Reply: Of Seatbelts and Sentences, Supreme Court Justices and Spending Patterns — Understanding the Unraveling of American Criminal Justice
Responding to William J. Stuntz, The Poltical Constitution of Criminal Justice , 119 Harv. L. Rev. 780 (2006)
David Sklansky and Bob Weisberg are among the smartest and most insightful scholars of criminal justice anywhere, maybe the two best. A large fraction of what I know about the field, I’ve learned from their work — they’ve taught me more than I’ve taught anyone. If they are on one side of a debate and I’m on the other, the smart money should be on them. On top of that, they’re both wonderful human beings: brilliant, wise, always interesting, and in Weisberg’s case, devastatingly funny. So I hesitate to argue with either of them. But . . . well, in for a penny, in for a pound. Having written this outrageous Article, I feel bound to defend it.
So, to the ramparts. The central issue that divides me from Sklansky and Weisberg, and the key thread that runs through both of their fascinating essays, is historical. To understand the current poor state of American criminal justice — more importantly, to understand how that poor state might be made better — one must first know where we came from, and how we got from there to here. Both writers suggest that my account of that history is, to put it charitably, thin. They’re right, and then some. I plead guilty to writing what amounts to the second half of a novel in which most of the action happened in the first few chapters. So what did happen? What did readers miss? Actually, I think the key points are nicely captured by the (truly wonderful) Sam Peltzman story that Sklansky recounts. Writing in the mid-1970s, Peltzman maintained that mandatory seat belts would accomplish nothing, because drivers would compensate by driving more dangerously. In Peltzman’s view, car travel yielded an equilibrium level of risk: if seat belts took a little risk away, drivers would compensate elsewhere, and we’d end up roughly where we started. As Sklansky notes and as we all know now, it didn’t work out that way. Traffic safety has improved massively. Seat belts helped. So have air bags and better built highways.
In Sklansky’s telling, this tale is an allegory for the past forty-five years of American criminal justice. Earl Warren’s Supreme Court plays the part of the regulators, pushing local police chiefs and district attorneys to improve the quality of justice they dealt out. I’m Sam Peltzman, arguing that Warren’s rules did as much harm as good, the same thing Peltzman said about seat belts. Notice the implicit bottom line. As seat belt laws made for safer car travel, so the criminal procedure revolution of the 1960s has produced a better, fairer, more just justice system. True, the system isn’t as good as it should be, and constitutional law could do better than it does. But surely the glass is at least half full. Maybe more.
119 Harv. L. Rev. F. 148 (2006) | DOWNLOAD PDF
