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by Peter Moskos

March 16, 2012

Procedural versus substantive justice

There's a great review of William Stuntz's book, The Collapse of American Criminal Justice (which I have but have not read). Stuntz was conservative, just FYI. The review is by Leon Neyfakh in the Boston Globe. Stuntz's point is that procedural justice is not the same is real justice. And the trend towards the former, encouraged by liberals, has actually screwed everything up. It's quite convincing, at least in summary form. Neyfakh explains it well, particularly how well intentioned layers have helped screw everything up, with their misguided faith in the magic of procedure:
At the heart of the book is Stuntz’s surprising argument about how we reached this point: that well-intentioned Supreme Court rulings meant to protect defendants from unfair and discriminatory police practices combined with the harsh laws passed in response to the crime wave of the 1960s and ’70s to produce a system that is merciless, destructive, and above all, unjust.
Stuntz described it as a chain reaction, set off by the fact that the court had focused all its efforts on procedure, and had failed to impose any substantive limits on what legislators could criminalize and the punishments they could impose.
In effect, those rights that the Warren Court gave defendants have become bargaining chips, to be traded away by defense attorneys in exchange for shorter sentences.
The practical result, Stuntz writes, is that the criminal justice system is now anything but local, and mostly indifferent to the people whose lives are most directly affected by it. Poor minorities who live in the urban neighborhoods with the most crime are living under laws passed to please middle-class voters who live elsewhere, and processed by a system built to force a guilty plea rather than determine whether they actually deserve to go to prison.
“It is the lawyer’s conceit to believe, on some level, that if you can get the procedure to be perfect, that will ensure that the results will be perfect,” said Joseph Hoffmann, a professor at the Indiana University Maurer School of Law, who has known Stuntz since the two of them clerked together on the Supreme Court. “It’s the way most lawyers look at the world....They would say procedural justice is how you get to substantive justice.”
Alas, the real world doesn't work that way.

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