The November 10, 2011 issue of the New York Review of Books contains a review of The Collapse of American Criminal Justiceby William J. Stuntz. The review was written by John Paul Stevens, the most recent retiree of the U.S. Supreme Court. The review is available online, http://www.nybooks.com/articles/archives/2011/nov/10/our-broken-system-criminal-justice/. Stevens credits the book with accurately describing the two major problems with the American criminal justice system, its overall severity and its disparity in treatment of African Americans compared with other Americans.

Stevens says, "...the book emphasizes the importance of the parts that different decision-makers play in the administration of criminal justice. Stuntz laments the fact that criminal statutes have limited the discretionary power of judges and juries to reach just decisions in individual cases, while the proliferation and breadth of criminal statutes have given prosecutors and the police so much enforcement discretion that they effectively define the law on the street.

"Ironically, during an age of increasing protection for civil rights, discrimination against both black suspects and black victims of crime steadily increased. Stuntz attributes this development, in part, to the expansion of prosecutorial and police discretion-in his view, 'discretion and discrimination travel together.' For example, the discretionary authority to enforce posted speed limits has enabled state troopers to be selectively severe in making arrests, and to use those arrests to justify searches for evidence of drug offenses. While Stuntz does not suggest that such discriminatory enforcement of traffic laws is itself a national crisis, it provides one illustration of the negative effects of excessive enforcement discretion.

"The result, Stuntz writes, has been a serious disadvantage to African-Americans in their encounters with the American criminal justice system. While only 10 percent of the adult black population uses illegal drugs, as does a roughly equal percentage-9 percent-of the adult white population, blacks are nine times more likely than whites to serve prison sentences for drug crimes. 'And the same system that discriminates against black drug defendants also discriminates against black victims of criminal violence.' As 'suburban voters, for whom crime is usually a minor issue,' have come to 'exercise more power over urban criminal justice than in the past,' police protection against violent felonies has disproportionately extended to suburban neighborhoods rather than the urban centers where more black individuals reside.

"The 'bottom line,' Stuntz explains, has been that 'poor black neighborhoods see too little of the kinds of policing and criminal punishment that do the most good, and too much of the kinds that do the most harm.' In this sense and others, Stuntz concludes, our criminal justice system has 'run off the rails.'"

Justice Stevens summarizes the final chapter of the book as follows:

"First, he persuasively argues that putting more police officers on city streets is a policy move that should reduce both crime and the number of prisoners. By deterring crime with broader, more certain enforcement rather than heavy punishments for the few most easily caught, this policy would respond both to the problem of excessive penal severity and to the twin effects of systemic racial discrimination-excessive enforcement against black offenders and inadequate protection of black victims.

"Second, Stuntz believes that judicial interpretation of the equal protection guarantee in the Fourteenth Amendment should endorse the broad view that prevailed in the early years of Reconstruction, and that was rejected by the Supreme Court in 1876 in Cruikshank and more recently in McCleskey, Armstrong, and Castle Rock. His fundamental point is that the duty to govern impartially requires the state to provide all of its citizens with equal protection against violations of the law: no class should receive less police protection than another or be punished more severely for its crimes than another. The Eighth Amendment's prohibition against disproportionate punishments also applies that equality principle. The Court's recent decision prohibiting Florida from imposing a sentence of life without parole on a juvenile for a non-homicide offense is a step in the right direction because such a penalty is almost never imposed in other jurisdictions. Stuntz suggests other means of avoiding disparate sentencing for similar crimes.

"Third, he favors allowing judges greater discretion to rein in the political overexpansion of the criminal law. He supports judicial discretion to impose lighter sentences and therefore endorses the Court's decision in US v. Booker (2005) that essentially changed the federal sentencing guidelines from mandatory rules to advisory recommendations. By the same logic, I believe Stuntz would have opposed legislation imposing mandatory minimum penalties.

"Fourth, Stuntz clearly would limit the scope of prohibition and the severity of punishment for the possession or use of drugs. Such amendments would reduce discrimination against black defendants, diminish the severity of the entire system, and make it more difficult for prosecutors to obtain guilty pleas to serious crimes that they are not able to prove. Stuntz notes the same problem-guilty pleas to unprovable crimes-resulting from a prosecutorial practice of charging offenses that make the defendant eligible for the death penalty in order to bargain the defendant into accepting a life sentence. Because of the uniqueness of the fear of death, I find that prosecutorial bargaining chip particularly offensive since it seriously risks persuading an actually innocent defendant to plead guilty and to accept incarceration for his entire life. In my view, it should not be permissible."