“I think that in no country in the civilized world is less attention paid to philosophy than in the In Adam Gopnik’s article, “The Caging of America”, in the January 30 edition of The New Yorker, Gopnik searches to understand why America locks so many people away in prison. He cites a book published last fall by William J. Stuntz, a professor at Harvard Law School
Hearing that announcement, most Americans would be happy to take issue with Stuntz over a beer at Pfaff's pub. But listen to his reasoning and see if perhaps you might consider agreeing with him.
“In a society where Constitution worship is still a requisite on the 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, which Jefferson, he points out, may have helped shape while his protégé Madison was writing ours.
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 [prison] mess, where accused criminals get laboriously articulated protection against procedural errors and no protection at all against outrageous and obvious violations of simple justice. You can get off if the cops looked in the wrong car with the wrong warrant when they found your joint, but you have no recourse if owning the joint gets you locked up for life. You may be spared the death penalty if you can show a problem with your appointed defender, but it is much harder if there is merely enormous accumulated evidence that you weren’t guilty in the first place and the jury got it wrong. Even clauses that Americans are taught to revere are, Stuntz maintains, are unworthy of reverence: the ban on “cruel and unusual punishment” was designed to protect cruel punishments – flogging and branding – that were not at that time unusual.” – Adam Gopnik, The New Yorker.
