Does Constitutional Criminal Procedure Stuntz the Growth of Real Criminal Justice?

Our faculty reading group at Southwestern next week will be discussing Bill Stuntz's new draft paper, "The Political Constitution of Criminal Justice," available here.  It's a typically interesting and beautifully written piece.   Let me offer up a quote from the opening:

"[The relationship between criminal justice and the politics of crime] seems straightforward: politicians ignore the interests of criminal suspects and defendants, so the Supreme Court steps in to protect these interests.  On this view, politics is to constitutional law as a disease is to the medicine that cures it.  [Para.]  America's politics of crime is indeed diseased.  But the metaphor may get causation backward.  The constitutional proceduralism of the 1960s and after probably helped create the harsh justice of the 1970s and after.  Overcriminalization, excessive punishment, racially skewed drug enforcement, overfunding of prisons and underfunding of everything else -- these familiar political problems are as much the consequences of constitutional regulation as the reasons for it.  The medicine is reinforcing the disease."

I'll let the well-qualified criminal law folks fight over the meat of Stuntz's argument.  Let me discuss a point that is related but, I think, orthogonal to Stuntz's piece.  I have long thought it would be interesting to see serious work on 1) the political economy of habeas reform in the 1980s and 9os and 2) the internal and external political economy of law firm pro bono work in capital cases.  Specialization and time constraints prevent me from doing the first piece, though I may yet write for publication (or merely blog) on why large law firms should basically cease doing pro bono work and pay others to be virtuous on their behalf. 

But I think the first issue is worth someone's time and work.  Large law firms doing pro bono work on capital cases long focused on federal habeas litigation.  In so doing, they focused on exactly what you would expect them to focus on: relatively low-cost, low-time, high-prestige work in an area with which they are comfortable -- non-trial-based, procedurally oriented federal litigation.  But were their efforts ultimately valuable to anyone (other than to their own prestige, self-image, and ability to attract associate talent)?  It seems possible, if not likely, to me that they achieved exactly the opposite of their purported goal of properly functioning criminal justice.  By achieving some high-profile successes, and by protracting the length and complexity of post-conviction procedures, they spurred Congress to enact legislation crippling these aspects of the criminal justice system.  So, in the one area in which they had expertise, the big-firm pro bono types succeeded only in hobbling the usefulness and availability of habeas as a remedy for unfair convictions and sentences.  If these firms truly cared about criminal justice, they ought to have spent their resources on 1) state court trials (an area in which they lack any great expertise, although they would still outperform many appointed counsel -- but only if the firms were willing to incur substantial costs in time and money) and 2) lobbying state legislatures for improvements and funding increases for appointed counsel (an area in which many big firms do have expertise, although they would risk undermining lobbying efforts on behalf of other clients).  Another example, perhaps, of the high cost of what purport to be good intentions -- and a reminder that altruism is far from the only motive for pro bono work.