THE CURRICULUM OF THE CARCERAL STATE

This Essay scrutinizes the canons of substantive criminal law, with a particular focus on the curricular canon. By curricular canon, I mean the conceptual model used to teach the subject of criminal law, including the cases, narratives, and ideas that are presented to students. Since the middle of the twentieth century, American law schools have offered (and often required) a course in criminal law in which homicide is the paradigm crime and legality is a core organizing principle. The curricular canon depicts criminal law as a necessary and race-neutral response to grave injuries, and it also depicts criminal law as capable of self-restraint through various internal limiting principles. This model does not correspond closely to actual legal practices, and it never did; it was designed to model what criminal law could become. Though this curricular model was developed by men who wanted to improve and constrain the criminal law, instead it probably contributed to the vast expansion of criminal interventions in the second half of the twentieth century. The Essay reveals the pro-carceral implications of the prevailing canon, and it offers the outline of a different model that could alter American attitudes toward criminal law.

The full text of this Essay can be found by clicking the PDF link to the left.

* Professor of Law, Brooklyn Law School. For helpful feedback and productive disagreements, I am grateful to Rachel Barkow, Bennett Capers, Chad Flanders, Angela Harris, Eric Miller, Jamelia Morgan, Justin Murray, Melissa Murray, Anna Roberts, Steven Schulhofer, Jocelyn Simonson, Jim Whitman, and participants in faculty workshops at New York Law School and Brooklyn Law School. Thanks also to the students in my Criminal Law classes over the past fifteen years, including especially Amanda Chan and Anna Nathanson.

Introduction

For decades, as the American criminal system grew and its racial disparities became impossible to ignore, many have resisted the suggestion that the scale or demographics of the prison population indicate something fundamentally rotten in criminal law itself. For example, former prosecutor and FBI Director James Comey told then-President Obama that the term “mass incarceration” was inaccurate and insulting. 1 James Comey, A Higher Loyalty: Truth, Lies, and Leadership 150 (2018). To Comey, the term was inaccurate because each defendant was treated as an individual, “charged individually, represented individually by counsel, convicted by a court individually, sentenced individually, reviewed on appeal individually, and incarcerated. That added up to a lot of people in jail, but there was nothing ‘mass’ about it.” And the term was insulting, because it “cast as illegitimate the efforts by cops, agents, and prosecutors—joined by the black community—to rescue hard-hit neighborhoods.” 2 See id.

