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| In a famous article published thirty years ago, an economist named Sam Peltzman argued that seatbelts and other mandated safety devices in cars had done little good. Sure, they made crashes less dangerous. But drivers responded by taking less care. The result was only a modest drop in driver and passenger fatalities, fully offset by a rise in pedestrian deaths — at best no net benefit and arguably a change for the worse. The article caused a sensation. The results were attractively counterintuitive, the argument was ingenious, the underlying idea about human behavior made a certain amount of sense, and the implications were wide-ranging. The narrow lesson was that people had stubborn preferences, including for the risks they ran, and those preferences resisted modifications imposed from above. The broader lesson was that there were more things in heaven and earth than regulators understood. Social complexity undid social engineering.
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| Peltzman’s argument eventually acquired the colloquial shorthand “killer seatbelts.” It has provided the template for several decades’ worth of scholarship reaching similarly counterintuitive results, and teaching similarly humbling lessons, about virtually every sacred cow of the Great Society. Professor William Stuntz’s new article, The Political Constitution of Criminal Justice, is a particularly impressive contribution to that large literature. Like most everything Stuntz writes, the article resists summary. It is full of sharp observation and wise counsel on a staggering range of criminal justice topics, from police tactics to prison spending. Stuntz squeezes more insight onto a single page than most of us manage to put in a whole article. But the core of his argument is this: the “criminal justice revolution” — the constitutional regulation of criminal justice initiated by the Warren Court and continued, sometimes half-heartedly, by its successors — has worsened the very ills it was intended to remedy. Politicians have reacted to new constitutional rules in criminal justice by abandoning innovation in areas regulated by the Supreme Court and by shifting spending away from those areas to other areas where it does less good. Criminal justice would be better without the Court’s intervention. It would be better still if the Court intervened in smarter ways — ways calculated to make politics healthier rather than to override it.
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| In the decades since Peltzman’s classic article, automotive safety requirements have continued to proliferate, and highway deaths have continued to fall — for pedestrians and vehicle occupants alike. The weight of the evidence now suggests that if safety devices lead to less careful driving, the effect is far more modest than Peltzman suggested, and not nearly enough to offset the benefits of the devices. It turned out that the unanticipated, secondary effects of highway safety regulation were less important than their straightforward, expected effects. Peltzman was mistaken.
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| I think Stuntz is mistaken, too, and for a similar reason: he has overestimated the importance of unanticipated, secondary effects. I should say at once that this does little to detract from the considerable value of Stuntz’s article, because — as always — Stuntz has much to teach us. He is utterly convincing, for example, when arguing that criminal procedure law pays too little attention to systemic issues of inequality and nonfeasance; that the quality of justice dispensed by our criminal justice system depends in part on how much we are willing to spend on it; and that law and politics help to shape each other, in criminal justice as elsewhere. He is plainly right, too, that legislatures have a mixed record protecting the interests of people stopped or investigated by the police and a far worse record providing fair treatment to convicted criminal defendants. But I think Stuntz is wrong to blame the legislatures’ failures on the courts and wrong to suggest that the politicians would likely do better if the judges would simply leave them alone.
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| My reasons for skepticism are threefold. First, 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.
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Suggested citation: David Alan Sklansky, Killer Seatbelts and Criminal Procedure, 119 Harv. L. Rev. F. 56 (2006), http://www.harvardlawreview.org/forum/issues/119/jan06/sklansky.pdf
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Replies in the Harvard Law Review Forum |
Of Seatbelts and Sentences, Supreme Court Justices and Spending Patterns
— Understanding the Unraveling of American Criminal Justice
by William J. Stuntz
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