Criminal Justice

Did Procedural Protections for Criminal Defendants Perversely Lead to Longer Sentences?


A law professor’s book suggests a possible link between Warren court protections for criminal defendants and longer prison sentences.

Harvard law professor William Stuntz finished the book, The Collapse of American Criminal Justice, before his death from colon cancer earlier this year. In a Wall Street Journal (sub. req.) book review, University of Utah law professor Paul Cassell, a former federal judge, explains the link as he reviews Stuntz’s conclusions about harsh sentences and unequal treatment of defendants.

Because of procedural protections enacted by the U.S. Supreme Court such as the Miranda and exclusionary rules, sophisticated criminals and white-collar defendants are avoiding questioning about their crimes. Meanwhile, poor suspects often waive their rights and get less protection than before.

Because of these procedures, prosecutors are winning fewer convictions of violent criminals and opting to prosecute more easily proven drug crimes. Legislators responded with tough-on-crime sentences that sent the few who are convicted to prison for longer periods of time.

Cassell, who supports loosening the Miranda rule, faults Stuntz because “he seems to back away from his argument that excessive proceduralism is part of the problem.”

Another book reviewer—retired Justice John Paul Stevens—has a different take on Stuntz’s chapter on “Earl Warren Errors.” Writing in the New York Review of Books, Stevens says the chapter is “surprisingly unpersuasive.”

The book focuses not only on severity of the criminal justice system, but also its unequal treatment of African Americans, according to Stevens’ review. Stuntz argues that greater police discretion leads to selective arrests based on discrimination. “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,” Stevens writes.

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