Introduction
In the summer of 2020, millions of Americans filled the streets to protest the murder of George Floyd and the racial injustices of policing and criminal punishment in the United States. I had recently moved to South Dakota and was preparing to teach criminal law for the first time. As a former public defender, I wanted to give my students the resources to think critically about criminal punishment in a way that my own criminal law education, a little over a decade earlier, had not prepared me to do. Rather than simply ignoring the controversies that were provoking the largest demonstrations in U.S. history, I wanted to equip my students to decide for themselves the extent to which “criminal justice” in the United States was in fact “just,” in light of their own values, whatever those values might be.
For three years, I have done my best to realize these goals. But all too often, doing so has required “teaching against” the casebook I assign to my students, an excellent casebook that reflects the standard approach to teaching criminal law. This Article arises out of my sense that the standard approach is no longer justifiable, if it ever was.
Another feature of the summer of 2020 may provide a helpful analogy. Months into the COVID-19 pandemic, it was increasingly clear that the virus was spreading primarily through airborne transmission. Despite widespread fears early on, there was little evidence of people becoming infected by touching germ-infested surfaces. Yet in the summer of 2020, many businesses continued to publicize their extraordinary efforts to “sanitize” or “deep clean” the surfaces in their facilities. Critics described this obsessive attention to surface cleaning as a form of “hygiene theater,” a series of “risk-reduction rituals that make us feel safer but don’t actually do much to reduce risk.” The term echoed similar criticisms of the TSA’s post-9/11 pat-down procedures, which some observers had ridiculed as “security theater.”
This Article, in essence, argues that the traditional criminal law curriculum can be fairly criticized as a form of training in “justice theater.” It gives students the feeling that they are gaining greater insight into justice, but at the same time systematically deprives them of materials that would obviously be relevant to reaching informed conclusions about justice.
By drawing attention to the ways in which the traditional criminal law curriculum excludes and distorts, the Article also helps to explain what might otherwise seem to be a puzzling incongruity between criminal law education and criminal law practice. Over the last several decades, most law students in the United States have received a mandatory education in criminal law that routinely emphasized critical thinking about justice. Then, the same students have proceeded to participate in the creation and reproduction of a system of racialized mass incarceration that many millions of Americans, including many law students today, perceive as profoundly unjust. Presumably any reader of this Article will already be familiar with the statistics, but among other notable features, in recent years our system of criminal punishment has incarcerated people at a higher rate than any other country in the world. It incarcerates various minority groups, including Black and Indigenous Americans, at even higher rates than Americans in general. The conditions of incarceration are often violently inhumane and degrading. Finally, despite the enormous human and financial costs of incarceration and supervision, public safety from lethal violence in the United States remains worse than in any comparably wealthy country.
How can we make sense of the fact that lawyers who were exposed to debates about justice in their first-year criminal law courses went on to serve as facilitators of a “carceral state” that is so widely perceived today as unjust?
The answer, this Article suggests, is not that students forgot the lessons they learned about justice in criminal law once they entered practice. Rather, the traditional criminal law curriculum encouraged and encourages ways of thinking about criminal justice that facilitate mass incarceration. The indoctrination was presumably never planned. Law professors work in one of the most left-leaning occupations in the United States, and many criminal law professors have become vocal critics of racialized mass incarceration. But to the extent that they have taught criminal law in the way it has usually been taught over the last few decades, law professors have participated, however unwittingly, in the reproduction of a punitive ideology of individual blame and retribution that facilitates the carceral practices many of them now criticize.
Law students who passed through the traditional criminal law curriculum and went on to participate in the development and maintenance of mass incarceration were acting consistently with their legal training. They were realizing a plausible expression of “justice” as they were trained to think of it.
The Argument begins in Part II by offering a brief sketch of the traditional criminal law curriculum. Part III argues that the curriculum described in Part II trains students to think of criminal justice in ways that facilitate mass incarceration. Specifically, Section III.A argues that by introducing the topic of criminal law through the frame of the standard “justifications for punishment,” the traditional criminal law curriculum, among other things, invites students to think of clever and creative ways in which criminal punishments might be justified. Section III.B argues that the way case excerpts are used in the traditional criminal law curriculum promotes a view of crime as the result of decontextualized choices by bad people who generally deserve to be punished.
The looming arrival of the NextGen bar exam provides a rare and welcome occasion for rethinking how criminal law is taught in the United States. Part IV concludes by proposing curricular reforms.
It may be worthwhile to address a possible objection at the outset. Someone might respond to the problems detailed in Part III by proposing a seemingly simple solution. If the traditional criminal law curriculum invites students to discuss and develop their own ideas about justice while systematically depriving them of the materials needed to do so in a well-informed way, and if providing those materials would require thoroughly revising the criminal law curriculum, perhaps (it might be argued) the best path forward would be to exclude discussions of justice from the criminal law curriculum altogether. Perhaps students could simply learn to understand and predict the likely judicial interpretations of criminal statutes, without being asked to consider larger questions of justice. The professor could studiously avoid asking questions that might invite students to reflect upon their own moral intuitions, including questions about whether a case was rightly decided.
One response to this objection might be to defend the importance of law students learning to think critically and for themselves. The response might invoke higher educational or professional ideals, such as the need for lawyers to display good judgment, or the value of lawyers serving as public-spirited leaders rather than mere technicians.
But a more practical criticism could also be offered. A criminal law curriculum that never invited students to consider questions of justice would not prepare those students to work in the criminal legal system as it actually exists, especially as prosecutors. According to the American Bar Association, “[t]he primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict.” Prosecutors will often be forced to make charging decisions or plea offers in contexts where “the law itself” provides no single, clear answer. Prosecutors cannot avoid making discretionary decisions informed by their understandings of justice. In fact, they have a professional obligation to do so. The ABA’s standards state that “[t]he prosecutor is not merely a case-processor but also a problem-solver responsible for considering [the] broad goals of the criminal justice system. The prosecutor should seek to reform and improve the administration of criminal justice . . . .” To remove considerations of justice from the criminal law curriculum would mean depriving students of deliberative tools that a considerable number of them will need to use in their careers.
Finally, to be clear, my aim in this Article is not to prove that the editors of criminal law casebooks, or teachers of criminal law more generally, were responsible for the rise of racially unequal mass incarceration in the United States. Obviously, outcomes in our criminal legal institutions are the product of a wide range of factors, many of them far outside the influence of any law professor. Perhaps one day a scholar will find a collection of data that makes possible a statistical analysis of a relationship between the content of criminal law curricula and subsequent prosecutorial behavior. Perhaps there is even a natural experiment somewhere, waiting to be found, in which criminal law curricula randomly changed in some settings but not in other, comparable settings, and the effects on subsequent prosecutorial behavior, or ideology, can be measured. This Article does not attempt such an analysis. In any case, such an analysis would not show what effect the curricular reforms proposed below might have had, because the proposals have not yet been attempted.
But the absence of a proven causal relationship is not proof of an absent causal relationship. If it is plausible, as this Article argues, that the traditional criminal law curriculum encouraged ways of thinking that facilitated mass incarceration, we should at least factor this risk into our thinking about whether the teaching of criminal law should change.