As informed readers were quick to note, Comey’s argument obscured multiple well-documented realities: prosecutors’ broad power to select who will become a criminal, 3 See Darryl K. Brown, Judicial Power to Regulate Plea Bargaining, 57 Wm. & Mary L. Rev. 1225, 1233 (2016) (“Unrestrained charging discretion combined with broad criminal codes and power to define sentencing differentials are the sources of prosecutorial power and leverage in plea bargaining.”). overburdened and underfunded indigent defense counsel who can do very little to alter their clients’ fates, 4 See Mary Sue Backus & Paul Marcus, The Right to Counsel in Criminal Cases, a National Crisis, 57 Hastings L.J. 1031, 1036 (2006) (noting that many defendants do not have access to adequate representation because of underfunding and other problems); Paul D. Butler, Poor People Lose: Gideon and the Critique of Rights, 122 Yale L.J. 2176, 2178 (2013) (arguing that while indigent defense is underfunded, even good lawyers cannot save poor people from a system that is designed to incarcerate them). the fact that almost all convictions are based on guilty pleas rather than a factual determination by a judge or jury, 5 See Lucian E. Dervan & Vanessa A. Edkins, The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem, 103 J. Crim. L. & Criminology 1, 7 (2013) (noting that almost ninety-seven percent of federal convictions are based on guilty pleas). In state courts, about ninety-four percent of felony convictions are based on guilty pleas. See Bureau of Just. Stats., Felony Sentences in State Courts, 2006—Statistical Tables 25 tbl.4.1 (2009), https://www.bjs.gov/content/pub/pdf/fssc06st.pdf [https://perma.cc/XER9-ZB2V]. the circumstances that make these pleas less than “voluntary,” 6 See Dervan & Edkins, supra note 5, at 36–37 (discussing an empirical study of circumstances in which innocent defendants plead guilty to obtain a sentencing benefit); see also John H. Blume & Rebecca K. Helm, The Unexonerated: Factually Innocent Defendants Who Plead Guilty, 100 Cornell L. Rev. 157, 161–62 (2014) (listing features of the American criminal legal system that create “hydraulic pressure” and increase the likelihood that innocent defendants will nonetheless plead guilty). the prevalence of mandatory minimums and other mechanized determinations of sentences, 7 See Andrea Roth, Trial by Machine, 104 Geo. L.J. 1245, 1266–69 (2016). and the limited efficacy of appellate review. 8 See, e.g., Peter Maass, James Comey Told Barack Obama that His Use of the Phrase “Mass Incarceration” Was Insulting to Law Enforcement Officers, Intercept (Apr. 18, 2018), https://theintercept.com/2018/04/18/james-comey-sees-himself-as-a-victim-of-trump-he-refuses-to-see-the-victims-of-the-justice-system [https://perma.cc/BSD3-J62P] (“[O]nly the well-off or the fortunate who obtain lawyers with the resources and the time for aggressive litigation can pursue appeals that have a decent change of overturning a bad verdict.”). Obama himself may have pointed out some of these realities to Comey, and Comey acknowledges that after the conversation, “I was smarter.” 9 Comey, supra note 1, at 151; see also Barack Obama, The President’s Role in Advancing Criminal Justice Reform, 130 Harv. L. Rev. 811, 824–29 (2017) (discussing federal charging practices and prosecutors’ leverage during plea negotiations, made possible by severe sentencing laws); id. at 855 (discussing the need for sentencing reform at the state level).

But in at least one respect, Comey’s original formulation captured something important about the vast expansion of criminal interventions now labeled mass incarceration. Individual law enforcers such as Comey himself—“cops, agents, and prosecutors”—had to decide to pursue each of the millions of criminal convictions necessary to imprison nearly one percent of adult Americans. 10 See Katherine Beckett, Mass Incarceration and Its Discontents, 47 Contemp. Socio. 11, 11 (2018) (noting that the U.S. incarceration rate reached almost one in one hundred in 2007, and also noting increases in the number of persons on probation or parole, booked in jail, or living with a criminal record). Mass incarceration, or “a lot of people in jail,” is about individuals, in that it requires a great many individuals who are willing to put a still larger number of other individuals behind bars. The passage from Comey’s memoir suggests a reason that so many state officials were willing to pursue convictions and prison sentences: They saw their work as a worthy effort to “rescue hard-hit neighborhoods” and otherwise improve social well-being, and importantly, they saw this work as a law-bound, legitimate effort. 11 See Comey, supra note 1, at 150. In the minds of the human agents of the carceral state, law—rather than raw power or discretion—defines what is criminal, and the due process of law ensures the fair treatment of each individual defendant. To get to mass incarceration, we needed a way of thinking about criminal law that would mean that in each individual case—for millions of individual cases—prosecution and punishment seemed like a good idea.

