Professor Jonathon Jacobs usefully invites us to think about the “Stuntzian” politics of crime, and the true nature of democracy, in light of other features of contemporary American politics writ large. If our politics is broken when it comes to crime and punishment – as Professor William J. Stuntz argues in his recent book, The Collapse of American Criminal Justice – what is the state of our politics (and hence our democracy) on other vital issues?
There is much common ground between Stuntz and Jacobs. Both suggest that America – supposedly the most democratic system in history – is actually surprisingly anti-democratic. The real power in our country is not reposed in “We the People,” as the preamble to the Constitution would have it, but rather in bloated, unresponsive government agencies that serve their own interests, often (some would say “invariably”) to the detriment of the citizenry. Big government, the very antithesis of individual liberty, reigns supreme – and will continue to do so absent a rebirth of democracy in America.
Stuntz claims that many of the most pressing problems in American criminal justice should be understood as failures of democracy. The central problem is that self-aggrandizing government bureaucracies (police forces, prosecutors, and legislatures) have usurped the power, traditionally reposed in individual citizens, at the local level, serving on grand juries and petit juries, to determine what the criminal law is and how it is enforced. Instead of serving as a democratic check on the criminal justice system, citizens are manipulated by it, with white suburban voters reflexively responding to cynical calls by candidates for legislative, judicial, and prosecutorial office for increasingly punitive (and surprisingly ineffective) approaches to public safety that everyone knows will be focused on inner-city minority communities.
Today, legislatures have enacted so many criminal laws, and defined crimes so broadly, that the criminal justice system gravely threatens individual liberty. The police can stop, search, and arrest virtually anyone they wish. Prosecutors can indict the proverbial “ham sandwich” and need not fear a vigorous defense from the vast majority of defendants (the poor) because legislatures seriously underfund public defender offices. Judges have made matters worse, not better, by using the Bill of Rights to regulate the procedures through which the criminal law is enforced rather than substantive injustice and discrimination – an approach which creates perverse incentives for legislatures to pass even more unjust and discriminatory criminal laws.
Not surprisingly, in this climate, the adversarial system of justice – that “great engine of truth,” to borrow a well-known description – intended by the Framers breaks down completely. Virtually everyone charged with crimes, even the innocent, reads the handwriting on the wall and pleads guilty. Wrongful convictions are rampant nationwide, as shown by the stunning success of Innocence Projects in freeing innocent defendants from death row. Moreover, even as crime rates are at generation lows, America maintains the largest prison population, and the highest rate of imprisonment, in the entire world, with more than two million people behind bars, a population in which blacks are seriously overrepresented. In short, government of, by, and for “the People,” with “liberty and justice for all,” has all but disappeared from the contemporary criminal-justice landscape.
Jacobs argues that the problem identified by Stuntz – a failure of real democracy – has many parallels in modern American politics. The root of the problem, says Jacobs, is that many citizens no longer accept responsibility for their own lives. In place of the Founding generation’s promise of “life, liberty, and the pursuit of happiness” – a formulation that charges individuals with promoting their own well-being and prosperity – our politics is now characterized by what Jacobs describes as a “culture of entitlement.”
In this distinctly modern view, it is the responsibility of government, at all levels, to do whatever is necessary to individual prosperity. In addition to bankrupting public treasuries and saddling future generations with mountains of public debt, Jacobs contends, the culture of entitlement has drained the vitality out of American democracy.
Elections are no longer contests between competing visions of the public good, with citizens exercising judgment about the national interest. Instead, elections are mere auctions, with politicians of both political parties seeking to buy votes with the public’s money, considerations of fiscal prudence and individual responsibility notwithstanding. The idea is to elect politicians who will use governmental taxing and spending powers to confer, and then steadily expand, the entitlements available to the citizens. As Jacobs puts it: “often, political campaigns are largely contests regarding the scale of benefits that each party will guarantee,” and politicians and citizens alike view it as “inappropriate to expect or require that individuals should make provision for themselves and for their futures.”
In this regard, it is useful to recall a question posted to candidates George H.W. Bush and Bill Clinton in a 1992 presidential town hall. A member of the audience pleaded with the candidates to “think of the American people as your children and tells us what you’ll do for us.” The question speaks volumes about the current state of democracy in America: It is the politicians, not “We the People,” who are sovereign, and citizens defer, in a manner befitting children dealing with their parents, to the very politicians they are supposed to be holding accountable.
Jacobs’ most useful contribution, in my view, is to demonstrate the corrosive effect of the culture of entitlement, and the big government it necessitates, on liberal society. Where Stuntz focuses on the deleterious effects of the demise of democracy on criminal justice – understandable, given that Stuntz was a legal scholar, not a moral or political philosopher – Jacobs takes aim at the effects on the democratic order, liberal society, and individual citizens.
According to Jacobs, citizens are no longer fellow participants in the shared, distinctly moral enterprise of managing the nation’s affairs in ways that promote the public good. Instead, they are essentially in a perpetual state of competition with one another, using their votes to claim for themselves an increasingly large helping from the public trough, without regard for the effects of their behavior on individual liberty and responsibility, not to mention the public fisc and future generations. Middle-class handouts, bailouts for Wall Street, corporate welfare, government healthcare, and rampant wealth redistribution are all natural outgrowths of the culture of entitlement – and of a democracy that is increasingly devoid of what Jeffersonians call “civic virtue,” in which individuals neither value freedom nor accept responsibility for their own lives. One need not be Ayn Rand to see to see, in this state of affairs, a threat of the gravest sort to individual liberty and private enterprise.
