They continue: “Prosecutors now decide whom to punish and how severely. Almost no one accused of a crime will ever face a jury. Inconsistent policing, rampant plea bargaining, overcrowded courtrooms, and ever more draconian sentencing have produced a gigantic prison population, with black citizens the primary defendants and victims of crime. In this passionately argued book, the leading criminal law scholar of his generation looks to history for the roots of these problems — and for their solutions.” 

They summarize Stuntz’s historical argument like this: “The liberal Warren Supreme Court’s emphasis on procedures, not equity, joined hands with conservative insistence on severe punishment to create a system that is both harsh and ineffective.”

In America, we have become very good at a kind of criminal procedure of vengeance. That is to say, within our legal discourse and our public discourse we have no difficultly using the moral vocabulary of punishment and vengeance and retribution. We have no problem passing moral judgment on those arrested and convicted and sentenced to crimes. Of course the moral language of punishment is necessary and appropriate in any system of justice, even if it hides in all our legal jargon and procedures.

The problem is that in the world of criminal justice that we live with now, that Stuntz outlines and that I see teaching in Maryland’s prisons, we simply have no room for any other moral language—the moral language of rehabilitation, redemption, forgiveness or penitence. To invoke such concepts, and more, to ask that they find a place in our concrete institutions of punishment (like in meaningful educational opportunities while incarcerated, genuine opportunities after serving one’s time, adequate drug treatment, among other things) is to be seen as “soft on crime,” a naive bleeding-heart, a fool in punitive America.

But without the ideas of rehabilitation and redemption and forgiveness, punishment ceases to have much meaning or moral value. We simply punish for its own sake. Our courts and prisons simply become human warehouses with ever-decreasing deterrent value and inexorable growth.

Moreover, despite being the only Western country to still use the death penalty and the only country where life sentences without the possibility of parole are regularly handed out, the reality is that 95 percent of those we punish by sending them to prison come back to society. Americans simply don’t have much conceptual apparatus for even understanding what a man or woman becomes when they have done their time, have completed their sentence. Are they “rehabilitated?”” Redeemed?” “Forgiven?”

Read the whole article.