An Endlessly Inquisitive Mind
Paul G. Mahoney
This issue of the UVA Lawyer focuses on criminal law and procedure. We were inspired to do so as a tribute to former UVA Law professor William J. Stuntz ’84, who touched so many members of our community before his untimely death last spring.
Many people close to Bill—classmates, friends, students, members of his church, and members of our faculty and the faculty at Harvard Law School, where he taught for the last several years of his life—have spoken and written movingly about his kindness, decency, and humility and the deep Christian faith from which they proceeded. Bill’s scholarly personality was every bit as attractive. He was endlessly inquisitive and willing to look at an issue from multiple angles before reaching a conclusion. He thought deeply but also broadly, drawing insights from criminology, economics, history, and other fields to understand the structure of criminal law and procedure. Moreover, he was a profoundly generous scholar who was willing to spend hours helping others think through a problem in their own research.
Bill was not the type to claim to have a Theory of Everything, but there was one theme that ran through all his scholarship: the incoherence of Constitutional doctrines that regulate in minute detail the procedures by which police investigate crime, but put little or no limits on prosecutors’ charging decisions or legislators’ definitions of and sanctions for crimes. The result is a system that pays meticulous attention to the procedural rights of the accused while relentlessly expanding the scope of criminal liability to the point where the boundaries between innocent and criminal conduct are indistinct. The result, in Bill’s view, is suboptimal both from a procedural and a substantive perspective.
The articles in this issue illustrate the explanatory power of Bill’s insights. He pointed out that the boundary between acceptable and criminal conduct was increasingly being drawn not by the formal lawmaking process, but by on-the-fly decisions of prosecutors and police.
To those who undertake heavily regulated activities, this has become a fundamental fact of life. Lawyers representing clients in finance or other regulated industries in criminal prosecutions sometimes note that their job is less to persuade the prosecutor that the client’s conduct did not violate a regulation as it is to persuade the prosecutor that the conduct was not morally blameworthy.
Bill was also deeply concerned that the procedural revolution in criminal law had decreased, rather than increased, the accuracy of criminal adjudication. He worried that as judges inserted themselves more and more forcefully into the process by which evidence was gathered, they were largely abandoning any inquiry into the quality and sufficiency of that evidence. The recent identification of murder convictions called into substantial doubt by subsequent DNA testing of physical evidence did not surprise Bill.
Bill’s view that legislatures and courts had ceded excessive discretion to police and prosecutors did not stem from an instinctive distrust of them—quite the contrary. Bill had a deep respect for the professionalism and integrity of law enforcement professionals. He participated in training programs for them and encouraged students to consider careers as prosecutors. But this did not stop him from having grave concerns about the structure of the system within which they operate.
We asked several of our graduates and professors to share their perspectives on these structural issues. We hear on the prosecution side from Rick Moore ’80, Assistant Commonwealth’s Attorney for Orange County, Virginia (and head of the Law School’s Prosecution Clinic); Zane Memeger ’91, U.S. Attorney for the Eastern District of Pennsylvania; and Doug Gansler ’89, Attorney General of Maryland. From the criminal defense side we have Catherine Scott Bernard ’07, a public defender in Georgia; Professor Brandon Garrett, who has written extensively on wrongful conviction; Professors Deirdre Enright ’92 and Matt Engle from the Law School’s Innocence Project Clinic; and Professor Darryl Brown ’90, who was a public defender before becoming a professor of criminal law. The issue also includes pieces by two scholars who were Bill’s students and close friends: Professor David Skeel ’87 of the University of Pennsylvania Law School and our own Professor Barbara Armacost ’89. I hope you find ample food for thought in these pages.