Jacobs helpfully cautions that democracy, in the sense of greater citizen participation, is not necessarily the panacea that Stuntz suggests. Even if individual citizens played a greater role, both as jurors and voters, in criminal justice, as Stuntz urges, more is required to restore democracy to its rightful place in the criminal law. What Stuntz fails to realize, Jacobs claims, is that many Americans simply lack the “habits and attitudes” that are the prerequisites for true democracy.
Citizens who shirk individual responsibility and defer, more or less blindly, to political authority are unlikely to be the civic-minded voters and jurors Stuntz has in mind for criminal justice. Rather, they will most likely defer to police and prosecutors about who should be charged and convicted, and respond to the politics of fear and distrust that politicians of both parties and local media outlets peddle for their own selfish ends. Jacobs is exactly right, in my judgment, that, for democracy to have any hope of doing the vital work that Stuntz wishes, individual citizens need to grab the reins of political power and recognize that justice and liberty are the responsibility of individual citizens exercising government power at the ballot box and in jury boxes.
I would caution, though, that Jacobs’ astute point can be taken too far. Even if he is right, as I think he is, that most citizens lack the attitudes required by popular sovereignty, there is still great value in Stuntz’s call for greater citizen participation in criminal justice.
Without plea bargaining, legislatures and prosecutors would no longer have a monopoly on the all-important decision of what conduct (and who) deserves punishment. Defendants would be deprived of liberty and property (for serious crimes only if juries agreed with the legislative definition of the crime and the prosecutor’s charging decision. This would force prosecutors to take into account, at the charging stage, whether the crimes and people they charge are the kinds of crimes and people that juries representative of the local community would agree deserve punishment. Even if juries would often defer to prosecutors in this regard, it still would increase the cost of imposing punishment and, ceteris paribis, lead prosecutors to be more discriminating (in the good sense of the word) in their invocation of the criminal sanction.
Moreover, it is worth noting that Stuntz does not merely seek more citizen participation. He also seeks to enhance the power that citizens wield as jurors. In a wise about-face from his previous position on the subject, he urges that the jury’s historic power to “nullify” criminal charges be reinstated, so that juries will be specifically told that their role is not just to decide whether the defendant committed the acts specified in the legislative definition of the crime, but to decide the larger normative question of whether the defendant deserves punishment. Freeing jurors from the shackles of opportunistic legislative crime definition – and allowing them not just to judge the facts, but the law itself – would require jurors to take personal responsibility for the outcome of criminal trials and increase immeasurably the risk that criminal trials would end in acquittals, not convictions.
The experience in capital cases is illustrative. Precisely because plea bargaining does not obviate jury trials on sentencing and capital jurors are “nullifiers” who are never bound to decree death, prosecutors know they cannot win death sentences unless jurors agree to impose the ultimate sanction. The costly nature of capital trials, combined with the jury’s recognized role as a dispenser of mercy and the requirement of juror unanimity, forces prosecutors to be very selective in charging capital crimes. In many localities nationwide, that has resulted in little or no enforcement of the death penalty. Even when prosecutors do use the death penalty, they face a significant likelihood that the jury – even when “death qualified” to exclude individuals who are deemed too reluctant to impose death – will choose life over death.
The jurors who decide these capital cases presumably are no better, in terms of civic virtue, than other jurors and the average voter. Nevertheless, when the legal system vests them with personal responsibility for the decisions they reach and frees them the legislative straight-jacket, capital jurors have shown that they will not rubber-stamp prosecutorial decisions to seek death. If given the same latitude as their death-penalty counterparts, jurors in ordinary prosecutions would presumably show the same willingness – however they vote in elections – to second-guess prosecutorial decisions that they regard as out of step with the values of their local communities.
Furthermore, Jacobs overlooks the possibility that greater, and more meaningful, participation by citizens in the criminal justice system might serve to inculcate the very habits and attitudes that he believes to be essential to genuine democracy. If many voters lack those habits and attitudes, that may not be entirely the fault of politicians. It may simply reflect the fact that, in most parts of our country today, ordinary citizens have little opportunity to participate in government and hence develop civic virtue. In criminal cases, where jurors have no direct interest in the outcome, citizens may have the opportunity not only to learn for themselves how the criminal justice system fails to live up to the politicians’ “hype,” but also to exercise dispassionate judgment about what is right and just.
Stuntz was occasionally accused of what might be called the “Golden Age fallacy,” and even Jacobs’s appropriately more cynical account of voter motivation is open to the accusation. The idea, popularized in a recent Woody Allen film (“Midnight in Paris”), is that it is a form of escapism to wax nostalgic about a simpler, better time when the problems of the present did not exist, for the simple reason that every generation has its own problems, and those problems often differ only in degree from those faced in the past. Presumably, voters have always been motivated by self-interest – which is one reason why the authors of The Federalist Papers famously decried “faction” and sought to divide, and check-and-balance, governmental power. They knew all too well, from debates over slavery and from the history of the failed republics that predated them, that “men” – both rulers and ruled alike – are by no means “angels.”
What is needed, therefore, is not a return to a prior age characterized by civic virtue. The task, alas, is not nearly so simple. We need to educate Americans about the value of liberty and the role of individual responsibility, and only then can we begin the gargantuan yet vitally important task of reining in the criminal justice system and other bloated bureaucracies that so routinely trample individual liberty and disserve the public interest they purport to protect. Unless we accomplish this larger task, “liberty and justice for all” will remain an empty slogan – and, importantly, not just for our fellow citizens who are charged with crimes or locked up in prison.
When surveying the critical response to the late William J. Stuntz’s final scholarly work, The Collapse of American Criminal Justice, one notices that two characterizations recur most frequently. The first relates to Stuntz’s transcendence of the traditional political divisions that so frequently dominate discussion of crime and criminal justice. The second is his great emphasis…