Example research essay topic: William Stuntz The Pathological Politics Of Criminal Law - 1,753 words

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William Stuntz "The Pathological Politics of Criminal Law." INTRODUCTION While many factors that make positive sentencing reform rather problematic remain, different factors have come together at the beginning of the new century which made such reform more possible than it has been for a many years. On the other hand, as these critical factors are not likely to remain in adjustment for a long period of time, they challenge progressive reformers to work and react with dispatch. One of the prevalent themes in sentencing reform consists in the word reintegration. The first element of that subject is restorative justice - a system of criminal justice and punishment that is focused on repairing the relationship that is broken by the crime between victim, offender, and community. The second element of the reintegration theme concerns a shift that must appear when harsh punishments are imposed - a focus on reintegration of the released inmate into the community and free society. The third main element concerns the unequal disposal of discretion in the current structure of sentencing.

The effort in the sentencing reform to eliminate discretion and create openness and equality, often called transparency, has advanced, but not enough. Discretion has not vanished, but rather in critical situations, it has simply been transferred to another location - to the prosecution in its decisions on whom to prosecute and specifically on what offenses to charge. Since discretion hasnt, shouldnt, and cant be removed from the system, it should be, in operated and justified steps, accorded to judges and to corrections officials for inmates who take steps favorable to successful reintegration. The abovementioned events provoke criminal theorists and legal philosophers to analyze, ponder over and suggest their ideas and decisions over the subject, just as did Professor William J.

Stuntz in his article The Pathological Politics of Criminal Law. THESIS STATEMENT A major element of the sentencing reforms in the 1980 s and 1990 s was that discretion should be removed from imposition and service of sentences and that the process be understood as transparency. Judicial discretion was a clear target of the reforms. It is obvious that some of the discretion once held by judges has not vanished from the system. Instead, a considerable plot of judicial discretion has been transferred to prosecutors, who determine which crimes to charge and dictate the terms of plea bargains because of the drastic and fixed sentences that face the accused under mandatory sentencing systems.

In the article Professor William Stuntz discusses a similar phenomenon, which he sees rather diffusive in the modern relationship between the prosecution and lawmakers. The pathological politics to which he turns is not a blind tough-on-crime political agenda but a tough-on-crime perspective by legislatures. The development of a set of incentives, without controls, that works in constantly extending the potential for harshness and according increasingly greater power and discretion to prosecutors is the pathological part. Main arguments of Stunts concern the law reform movements that regularly want to broaden or narrow the scope of some criminal liability rules, always on the assumption that with its help they will broaden or narrow the range of the punished behavior. He asserts that criminal law does not drive criminal punishment. It would be closer to the truth to state that criminal punishment drives criminal law.

Moreover changes in criminal liability rules do not necessarily mean changes in the scope or nature of behavior punished by the system. Surely, this means that substantive criminal law is ceasing to operate step by step. As criminal law expands, both lawmaking and adjudication pass into the hands of police and prosecutors; not the law but law enforcers determine who goes to prison and for how long. The final point of this progression is obvious: criminal codes that cover everything and decide nothing, that serve only to, delegate power to district attorneys' offices and police departments. In part I Stuntz looks briefly at criminal law's breadth, its past and present.

Steady expansion of criminal liability is not a novelty; on the contrary, criminal codes have continually expanded throughout the past century and a half. This broadening mirrors certain patterns, with state codes extending fast earlier in the century and the federal codes extending fast more recently, and with state legislatures and Congress tending to add different types of crimes. In state and federal jurisdictions alike, though, the end result is criminal codes that cover more conduct than it is required to punish, covering core crimes many times over. Stuntz questions why criminal codes are so broad, and why they are always getting broader. A large part of the answer involves not the ideology politics and public opinion, but the institutional design and incentives politics. He claims that criminal law is driven by two politics: surface politics, the sphere in which public opinion and partisan argument operate, ebb and flow, just as crime rates do.

According to William Stuntz, we are coming ever closer to a world in which the law on the books makes everyone a felon. He concludes that anyone who studies contemporary state or federal criminal codes is likely to be struck by their scope, by the sheer amount of conduct they render punishable. He proves it with numerous trivial and exotic examples which nobody can improve on, like California prohibits knowingly allowing the carcass of a dead animal to remain within 100 feet of a street or alley, selling alcohol to a common drunkard, or cheating at cards. Ohio proscribes homosexual propositions.

