevens and the nation’s best-known federal appellate judge, Richard J. Posner, on The Collapse of American Criminal Justice, by William Stuntz, a law professor at Harvard who died earlier this year. The New York Review of Books, for which Stevens wrote, and the New Republic, Posner’s venue, gave them plenty of space, and they made the most of it. Both greatly respect Stuntz’s book, but they have issues, and these begin with the title. “I would not characterize the defects in American criminal justice that he describes as a ‘collapse,’ and I found his chapter about ‘Earl Warren’s Errors’ surprisingly unpersuasive,” writes Stevens. “The American criminal justice system is not in a state of collapse, or even in any danger of collapse,” writes Posner.
As Stevens, though he thinks Stuntz is overstating it, sympathetically puts the author's case, "The proliferation and breadth of criminal statues have given prosecutors and the police so much enforcement discretion that they effectively define the law on the street." And Posner tells us Stuntz’s "real complaint" is that the system "is oppressive, and in particular oppressive of blacks. He argues that it imprisons too many Americans, and in particular too many black Americans."
But what was that about Earl Warren? Stuntz, writes Posner with approval, “is impossible to pigeonhole politically: he certainly is not tough on crime, but neither is he a civil libertarian—indeed, he is a fierce critic of the liberal criminal-procedure decisions of the Supreme Court when Earl Warren was the chief justice.”
Posner devotes most of his review to walking us through Stuntz’s iconoclastic thinking on the Warren court, and I would say he’s delighted to do so. Posner's reputation precedes him here. He’s a jurist who likes big, encompassing ideas, vigorously argued (usually by him), that upset applecarts. (Now I’m thinking of his 2003 opinion eviscerating reporter’s privilege in Chicago and the rest of the Seventh Circuit.)
America’s Founding Fathers made a huge mistake with the Constitution, says Stuntz (as channeled by Posner). Their Bill of Rights got things backwards; it codified “purely procedural rights . . . already well-established in state practice,” when it should have been guarding liberty by setting “substantive limits on criminalizing private conduct” and requiring “equality in law enforcement”—as the French did when they wrote their Declaration of the Rights of Man, which declares “the law has the right to forbid only such actions as are injurious to society.”
It was a blunder for which African-Americans, two centuries later, were still paying dearly. They suffered not from the law’s procedural defects but from “discriminatory law enforcement, about which the Supreme Court did nothing until the 1930s and very little until the 1950s and 1960s. . . What Southern blacks mostly needed was protection against criminals: both white, because of vigilante justice, and black, because the law enforcement system was largely indifferent to black-on-black crime.”
An example from Stultz's book, cited by neither Posner nor Stevens, is Emmett Till, a black teenager from Chicago murdered with impunity in Mississippi in 1955. Stultz argued, "Had the Court taken steps to give the likes of Emmett Till—along with the many black crime victims in northern cities whose victimization the justice system ignored—a greater measure of 'protection of the laws,' voters might have seen and approved the justice of the Justices' approach. But the proceduralized law that the Court made seemed designed to protect the guiltiest suspects and defendants. That was not a pattern likely to appeal to ordinary voters."
Yes, but when the Supreme Court finally got around to doing something, wasn’t it the Warren Court that did it? Posner writes that black-on-black crime surged in the 1960s, for reasons that probably had something to do with rising black militancy causing the police to decrease their presence in black communities. And the Warren Court’s “liberal criminal-procedure decisions” made matters worse. Posner, always happy to convert a legal issue into dollars and cents, quotes Stuntz: “In the short run, the Court’s rulings made criminal law enforcement and litigation more expensive, which meant even less criminal punishment—when the price of anything rises, its incidence falls—and (probably) still more crime.”
In Stuntz’s view, these rulings were “a gross political blunder,” Posner writes. “He points out that such notable decisions as Mapp (requiring the exclusion in state criminal proceedings of evidence seized in violation of the constitutional prohibition of unreasonable searches and seizures) and Miranda (requiring that criminal suspects be warned of their rights before being interrogated in custody) protected criminals and by doing so made it more difficult to convict them—and this resulted, at least initially, in reduced deterrence and incapacitation. As he puts it, pungently, ‘The defense lawyers who enforced those rights were not bringing forward evidence of their clients’ innocence but suppressing evidence of their guilt.’”
