It's not me, it's you; no, it's me: social origins of unequal justice

The problem with U.S. criminal justice is that it consists of people making rules that govern the lives of other people.  This, paraphrasing, was an aside from a professor a couple years ago, and is

front-runner for the most interesting thing

I learned in law school.  I’m thinking about that statement Iately because I just got an email that he’s retiring for health reasons.  His name is Bill Stuntz and he has been blogging here.  Update: NYT: “W.J. Stuntz, Who Stimulated Legal Minds, Dies at 52.”

In the case of U.S. criminal justice, the implications have been bad.  In the past 70 years the inequality and severity of punishment has risen dramatically.  Easy explanations are official racism and hyperventilation over drug use.  But this doesn’t explain the phenomenon: official racism, while not gone, has decreased; and prior waves of punishment over vice crimes, like Prohibition, did not produce the injustice that we see today.

The explanation, it turns out, is centralization of democratic power.  Self-segregation of cities shifted legislative power from mixed urban populations to homogenous suburban populations.  All of a sudden people were making rules that governed not their neighbors and relatives but some other group of people down the interstate.

To the suburban voters, state legislators, and state and federal appellate judges whose decisions shape policing and punishment on city streets, criminal justice policies are mostly political symbols or legal abstractions, not questions the answers to which define neighborhood life. Decisionmakers who neither reap the benefit of good decisions nor bear the cost of bad ones tend to make bad ones. Those sad propositions explain much of the inequality in American criminal justice.

Court decisions and legislation also reduced the amount of discretion in the judicial system: there were more opportunities for prosecutors to get easy wins, and there was less scope for local juries to show leniency.  This standardization of criminal procedure was intended to reduce injustice (in the South), however it ended up increasing injustice everywhere: increased government power arrived at the same time that government became more selectively responsive to a segregated society.

Localism and democratic politics seem antithetical to egalitarian criminal justice. Localism means difference and variation: tough enforcement here and lax enforcement there, moralist legal doctrine in one place and libertarian rules in another. A criminal justice system under the thumb of voters and politicians is a system prone to act on majoritarian prejudices. Taken together, local control of criminal justice institutions and political control of those institutions would appear to maximize discrimination, not equality.

History suggests the opposite conclusion.

The remedy is not more laws, or even more law enforcement, but rather more opportunites for residents to be the judges of their neighbors, through local democracy, jury trials, and more discretion in substantive law.  This is all discussed much more thoroughly, and with lots of interesting data and anecdotes, in Prof. Stuntz’s latest paper “Unequal Justice” (also source for quotes above).

(Recall, reader, that neuroscientists won’t be leaping to the defense of our ability to think fairly about other people.)

Frequent flyers of this blog know that I’m sort of obsessed with this idea, a fire that I stoke on this blog, in annoying comments on other blogs, and in mood-killing conversations with friends.  What are the implications of the fact that institutionalized aid and international justice are systems of some people making decisions that influence, to a large degree, how other people live their lives?

Um, are you trying to suggest something?

I acknowledge my hypersensitivity to this question, and I recognize that the similarities between these different domains are thin.  But I also maintain that there’s a surprising lack of self-awareness about this issue among people who are in those businesses of making decisions that affect other people.  I wanted to thank Prof. Stuntz for opening my eyes to that.