Incarceration and the Bill of Rights

One of the great pleasures of teaching multiple courses is to see the many threads that connect them.  This is not to say that law is a seamless web.  It isn't.  But there are twisting and turning concatenations.  This is happening for me this semester with criminal law and constitutional law.  One little example is that my view of the congressional delegation to the US Sentencing Commission in Mistretta is colored by the knowledge that the Sentencing Reform Act contains a panoply of justifications of punishment -- and so my first reaction after reading the case was to wonder whether a group of folks with no electoral accountability and no obvious constitutional warrant should be charged with the eminently political task of balancing conflicting theories of punishment that will bind the rest of us. 

I spotted another perhaps more macrocosmic crossover in this column by Adam Gopnik, which discusses some of the claims by the late Professor William Stuntz in his book, The Collapse of the American Criminal Justice System.  The argument in Gopnik's piece, which he attributes to Stuntz, that especially interested me was this.  In searching for a reason why the United States incarcerates more people than other Western European countries, Gopnik writes that Stuntz traces the problem:

all the way to the Bill of Rights.  In a society where Constitution worship is a requisite on right and left alike, Stuntz startlingly suggests that the Bill of Rights is a terrible document with which to start a justice system -- much inferior to the exactly contemporary French Declaration of the Rights of Man....

The trouble with the Bill of Rights, he argues, is that it emphasizes process and procedure rather than principles.  The Declaration of the Rights of Man says, Be just!  The Bill of Rights says, Be fair!  Instead of announcing general principles -- no one should be accused of something that wasn't a crime when he did it; cruel punishments are always wrong; the goal of justice is, above all, that justice be done -- it talks procedurally.  You can't search someone without a reason; you can't accuse him without allowing him to see the evidence; and so on.  This emphasis, Stuntz thinks, has led to the current mess, where accused criminals get laboriously articulated protection against procedural errors and no protection at all against outrageous and obvious violations of simple justice....

The obsession with due process and the cult of brutal prisons, the argument goes, share an essential impersonality.  The more professionalized and procedural a system is, the more insulated we become from its real effects on real people.  That's why America is famous both for its process-driven judicial system...and for the harshness and inhumanity of its prisons.  Though all industrialized societies started sending more people to prison and fewer to the gallows in the eighteenth century, it was in Enlightenment-inspired America that the taste for long-term, profoundly depersonalized punishment became most aggravated.

It's an interesting piece, and I should mention that I haven't read Professor Stuntz's book.  But I'm dubious about at least some of these claims.  Some questions about this thesis after the jump.

First, the problem that Gopnik seems want to talk about doesn't strike me as one which affects "Enlightenment-inspired" nations.  After all, Gopnik himself raises the example of France, and if any nation can be characterized as Enlightenment-inspired, surely it is France.  And other European nations, I should think, are heavily Enlightenment-inspired, but they have opted for different approaches to incarcerations (different from the US, and often different from one another).  So the argument that it was the Enlightenment which put us on the road to mass incarceration seems to be at the least far too sweeping without serious qualification.

Second, as to the claims that (1) it's better for a society to be oriented toward justice than to procedure, and (2) it's necessary that this orientation be plainly expressed in its founding documents, I am unsure about (1) and doubtful about (2).  With respect to (1), it may be that the good society is one which aspires to justice and due process.  But Gopnik seems to be saying not only that society ought to be so oriented, but that the government ought to be charged with pursuing justice in at least equal measure as it pursues due process.  And the fact that the Bill of Rights contains numerous procedural guarantees but few loftier guarantees of substantive justice (i.e., (2)) seems to be specially relevant in the column.

But the trouble is that governments -- those no less of "the people" than of monarchs -- often make bad mistakes about the location of justice.  Governments which ardently pursue justice can become oppressive, just because of the ambition of their political aims.  One underlying idea in the Bill of Rights, it seems to me, is that because we are pessimistic that the national government is particularly good at pursuing justice, and because national governments often believe themselves truly excellent at pursuing justice, we want to limit the extent to which the national government aspires to so lofty a goal.  The government of France, I think, begins with a different sort of presupposition about the government's capacities.  And it is unclear to me that an orientation toward justice necessarily will mean greater sympathy toward the incarcerated.  It might also mean greater thirst for blood: the gallows and the execution block are highly personal -- even intimate -- affairs.

I will admit that in our pessimism about government's ability to pursue and achieve justice, perhaps we have lost some sight of the fact that justice is an end to be pursued, as the Constitution's preamble itself says.  But I wonder about the incarceration connection that Gopnik (and perhaps also Stuntz...I do not know) draws between a government that is oriented toward process and one which is oriented toward substantive virtue.  Great Britain, for example, has an unwritten constitution whose orientation is more proceduralist than substantive in this admittedly crude division.  And yet it has incarceration rates much lower than the United States.  So is it really true that a country which is oriented procedurally is fundamentally any less distant from its incarcerated population than one which is substantively oriented?  I am uncertain about this.

Anyway, an interesting read which makes me very much want to read Professor Stuntz's book.