Abstract

Recently, William Stuntz, a Harvard law professor, proposed a number of provocative and controversial measures for achieving equality in American criminal justice. In this paper, I argue that Stuntz's radical proposals are not likely to provide a solution to the inequality problem, which as Stuntz acknowledges is predominantly related to the criminalization of drugs. I argue that the imbalance between African American and Anglo-American criminalization would be equalized substantially if drug taking and dealing were decriminalized. Why criminalize these victimless activities if the consequence is merely to over-burden a criminal justice system that is already exceptionally costly to maintain? Professor Stuntz does not evaluate the justice of enforcing drug offenses, nor does he distinguish these victimless crimes from serious criminality such as rape, robbery murder and so on. Instead, he seems to suggest that less African Americans should be criminalized regardless of the type of criminality involved. Stuntz's blanket solution for ensuring that white and black Americans are criminalized in equal numbers is to localize criminal justice and remove many of the cardinal procedural protections that evolved from the Warren era jurisprudence. I question the justice of introducing a discretionary localized criminal justice system with the aim of allowing some of those who are deserving of punishment to evade conviction and arrest for engaging in criminal conduct. If murder, rape and robbery are genuine crimes (in that they involve victims (others) who are genuinely harmed), then the justice issue is simply that we need to make sure that whites are targeted proportionately when they engage in such activities, not that African Americans are targeted less. This certainly would be the case for genuine objective wrongs that involve victims such as murder, rape, robbery and theft. If these types of wrongful harms were not enforced consistently, it would be the victims who would be the bearers of injustice. Allowing guilty people to evade criminal justice purely because of their race without considering the type of crime and wrongdoing involved is untenable. If x has raped, then he should go to jail regardless of his race and irrespective of whether other whites are evading conviction because of biases in enforcement practices, etc. The only justice issue here is to ensure the white rapist is caught as well. Per contra, if x is jailed for using drugs, then the question is what has he done wrong? Why should he go to jail for this type of victimless crime? Race is not an issue but for the fact that we know that many African Americans are over-represented in jails because they are more likely than whites to be prosecuted for drug offenses, even though drug use rates are similar for both races. In my response to Professor Stuntz, I argue that the real issue of justice is simply that drug offenses do not involve direct harm to others, and that the solution is to decriminalize drugs.