This Essay is about the relationship between individual actions and aggregate phenomena, and the relationship between ideas and practices. It explores a particular understanding of criminal law that gives meaning and legitimacy to the extensive work that mass incarceration requires. This model posits criminal law as a necessary response to deeply harmful and wrongful actions. The model recognizes the substantial burden of criminal interventions but holds that such interventions occur only within the bounds of carefully drawn legal constraints, such as a stringent burden of proof. 12 I have used the phrase “criminal law exceptionalism” to describe this model, since it combines the claim that criminal law imposes exceptional burdens with the claim that criminal law addresses exceptionally harmful or wrongful conduct and operates through exceptionally careful procedures. See Alice Ristroph, An Intellectual History of Mass Incarceration, 60 B.C. L. Rev. 1949, 1952–54 (2019) [hereinafter Ristroph, Intellectual History]; see also infra Part I. Importantly, the model envisions criminal law as neutral and egalitarian, imposing its burdens without reference to race, class, or gender. Many aspects of this model bear little relation to actual legal practices—hence the criticism from Comey’s most knowledgeable readers. But as a mindset and normative ideal, the model is nonetheless familiar. It is the canonical account that American legal education has delivered to students for several decades through a course in “substantive criminal law,” usually as part of the required first-year curriculum. Nearly every lawyer in the country, and thus nearly every prosecutor, defense attorney, and judge, has been taught these basic canons of criminal law: Defendants are initially presumed innocent; criminal charges must be based on a clear and preexisting statute; the state bears the burden of proving violation of said statute beyond a reasonable doubt. Moreover, future lawyers are taught that crime definitions follow a certain logical structure: mens rea (mental state) plus actus reus (action). And they are taught that the specific acts defined as criminal—the substance of criminal law—are those that inflict grave injuries upon individuals and society at large. In the American legal curriculum, homicide is the paradigm crime: a terrible act that demands punishment, but punishment by law, imposed only after careful investigation, application of the right legal definitions, presentation of adequate evidence concerning both act and mental state, and in most cases, appellate review. 13 See infra section II.C.

This set of claims is so familiar to American lawyers that one may forget, as Comey apparently did, that the model does not describe present practices. Even once the gaps between the curricular framework and actual practice are pointed out, it may be tempting to conclude that the canonical model of criminal law was once roughly accurate, and then somehow, practices veered off-course and criminal law went “off the rails.” 14 William J. Stuntz, The Collapse of American Criminal Justice 5 (2011) [hereinafter Stuntz, Collapse]. That suggestion works only so long as we don’t actually study history. If we do look closely at criminal law’s past, it becomes clear that the curricular model of criminal law never described actual practices. Criminal law in America has always been rife with discretion, has always reached non-injurious and often petty conduct, and has rarely demanded rigorous proof before a jury or offered extensive appellate review. 15 See Ristroph, Intellectual History, supra note 12, at 1956–71 (providing an overview of the breadth of criminal law, scope of enforcement discretion, and rarity of jury trials throughout American history).

The canonical model is not a portrait of a lost past, but rather a normative vision that was developed in the mid-twentieth century as part of an effort to win respect for criminal law within legal academia. 16 See infra Part I. The founders of the criminal law canon had broader goals as well: They worried about the irrationalities and overreach of criminal law, and they hoped to develop the model of an ideal criminal code. Indeed, Herbert Wechsler, one of the primary architects of the framework that still structures substantive criminal law courses, was also the primary architect of the Model Penal Code (MPC). 17 See infra Part I. A noted scholar of constitutional law as well as a criminal law expert, Wechsler was a champion of “neutral principles,” albeit with a specific conception of neutrality. 18 See Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1, 29–34 (1959) [hereinafter Wechsler, Neutral Principles] (expressing concern that some of the Supreme Court’s racial equality opinions, including Shelley v. Kraemer and Brown v. Board of Education, were not adequately supported by “neutral principles”). The canons of substantive criminal law, as developed by Wechsler and his contemporaries and as tweaked by later scholars, are purportedly color-blind, depicting an egalitarian system that imposes obligations without reference to race. Of course, American criminal law is today rife with racial disparities, which brings us again to this Essay’s inquiry into the relationship between ideas and practices. What is the relationship between our curricular model and our present criminal law reality? Did scholars articulate a noble vision that policymakers and practitioners simply ignored? Or did the vision of substantive criminal law crafted at midcentury help enable the racialized expansion of American criminal law?

