justice Archive

…via a review of The Collapse of American Criminal Justice by William J. Stuntz. Sample:

Rather than focus on particular criminal laws, 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.

Delves into the history of race and criminal justice in the US, tracing Stuntz’ historical narrative. Interesting stuff.

Particularly interesting: Stevens takes up Stuntz critical comparison of Prohibition with the War on Drugs:

While “the law of Prohibition may have been foolish,” it was also far less severe than the modern war against drugs. It did not prohibit the mere possession or consumption of alcoholic beverages, only their manufacture, sale, and transport; it exempted use in private homes and service to “bona fide guests”; and doctors were expressly permitted to prescribe the use of alcoholic drinks for therapeutic purposes. Today prison sentences are imposed for simple possession of marijuana and a long list of other controlled substances, and federal law (as upheld by the Court in a 2005 opinion that I wrote, Gonzales v. Raich) even bars possession of home-grown marijuana prescribed to combat the nausea that attends most cancer treatments.

Stuntz describes some harms of alcohol consumption and criticizes Prohibition, but he does not address facts about Prohibition’s enforcement costs or the consequences of its repeal. Those consequences obviously included the replacement of significant litigation and imprisonment costs with generous tax revenues, and expansion of profitable commerce in the production and marketing of alcoholic beverages. On the other hand, as Stuntz’s own reasoning suggests, those consequences also likely included an increase in alcohol consumption, which continues to have serious adverse social effects today.

Such a discussion of the pluses and minuses of the repeal of Prohibition might have provided information relevant to a debate on the wisdom of current drug enforcement policies. As Stuntz mentions, the absence of developed debate among present-day political leaders about drug policies is striking in light of the openness of the debate among political leaders in the 1920s and early 1930s—such as Al Smith, the Democratic presidential candidate in 1928—about the wisdom of prohibiting alcohol. In short, while Stuntz’s discussion of Prohibition is interesting and informative, it omits a potentially valuable assessment of how the lessons from Prohibition’s repeal might bear upon, and inform political debate about, the current war on drugs.

I bolded the parenthetical because I think its a funny contrast to the faith Stevens goes on in the same paragraph to express that there is a serious political debate to “bear upon, and inform.” Leaving Stuntz off the table, there’s plenty out there to inform just such a debate were it to start existing. Not least, the recent Canadian Supreme Court decision regarding InSite (a Vancouver safe-injection clinic)’s exemption from enforcement of criminal drug possession laws and the mountain of sociological, criminological, and medical research that was drawn upon both in the decision and in the clinic’s legal team’s factum, or the research that’s been done in Portugal studying the social, criminal and medical consequences of their decision in the early aughts to decriminalize all narcotics (e.g. Greenwald’s Cato report).

It is striking that there isn’t a debate to contribute to, but it’s a problem of democracy, not of lack of potential content and reasoning. On one side anyway.