Criminal Justice in Divided America

By David A. Sklansky

Harvard University Press 2025

Ordinarily, a book’s release date is just a matter of behind-the-scenes logistics mixed with various random elements that have no bearing on the book itself or its critical reception. But every so often, the underlying presumptions that guide a book through the months of its writing, proofing, and printing suddenly fail it once the finished book enters the world. An author conducts dozens of interviews and scrutinizes thousands of hours of game footage while writing a glowing biography of an up-and-coming football star, and then fifteen dead co-eds are found in shallow graves in the star’s back yard. A reporter works for months pulling together interviews with a rising star in national politics, and just as the book is coming to market, the rising star is filmed taking drugs in the audience of his kid’s elementary school pageant. These things can happen.

David Sklansky, a law professor at Stanford Law School and former assistant US attorney, wrote his new book Criminal Justice in Divided America, clearly wanting to throw a spotlight on fundamental problems with crime and punishment in the US. “American criminal justice is in crisis,” as he puts it. “It doesn’t do nearly enough to prevent crime, and it doesn’t deliver nearly enough justice.”

He focuses on four elements of that system: policing, prosecution, adjudication, and punishment, writing with authority and easy readability about over-aggressive police, blind, momentum-driven sentencing, and particularly expanded, unaccountable powers in the hands of prosecutors. Sklansky examines these subjects with a very sure combination of experience and reformer’s zeal. The problem is timing.

(Well, timing and a bit of credulity on the author’s part. At one point in his discussion about changing US prison sentencing systems to be more humane and more genuinely reforming, for instance, he mentions the First Step Act signed by President Trump in 2018, which “expanded good time credits and compassionate release programs for federal prisoners, in addition to rolling back some mandatory minimum sentences”— as though these things were the reasons Trump signed the law. They weren’t. Trump doesn’t care about compassion for federal prisoners. Trump called for the execution of the so-called Central Park 5 even after they were exonerated by DNA evidence and the actual guilty party confessed. Trump still thinks the Central Park 5, now free men, should be executed. He signed the First Step Act solely with the idea that it might help him personally if he were ever sentenced to prison.) (This was before the US Supreme Court’s invention of “presidential immunity” rendered such punishment legally impossible.)

“If democracy is understood as democratic pluralism, and if, as this book has suggested, democracy in the United States is imperiled today chiefly by polarization and exclusionary forms of populism, there is a strong and straightforward argument that the clemency power should be bureaucratized and de-personalized,” Sklanksy writes. “We need more protections against abuses of the clemency power …” In connection with this subject of clemency power, he mentions that during the race for the 2024 Republican nomination, Trump repeatedly promised (Sklansky says “suggested”) he would pardon the insurrectionists who attacked the Capitol on January 6, 2021. On January 20, 2025, Trump did exactly that, granting clemency to over 1500 people convicted in connection with the attack on the Capitol, including domestic terrorists and armed seditionists, people indisputably guilty of violent crimes, who are now free to recruit thousands of new troops on the self-evident promise of Trump’s protection.

While he was writing his book, Sklansky couldn’t have known that any of this would happen. Nowhere in these pages is there even the faintest hint of naivete or willful blindness. But a quirk of timing has turned his book into a careful and thoughtful analysis of problems in a legal system that largely no longer exists, one whose foundation has been fundamentally shifted. When a multiply-convicted felon, protected by the legal fiction of “presidential immunity,” can free a small army of insurrectionists who acted in a coup attempt he himself orchestrated, the intricacies of prosecutorial overreach in the local district attorney’s office seem about as relevant as traffic regulations in Weimar Republic.

Future historians interested in the problems experienced in the rule of law during pre-2025 America might consult Sklansky’s book with profit, since analysis doesn’t get much more clear-eyed than this. Those future historians probably won’t mind that the book was already an anachronistic curiosity by the day of its release

Steve Donoghue is a founding editor of Open Letters Monthly. His book criticism has appeared in The Washington Post, The American Conservative, The Spectator, The Wall Street Journal, The National, and the Daily Star. He has written regularly for The Boston Globe, the Vineyard Gazette, and the Christian Science Monitor and is the Books editor of Georgia’s Big Canoe News