Chris Uggen's Blog: individual rights and mass incarceration

Tuesday, September 20, 2005

individual rights and mass incarceration

kai erikson noted in the 1960s that deviant forms of conduct seem to derive nourishment from the very agencies devised to inhibit them. can efforts to inhibit injustice have similarly perverse unintended consequences? a new paper by harvard law professor william stuntz makes the provocative claim that the vigorous pursuit of constitutional rights is partly to blame for mass incarceration. the abstract:

The politics of crime is widely seen as punitive, racist, and inattentive to the interests of criminal suspects and defendants. Constitutional law is widely seen as a (partial) remedy for those ills. But the cure may be causing the disease. At the margin, constitutional law pushes legislative attention - and budget dollars - away from policing and criminal adjudication and toward punishment. The law also widens the gap between the cost of investigating and prosecuting poor defendants and the cost of pursuing rich ones. Overcriminalization, overpunishment, discriminatory policing and prosecution, overfunding of prison construction and underfunding of everything else - these familiar political problems are more the consequences of constitutional regulation than justifications for it.

stultz's basic argument is that constitutional law creates political "taxes" and "subsidies" that make some kinds of crime control cheap and others more costly. for example, the supreme court aggressively regulates policing and trial procedure, but generally leaves the substantive criminal code and sentencing to the politicians -- where they go hog wild expanding the number of laws and raising sentence length. he also argues that prison budgets get a "constitutional subsidy" whereas local police and courts must ante up a "constitutional tax." here's a taste of the argument:

Earl Warren and his colleagues did little to expand due process and even less to guarantee “the equal protection of the laws.” Instead, they used the Fourth, Fifth, and Sixth Amendments to ratchet up regulation of state and local criminal processes. That choice had three perverse consequences. First, it made the constitutional law of criminal justice primarily about criminal procedure. Second, it focused the law’s attention on trial procedure, not on the discretionary processes that actually dispose of most cases.196 Third, the Warren Court’s Bill of Rights-based regulation used constitutional law to protect majoritarian values, not countermajoritarian ones (pp. 47-48).

well, then! stuntz makes clear that he is no proponent of business-as-usual mass incarceration, but he makes a fascinating counter-intuitive proposition: could gideon's trumpet, earl warren, and the aclu have actually increased the levels and inequalities of punishment in the past generation? or is this simply piling on -- another game of "pin the blame upon the liberal?" [realizing, of course, that civil libertarians come in conservative flavors as well]. i'm skeptical of stuntz's claims, but intrigued by the causal chain he hypothesizes.


At 12:36 PM, Anonymous Anonymous said...


Thanks for drawing attention to a provocative argument. And although I share your initial skepticism, I’m curious WHY you are skeptical (I ask because your blog always provides insight)?

In some ways, Stuntz’s argument might not be so surprising or innovative. There seem to be other explanations complementing Stuntz’s logic that link the due process revolution with the ensuing punitive regime. I’m theorizing off the cuff, but consider (1) a sociological argument: The civil rights era accompanied by the due process revolution threatened existing arrangements. As much research suggests, such a “threat” often yields punitive responses. (2) a political opportunist argument (a la Beckett): The liberal Warren Court could be labeled as soft on crime, giving the conservatives a wedge issue for elections. (3) A more direct legalistic argument: Due process limited discretion, causing legislators to err on the side of caution, and thus mandatory minimums and guidelines prevail. None of the above replicate Stuntz’s thesis, but they reach the same end.

I’m not sure what to make of available data germane to Stuntz’s argument. As he might predict, local, state and federal legislators are appropriating more funds to corrections than law enforcement, IF measured as a percentage increases over the last couple decades. On the other hand, corrections expenditures pale in comparison to money for policing in terms of raw dollars (at the local and federal levels, but not for states), which MIGHT contradict his thesis. Perhaps a brighter mind than mine could devise a coding instrument to measure changes in legislative discourse before, during, and after the due process revolution - that might be telling.

I would hope social scientists don’t brush this off as anti-leftist crap. As my mom would say before disciplining me, ‘actions have consequences, and we don’t always like them.’

At 3:36 PM, Anonymous chris said...

great comments, anonymous, though (like Comte) I see all 3 arguments as sociological ;)

my guess is that all 3 also played a role in different periods and that the "wedge issue" hypothesis is especially compelling during the punishment ramp-up. i love a good "unintended consequences" story but the group threat approach also tells me to look for motive and intended consequences.

what i like best about stuntz's argument is that he really approaches the problem as a "system" rather than a set of isolated institutions. i get the image of squeezing a balloon on the con-law side and watching the prison population burst out on the corrections side. i guess that gets me back to a structy-funky explanation. A good empirical test of the sort you suggest is clearly needed.


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