It’s being reported that Harvard Law Professor William Stuntz died last week at the tragically young age of 52 (see the Times obit here).  I never met Stuntz, but I’ve read and been deeply influenced by much of his writing.  Indeed, I doubt there is any scholar who has had a more profound influence on my generation of criminal procedure professors than Stuntz.  He contributed to a fundamental shift in the scholarly agenda from defining the proper scope of constitutional rights (which preoccupied the generation that came of age during the Warren Court crim pro revolution and the Burger Court counter-revolution) to studying how rights actually work in the real world of plea-bargaining, over-taxed criminal-justice systems, and dysfunctional tough-on-crime politics.  In the real world, he taught us over and over again, the law on the books (whether Supreme Court decisions on constitutional rights or legislative decisions on substantive criminal law) doesn’t necessarily matter much, and well-meaning attempts to improve the law on the books are apt to backfire and produce even worse outcomes than the status quo.

Here are three insights I picked up from Stuntz that have been particularly important to my own work:

• You can be skeptical of the Warren Court rights revolution without having a vicious, or even indifferent, attitude toward the well-being of criminal defendants — indeed, in the real world, new rights may end up harming defendants more than helping them.
• In a system of high sentences, routine plea-bargaining, and judicial unwillingness to second-guess prosecutorial decisions, the preferences of prosecutors may be more important than the legislatively enacted criminal code in determining who is convicted of what and how they are punished.
• Public demand for, and legislative supply of, overbroad criminal laws does not necessarily mean that anyone actually wants these laws to be applied in a literal or indiscriminate fashion; new criminal laws are adopted against a backdrop of broad prosecutorial discretion, and are perhaps best understood as a way of giving new tools to prosecutors rather than as inflexible penal mandates.

Stuntz’s most important article may be The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505 (2001).  I see this article cited all the time, and the notion that criminal-law politics are “pathological” has become almost a truism among scholars.  I would recommend the article to anyone interested in an introduction to the work of this extraordinarily creative and insightful author.