9 Pages Posted: 26 Jan 2006 Last revised: 9 May 2012
This online essay replies to Professor William Stuntz's important recent article, The Political Constitution of Criminal Justice, 119 Harv. L. Rev. 780 (2006). Stuntz's central claim is that constitutional regulation of criminal procedure has worsened the very harms it was intended to address, because politicians have abandoned innovation in areas regulated by the Supreme Court (like policing) and shifted spending away from those areas to other areas where it does less good (like prisons). I argue against that conclusion, on three grounds. First, contrary to what Stuntz suggests, judicial rulings haven't significantly impeded the ability of politicians to control the police. Second, politicians haven't done a better job regulating those aspects of criminal procedure that courts have left entirely alone or have addressed, as Stuntz recommends, with default rules. Third, there are simpler explanations for the political pathologies that Stuntz identifies, including an explanation that Stuntz himself provides.
Keywords: criminal procedure, Supreme Court, politics, prisons, police
Suggested Citation: Suggested Citation
Sklansky, David Alan, Killer Seatbelts and Criminal Procedure. Harvard Law Review Forum, Vol. 119, No. 56, 2006; UC Berkeley Public Law Research Paper No. 878221. Available at SSRN: https://ssrn.com/abstract=878221