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The Political Constitution of Criminal Justice

91 Pages Posted: 14 Aug 2005  

William J. Stuntz

Harvard Law School

Date Written: December 2005

Abstract

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 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 punishment. The law also widens the gap between the cost of investigating and prosecuting poor defendants and the cost of pursuing 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 five areas: policing, crime definition, adjudication, punishment, and federalism. It closes by explaining how reform could happen, and why it probably won't.

Suggested Citation

Stuntz, William J., The Political Constitution of Criminal Justice (December 2005). Harvard Public Law Working Paper No. 126. Available at SSRN: https://ssrn.com/abstract=783565 or http://dx.doi.org/10.2139/ssrn.783565

William J. Stuntz (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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