William J. Stuntz
Harvard Law School
Harvard Law Review, Vol. 121, June 2008
Inequality is a core feature of American criminal justice, but its causes remain obscure. Official racism has declined even as the black share of the prison population has risen. The generation that saw the rise of enormous, racially skewed punishment for drug crime followed the generation that saw the rise of civil rights for black Americans. What explains these trends? One answer - the decline of local democracy - has received too little attention in the growing literature on this subject. A century ago outside the South, high-crime city neighborhoods were largely self-governing; residents of those neighborhoods decided how much criminal punishment to impose, and on whom. Those locally democratic justice systems were both remarkably effective and surprisingly egalitarian. During the last half of the twentieth century, local democratic control over criminal justice unraveled. Residents of high-crime cities grew less powerful; suburban voters, legislators, and appellate judges grew more so. Prison populations fell sharply, then rose massively. Both times, the effects of the change were disproportionately felt in urban black neighborhoods.
Parts I and II of the Article explore these trends. Part III turns to the future, and asks what steps might be taken to reverse them. I suggest three changes: better-funded local police forces, more trials to locally selected juries, and more vaguely defined crimes (to give those juries opportunities to exercise judgment). Those changes would make urban criminal justice more democratic, more lenient, and more egalitarian.
Number of Pages in PDF File: 75Accepted Paper Series
Date posted: February 6, 2008 ; Last revised: April 22, 2008
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