Texas criminalizes overworking animals, etc. Federal law is even worse in this respect as Stuntz asserts. Stuntz focuses attention on the problem that by permitting convictions to be based on a suspect's mere possession of suspicious goods, statutes that needed defendants to "account" for possession also "watered down" the elements of the common larceny law and made convictions significantly easier to attain. On this point, Stuntz's highly suggestive is description of the historical evolution of the substantive criminal law in America. "Suppose a given criminal statute contains elements ABC; suppose further that C is hard to prove, but prosecutors believe they know when it exists. Legislatures can make it easier to convict offenders by adding new crime AB, leaving it to prosecutors to decide when C is present and when it is not.

Or, legislatures can create new crime DEF, where those elements correlate with ABC but are substantially easier to prove. Prosecutors can continue to enforce the original crime, but more cheaply, by enforcing the substitutes. " The second part is the core of the article. W. Stuntz examines the criminal law-making process and the incentives that process causes. The central idea is that prosecutorial discretion leads legislatures to extend criminal law's net, and discretion plus legislative supremacy prevents courts from reining in that tendency, which will of course be more pronounced at some times and in some areas than others.

But it is always present, a necessary feature of any system that divides power among legislators, judges, and prosecutors as the system does. The tendency to increase number of crimes is more distinct at the federal level than in the states. In the last part of the article Stuntz asks what steps would be needful to solve the problems that attend criminal lawmaking. There are two types of answers.

One is to abolish enforcement discretion, to require that the crimes created by legislatures are actually punished. This solution is as unrealizable as it is familiar. The next answer is to abolish legislative supremacy over criminal law, to cease legislatures' ability to decide how far criminal law's net should expand. This answer in turn splits into two probable approaches. The first would depoliticize criminal law, preserving legislators nominally in control but clothing real lawmaking power in other bodies.

The Model Penal Code was, to some extent, the product of such a process, and it is widely, and perhaps not correctly regarded as a great success. As Stuntz confirms so too is the Federal Sentencing Commission, whose work is universally criticized. Based on the experience with expert commissions and sentencing over the last twenty years, depoliticizing criminal law occurs to be unpromising; it is as probable to intensify the system's current pathologies as it is to lessen them. CONCLUSION While much remains unaltered, a series of new factors are merging in this new century that makes it feasible to diagram new directions in sentencing policy. These factors include tighter budgets, substantially lower crime rates, high levels of incarceration - especially among minority populations - and an uncertainty about the theory of sentencing and punishment. The latter is seen in the dramatic leveling off of national imprisonment numbers after years of sizable and steady increase.

A spirit change is seen with the burst of the restorative justice movement that seeks to restore and reintegrate. Inevitably, greater attention will be paid to reintegrating into society the large numbers of released offenders convicted of harsh crime. The use of discretion should be extended to others besides prosecutors for reasons of transparency and even public safety. These changes will not occur suddenly, but instead will be the outcome of difficult debate and incremental shifts. Both vertically and horizontally, the lawmaking and law enforcement system seems to remarkably diffuse power. What is required is authentic rule of law protection - a countervailing power that can check prosecutors' and legislators' power to define crimes and sentences on their wish.

What is also needed is a huge addition of power to courts that are, as many concern, already seen as having more power than they should have. Stuntz claims that the most specious lawmakers are the courts and the most specious vehicle is the federal constitution. That cause alone motivates to believe Stuntz that it seems unlikely that criminal law's structural problem will be solved, or even addressed, anytime shortly after. Criminal theorists have shown relatively slight interest in protecting principles of criminalization and applying them to reshape criminal codes. But Stuntz who is very conservative, and very much a legal academic proves to be more interesting and more convincing than arguments and thoughts of his liberal colleagues.

After reading through the relatively standard introduction, it was surprising to find an article that was packed full with insight and common sense. Stuntz does not waste time - every few sentences, he suggests an idea that another law professor might burden with pages of excessive analysis and citations. Moreover William J. Stuntz's article has a refreshingly casual style that makes the article convincing and the reading pleasant.

Research essay sample on William Stuntz The Pathological Politics Of Criminal Law