First Causes and the Dynamics of Criminal Justice
Responding to William J. Stuntz, The Poltical Constitution of Criminal Justice , 119 Harv. L. Rev. 780 (2006)
Near the end of Professor William Stuntz’s article, The Political Constitution of Criminal Justice, is a small but perfect example of the generative power of his work. The phenomenon: Congress legislates gratuitously broad federal crimes, often in areas quite well covered by state law, and sets very severe sentences. The reason: such laws are cheap political currency for federal legislators. Legislators score tough-on-crime points in their campaigns, while imposing little cost on the federal system itself, since U.S. Attorneys can selectively enforce these laws. The effect: the laws create a perverse externality. State prosecutors can use the federal laws as threats to coerce defendants into high-sentence state law plea bargains; meanwhile, federal courts waste time deciding arbitrary Commerce Clause linkages in episodic federal prosecutions. The solution: Congress should only legislate crimes when it carves out exclusive federal jurisdiction over conduct; or, at the very least, Congress should incorporate the state-level sentence in overlap crimes. The result: we eliminate the opaqueness, the lack of accountability, and the perverse externalities of the current regime.
Of course, as sharp and plausible as this insight is, it is hardly incontestable and could be viewed as having a hit-and-run quality. Even if the example has the causation right, Professor Stuntz does not give us enough political science to understand precisely why and how Congress creates this problem. Even if the effect of the federal lawmaking is rightly captured here, Professor Stuntz fails to provide enough information about how the communications and dynamics work; and even if his remedy sounds wonderful, he does not tell us by what constitutional or political means we can get there. But such criticisms or caveats would be churlish, because this brief example still amounts to ample intellectual work for a whole paper. It would be an awful cliché to say that by this example Professor Stuntz “poses serious questions, even if he does not offer easy answers.” It would be better to say that he makes us think about the right questions and challenges us to contest and refine his suggested answers. His example is at least a hypothetical blueprint for the rest of us toilers in the criminal law field.
119 Harv. L. Rev. F. 131 (2006)
