delanceyplace.com 12/7/11 - the justice system is broken

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In today's excerpt - in the past, as an outgrowth of America's democratic roots, an individual accused of a crime was most likely to face local law enforcement officials, a locally elected prosecutor, and a jury of local peers. In the view of Harvard Law Professor William Stuntz, this has structurally changed:

"In most countries, national governments or provincial governments enforce criminal law. [In the United States], local institutions—chiefly city police forces and county prosecutors' offices—do most of the enforcing, while locally selected juries judge those criminal defendants who take their cases to trial. Likewise, in most of the world prosecutors and judges are civil servants. Here, local prosecutors—the ones who try the large majority of cases—and trial judges (appellate judges, too) are, with few exceptions, chosen by voters of the counties in which they work. At least in theory, these features of the justice system give citizens in crime-ridden neighborhoods a good deal of power over criminal law enforcement in their neighborhoods.

"That power is less substantial than it once was, thanks to four changes that happened gradually throughout the twentieth century. First, crime grew more concentrated in cities, and especially in poor neighborhoods within those cities. Historically, crime was not an urban problem in the United States: cities' murder rates were no higher than the nation's. In the last sixty years, that has changed. Poor city neighborhoods are more dangerous than they once were, and wealthier urban and suburban neighborhoods are probably safer. Today, a large fraction—often a large majority—of the population of cities and metropolitan counties live in neighborhoods where crime is an abstraction, not a problem that defines neighborhood life. This gives power over criminal justice to voters who have little stake in how the justice system operates. Second, the subur­ban population of metropolitan counties mushroomed. This shift in local populations matters enormously, because prosecutors and judges are usually elected at the county level. Today, counties that include major cities have a much higher percentage of suburban voters than in the past. This means suburban voters, for whom crime is usually a minor issue, exercise more power over urban criminal justice than in the past.

"Third, jury trials, once common, became rare events. The over­whelming majority of criminal convictions, more than 95 percent, are by guilty plea, and most of those are the consequence of plea bargains. This change shifts power from the local citizens who sit in jury boxes to the less visible assistant district attorneys who decide whom to punish, and how severely. Fourth and finally, state legislators, members of Con­gress, and federal judges all came to exercise more power over criminal punishment than in the past. The details are complicated; how and why this change happened is one of this book's larger stories. But the bottom line is clear enough: a locally run justice system grew less localized, more centralized.

"All these changes limited the power of residents of poor city neighborhoods—the neighborhoods where levels of criminal violence are highest. Residents of those neighborhoods, most of whom are African American, have less ability than in the past to govern the police officers and prosecutors who govern them. As local democracy has faded, the rule of law has collapsed, discrimination has grown more common, and crimi­nal punishment has become prone to extremes of lenity and severity. Here as elsewhere, correlation does not prove causation. But this coincidence seems more than coincidental. If criminal justice is to grow more just, those who bear the costs of crime and punishment alike must exercise more power over those who enforce the law and dole out punishment."