I suggest that American law schools, through the required course on substantive criminal law, have contributed affirmatively to the collection of phenomena commonly labeled mass incarceration. 19 Two questions have arisen about the term “mass incarceration,” one about prison and one about race. The term first became widely used among criminal law specialists to refer to the exponential growth in American prisoners—those actually held in custody in jail or prison—in the last three decades of the twentieth century. Increasingly, however, commentators have emphasized the expansion of criminal law in many forms, including tremendous growth in the number of persons with convictions who are not necessarily held in jail or prison but who are subject to other legal burdens. See Michelle Alexander, The New Jim Crow 15–16 (10th anniversary ed. 2020) (defining mass incarceration to include not only the entire criminal justice system but also “the larger web of laws, rules, policies, and customs that control those labeled criminals both in and out of prison”). Another question concerns how to distinguish between the overall expansion of criminal interventions, which has increased convictions across all racial groups—albeit at varying rates—and the specific impact on persons of color, especially Black Americans. Some have argued that the term “hyper-incarceration” better captures the racialized aspect of the increase in prisoners and convictions. See, e.g., Loïc Wacquant, Forum, in Race, Incarceration, and American Values 57, 59 (Glenn C. Loury ed., 2008). This Essay seeks to analyze, but also to keep distinct, all of these phenomena—the overall expansion of the prison population, the overall expansion of non-custodial interventions, and the significant racial disparities that have characterized both expansions. They do so by telling a particular story about criminal law as limited in scope, careful in its operation, and uniquely morally necessary. The story has always been fiction, but it is presented as fact. Students educated in this model learn to trust and embrace criminal law, and thus law schools have helped to facilitate a carceral state by supplying it with willing agents, and more specifically, willing lawyers. Importantly, law schools have continued to tell basically the same story even as American prison populations exploded and racial disparities in that population became impossible to ignore. 20 The American prison population began to grow significantly in the 1970s, but widespread recognition of “mass incarceration” did not occur until the early 2000s. See Marie Gottschalk, Caught: The Prison State and the Lockdown of American Politics 1, 16 fig.1.3 (2015) [hereinafter Gottschalk, The Prison State] (showing incarceration rates over time and noting that fifteen years before the book’s publication, “mass imprisonment was largely an invisible issue”). Racial disparities in the prison population were present throughout the expansion but worsened over time. See Michael Tonry, Malign Neglect—Race, Crime, and Punishment in America 28–29 (1995) (providing statistics on racial disparities and noting that the disparities have increased over time). Curricular attempts to address racialized mass incarceration have been additive rather than transformational, by which I mean academics have sought to supplement the traditional canon rather than reexamine it. 21 See infra section II.D. At best, this approach has been ineffective, failing to counter the pro-carceral themes that are embedded in most of the traditional material. At worst, the additive approach could be affirmatively harmful: By mentioning racial disparities among those convicted and punished, while simultaneously emphasizing the legitimacy and neutrality of substantive criminal law, law schools may inadvertently reinforce conceptions of Black criminality.

My aim is not to provide an overarching account of mass incarceration. It is a complex social and political phenomenon, and its causes and necessary conditions are many and difficult to untangle. I want simply to highlight one piece of the puzzle that has so far received relatively little attention. Mass incarceration is also a legal phenomenon, and the role of the legal profession needs scrutiny. Unless we are to characterize the legal profession as unthinking or malevolent, we need an account of why so many lawyers have chosen and still choose to pursue convictions and prison sentences on such a massive scale. This Essay explores that question and suggests that law schools bear more responsibility for mass incarceration than we have so far acknowledged. Recognizing this responsibility makes evident the likely costs of complacency: By continuing to rely on the same canonical model of criminal law, we are likely to preserve the carceral state.