And of course there was a backlash. “Canny Republican politicians” campaigned on law-and-order platforms and won, so Democrats followed suit, and in office they did what they’d promised to do. “The Supreme Court,” writes Posner, “seems not to have reckoned with the ability and the desire of Congress and state legislatures to offset, by defining new crimes and increasing the severity of punishments, the Court’s efforts to protect criminal defendants. Even if, by virtue of the procedural rights that the Court has given criminal defendants, fewer innocent people are convicted nowadays, those fewer innocent defendants are on average punished more severely, so that the aggregate suffering of the innocent may be no less than before the Warren Court intervened heavy-handedly in criminal procedure—especially since, as in the case of Mapp and Miranda, the major beneficiaries of procedural rights for criminal defendants are criminals, rather than innocent people falsely charged.
“Stuntz’s criticisms of the Warren Court will anger civil libertarians, but they are very powerful.”
Stevens covers a lot of the same ground—they clearly read the same book—but with a less acute focus and with less relish: we’re not in the company of someone reveling in a big, contrarian, idea. But Stevens does locate and quote the passage in Stuntz’s book that perhaps most succinctly makes the author’s point:
When politicians both define crimes and prosecute criminal cases, one might reasonably fear that those two sets of elected officials—state legislators and local district attorneys—will work together to achieve their common political goals. Legislators will define crimes too broadly and sentences too severely in order to make it easy for prosecutors to extract guilty pleas, which in turn permits prosecutors to punish criminal defendants on the cheap, and thereby spares legislators the need to spend more tax dollars on criminal law enforcement.
Stevens was a moderate Republican on the Seventh Circuit when President Ford raised him to the Supreme Court in 1975, and although changes in that court led him to be reclassified as one of its liberals, he was never considered doctrinaire. If you saw Moneyball and are willing to put up with a clumsy baseball analogy, Posner’s into Sabermetrics and Stevens is an old-school talent scout with a traditionalist's eye for quality. When Stevens comes to Stuntz’s chapter eight, “Earl Warren’s Errors,” he doesn’t find the arguments so very powerful.
To begin with, the chapter title is misleading, Stevens writes, “because much of the chapter does not describe ‘errors,’ but rather unintended consequences of decisions [Mapp, Miranda] that I think were clearly correct. . . . It is quite unfair to criticize Earl Warren for his ‘poor timing’ just because the Court found it necessary to make unpopular decisions when the public was especially concerned about rising crime rates. Indeed, a paramount obligation of the impartial judge is to put popularity entirely to one side when administering justice.”
That’s as heated as Stevens gets. In general, his review is more descriptive than Posner’s, and less argumentative. It doesn’t pursue as taut a line through Stuntz’s book and it’s not as exciting to read. It’s more discursive — Stevens recalls germane cases he heard on the Supreme Court before he retired last year. And it's more informative. Possibly because Stevens has Warren’s back, he also has more of his back story. As the 13th Amendment (1865) abolished slavery, “it seems clear that the Fourteenth Amendment  was intended to end . .. lynching,” Stevens writes. It forbids the states to “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” When in Colfax, Louisiana, on Easter Day of 1873, “Klansmen killed sixty-two black men—some of whom were unarmed and had attempted to surrender,” the federal government stepped in. But three years later the Supreme Court ruled that the federal government could not prosecute the killers because it lacked jurisdiction: the 14th Amendment, its justification for intervening, limited only the states themselves, not private citizens living within them. It was a political ruling, Stevens writes, that “constrained the Fourteenth Amendment’s equal protection principle in a manner that has not been undone.” (Despite the Warren Court.)
Like Posner, Stevens cites the Declaration of the Rights of Man. Unlike our Bill of Rights, Stevens tells us, it “contained a definition of ‘liberty’—‘the power to do anything that does not injure others.’” And it limited the power to criminalize conduct to “only such actions as are injurious to others.”
Stevens tells us something Posner does not, which is that Stuntz “recognizes that those French principles did not survive Napoleon’s rule.” You and I might be tempted to wish they had, and to wonder if American law today would be any different and better if they’d been written into our own nation’s legal DNA. I have my doubts: never underestimate the power of an aggrieved American to be as creative as Rube Goldberg when making the case that he and his will be injured grievously if someone anywhere, behind closed doors, does something of which he doesn’t approve. In the Jim Crow era, the injuries would have included what whites suffered when blacks voted, though not what blacks suffered when whites lynched them. The hypocrisy would have been even easier to see, but it was always easy enough.