kai erikson noted in the 1960s that deviant forms of conduct seem to derive nourishment from the very agencies devised to inhibit them. can efforts to inhibit inJustice have similarly perverse unintended consequences? a new paper by harvard law professor william stuntz makes the provocative claim that the vigorous pursuit of constitutional rights is partly to blame for mass incarceration. the abstract:

The politics of crime is widely seen as punitive, racist, and inattentive to the interests of criminal suspects and defendants. Constitutional law is widely seen as a (partial) remedy for those ills. But the cure may be causing the disease. At the margin, constitutional law pushes legislative attention – and budget dollars – away from policing and criminal adjudication and toward punishment. The law also widens the gap between the cost of investigating and prosecuting poor defendants and the cost of pursuing rich ones. Overcriminalization, overpunishment, discriminatory policing and prosecution, overfunding of prison construction and underfunding of everything else – these familiar political problems are more the consequences of constitutional regulation than justifications for it.

stultz’s basic argument is that constitutional law creates political “taxes” and “subsidies” that make some kinds of crime control cheap and others more costly. for example, the supreme court aggressively regulates policing and trial procedure, but generally leaves the substantive criminal code and sentencing to the politicians — where they go hog wild expanding the number of laws and raising sentence length. he also argues that prison budgets get a “constitutional subsidy” whereas local police and courts must ante up a “constitutional tax.” here’s a taste of the argument:

Earl Warren and his colleagues did little to expand due process and even less to guarantee “the equal protection of the laws.” Instead, they used the Fourth, Fifth, and Sixth Amendments to ratchet up regulation of state and local criminal processes. That choice had three perverse consequences. First, it made the constitutional law of criminal Justice primarily about criminal procedure. Second, it focused the law’s attention on trial procedure, not on the discretionary processes that actually dispose of most cases.196 Third, the Warren Court’s Bill of Rights-based regulation used constitutional law to protect majoritarian values, not countermajoritarian ones (pp. 47-48).

well, then! stuntz makes clear that he is no proponent of business-as-usual mass incarceration, but he makes a fascinating counter-intuitive proposition: could gideon’s trumpet, earl warren, and the aclu have actually increased the levels and inequalities of punishment in the past generation? or is this simply piling on — another game of “pin the blame upon the liberal?” [realizing, of course, that civil libertarians come in conservative flavors as well]. i’m skeptical of stuntz’s claims, but intrigued by the causal chain he hypothesizes.