To develop this argument, I scrutinize the canons of criminal law, with a particular focus on what I will call the curricular canon. 22 See J.M. Balkin & Sanford Levinson, The Canons of Constitutional Law, 111 Harv. L. Rev. 963, 975 (1998) (“[W]e may find a wide divergence between what professors of law teach and what they write about.”); cf. id. at 975–76 (distinguishing between the “pedagogical canon,” the “cultural literacy canon,” and the “academic theory canon,” and noting that for constitutional law the content of each may be slightly different). I use this phrase to refer to the conceptual model used to teach criminal law, including the principal claims and narratives that are used to explain the field. 23 Jill Hasday’s definition, from her work on the family law canon, is helpful: “By ‘canon,’ I mean the dominant narratives, stories, examples, and ideas that judges, lawmakers, and (to a less crucial extent) commentators repeatedly invoke to describe and explain family law and its governing principles.” Jill Elaine Hasday, Family Law Reimagined 2 (2014). Elsewhere, I have begun to develop a broader intellectual history of mass incarceration, one that addresses legal education but extends beyond it. 24 See Ristroph, Intellectual History, supra note 12, at 1952 (“[T]o figure out where we might want criminal law to go, we need a better understanding of where we have been and where we are now.”). But a more focused and detailed analysis of teaching materials seems especially urgent now. First, the May 2020 killing of George Floyd by police officers 25 See Jordan Culver, What We Know About the Death of George Floyd: 4 Minneapolis Police Officers Fired After ‘Horrifying’ Video Hits Social Media, USA Today (May 26, 2020), https://www.usatoday.com/story/news/nation/2020/05/26/george-floyd-minneapolis-police-officers-fired-after-public-backlash/5263193002 [https://perma.cc/E3XX-TXPA] (last updated May 27, 2020). has invigorated movements for both criminal law reform and racial justice more broadly, and these movements are rightfully challenging the presumption of legitimacy that criminal law and law enforcement have long enjoyed. 26 See, e.g., Mariame Kaba, Yes, We Mean Literally Abolish the Police, N.Y. Times (June 12, 2020), https://www.nytimes.com/2020/06/12/opinion/sunday/floyd-abolish-defund-police.html (on file with the Columbia Law Review) (“[M]any cannot imagine anything other than prisons and the police as solutions to violence and harm. People like me who want to abolish prisons and police, however, have a vision of a different society, built on cooperation instead of individualism, on mutual aid instead of self-preservation.”). At this moment, more than ever, we need an honest account of criminal law and an accurate understanding of the sources of its racial disparities. Second, the disruptions to legal education caused by the COVID-19 pandemic create challenges for law faculty, but also oppor-tunities. A shift to greater reliance on online resources or remote teaching means that many law schools are now developing the next generation of teaching materials. 27 See Nina A. Kohn, Teaching Law Online: A Guide for Faculty, 69 J. Legal Educ. (forthcoming 2020) (manuscript at 19), https://ssrn.com/abstract=3648536 (on file with the Columbia Law Review) (“[T]he educational crisis precipitated by the COVID-19 pan-demic has presented an opportunity for academics to rethink how they teach and to experiment with new teaching techniques that may be better suited to achieving desired learning outcomes.”). Overwhelmed by unavoidable changes in the form of the course, some educators are likely to be averse to rethinking substance. But to reproduce the same pro-carceral criminal law curriculum in a new medium would be to entrench the carceral state, and its inequalities, still further. The pandemic has highlighted and magnified inequalities; 28 See, e.g., Richard A. Oppel Jr., Robert Gebeloff, K.K. Rebecca Lai, Will Wright & Mitch Smith, The Fullest Look Yet at the Racial Inequity of Coronavirus, N.Y. Times (July 5, 2020), https://www.nytimes.com/interactive/2020/07/05/us/coronavirus-latinos-african-americans-cdc-data.html (on file with the Columbia Law Review) (illustrating the effects of COVID-19 on different racial groups). it also creates an opportunity for legal academics to revisit and revise their own participation in the perpetuation of inequality.

