The Political Constitution of Criminal Justice

Special Republication: Article by William J. Stuntz

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 in this instance, 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 corrections. The law also widens the gap between the cost of investigating and prosecuting poor defendants and the cost of catching and punishing 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 four areas: policing, adjudication and crime definition (two fields that are better seen as one), punishment, and federalism. It closes by explaining how reform could happen, and why it probably won’t.