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.
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.”
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,
overburdened and underfunded indigent defense counsel who can do very little to alter their clients’ fates,
the fact that almost all convictions are based on guilty pleas rather than a factual determination by a judge or jury,
the circumstances that make these pleas less than “voluntary,”
the prevalence of mandatory minimums and other mechanized determinations of sentences,
and the limited efficacy of appellate review.
Obama himself may have pointed out some of these realities to Comey, and Comey acknowledges that after the conversation, “I was smarter.”
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.
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.
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.
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.
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.”
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.
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.
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).
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.
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.
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.
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.
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.
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.
Elsewhere, I have begun to develop a broader intellectual history of mass incarceration, one that addresses legal education but extends beyond it.
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
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.
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.
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;
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.
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.
It is also better designed to reproduce hierarchies, or ideologies, than to challenge them.
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.
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.
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.