My argument focuses on the content of the course and is fairly agnostic among teaching methods. 29 That said, some course content is driven by the “case method,” as section II.B discusses. But with regard to both teaching method and curricular content, American legal education has been notoriously path-dependent and hard to change since the late nineteenth century. 30 See, e.g., Elliott E. Cheatham, Legal Education—Some Predictions, 26 Tex. L. Rev. 174, 180 (1947) (“[L]egal education has made no comparable progress. We are, for the most part, adhering in 1947 to a method first developed over seventy years ago.”); see also Edward Rubin, What’s Wrong with Langdell’s Method, and What to Do About It, 60 Vand. L. Rev. 609, 613–15 (2007) (“Nearly one hundred years have passed since 1914, of course, and we still rely on Langdell’s substantive innovations.”). It is also better designed to reproduce hierarchies, or ideologies, than to challenge them. 31 See Duncan Kennedy, Legal Education and the Reproduction of Hierarchy, 32 J. Legal Educ. 591, 591 (1982) (claiming that law schools provide “ideological training for willing service in the hierarchies of the corporate welfare state”). Some teachers and scholars of criminal law will resist the suggestion that the academic depiction of substantive criminal law is deeply flawed. If I cannot persuade these thinkers to change their minds, I can at least issue them a clear challenge. Given the gaps between criminal law’s actual operation and its curricular representation, those who defend or continue to use the existing curriculum need to justify their model. 32 And in particular, teachers who are also scholars should ask whether they depict criminal law differently in their scholarship and in their classrooms, and, if so, why. It is probably impossible for education to be neutral, but that is all the more reason to try to identify and scrutinize the particular ideologies that shape teachers’ choices.

The structure of this Essay follows my dual aims to destabilize the current curricular model and to move toward something better. Part I begins the work of destabilization with a short history of American criminal law teaching. Two claims are key here: First, the vision of “substantive criminal law” now promulgated to most first-year law students was developed about eighty years ago as part of an effort to win more respect for criminal law in the academy and in the profession. Second, this vision was a normative one that never corresponded very closely to actual legal practices. Part II examines the content of contemporary first-year criminal law courses in more detail to identify several subtly pro-carceral messages that inculcate a view of criminal law as morally and practically necessary, fair and color-blind, and disciplined by internal limiting principles. Part III asks whether curriculum matters and offers reasons to think that the way we teach criminal law does affect legal practice, though not necessarily in the ways that teachers intend. Part IV outlines a different explanatory model of the laws that define conduct, and people, as criminal. It is only an outline; developing a new paradigm requires more space than one Essay affords. 33 A new curricular paradigm for criminal law is also likely to be a collective project rather than a solo endeavor. In the hope of contributing to a collective rethinking, I have developed various aspects of an alternative account in several earlier works. See Alice Ristroph, Criminal Law as Public Ordering, 70 U. Toronto L.J. 64, 64 (2020) (reconceptualizing order in the criminal law paradigm as an ongoing activity to provide leverage for critiques of criminal law practices); Alice Ristroph, Criminal Law for Humans, in Hobbes and the Law 97, 117 (David Dyzenhaus & Thomas Poole eds., 2012) [hereinafter Ristroph, Criminal Law for Humans] (emphasizing criminal law as a human practice); Alice Ristroph, The Definitive Article, 68 U. Toronto L.J. 140, 140 (2018) [hereinafter Ristroph, Definitive Article] (exploring the contingent, constructed character of criminal law, and critiquing efforts to draw a sharp line between substantive and procedural criminal law); Ristroph, Intellectual History, supra note 12, at 2009–10 (“The everyday work of criminal law is a series of enforcement decisions . . . and the outcomes of these decisions are often unpredictable.”); Alice Ristroph, Responsibility for the Criminal Law, in Philosophical Foundations of Criminal Law 107, 109 (R.A. Duff & Stuart P. Green eds., 2011) [hereinafter Ristroph, Responsibility for the Criminal Law] (“The claim is that the state designated this act as a crime and chose to prosecute and punish it. For these public acts, there is collective responsibility. That responsibility should be part and parcel of any theory of criminal responsibility.”); Alice Ristroph, The Thin Blue Line from Crime to Punishment, 108 J. Crim. L. & Criminology 305, 306 (2018) [hereinafter Ristroph, Thin Blue Line] (contending that a complete account of criminal law must address enforcement mechanisms); see also infra Part IV. But the project must be launched. A different criminal law canon will enable professors to teach a more realistic course, one that better depicts the actual operation of criminal law and one that leaves students better equipped to reject carceral ideology if they so choose. And beyond the classroom, both in and beyond the legal profession, a better understanding of criminal law may enable real change in American penal practices. Toward that end, a Conclusion offers a few thoughts on the relationship between legal thought and legal practices.