No. 2 : Criminal Law

1024px-USGS_Rikers_Island
Rikers Island, U.S. Geological Survey (Mar 2006)

This guide is our attempt to detail some ways to broaden and deepen the discourse in the classroom when teaching first-year Criminal Law. Some of these methods require rethinking the traditional 1L canon; others involve shifting how we teach traditional subjects; and some are overarching approaches to questioning our sources of expertise and articulations of legal doctrine. Take these as suggestions or provocations–mold, shift, and adapt as you see fit–and send us your thoughts, criticisms, additions, deletions, and feedback.

Methods

  1. Frame the course in terms of contemporary debates on policing, mass incarceration, and the crisis #BlackLivesMatter has created for criminal law. Centering these debates allows students to probe the core questions of the legitimacy and the function of the criminal justice system.
  1. Alongside the theories of punishment that are traditionally taught at the beginning of the Criminal Law course:
    • Introduce abolition. Incarceration has become the prevailing and most public aspect of criminal punishment. Abolition provides a framework through which to question the core assumptions about the relationship between incarceration, retribution, and utilitarianism, and to take seriously the scale of human devastation wrought by incarceration. For this, see the McLeod, Angela Davis, or Turner & Travis sources below.
    • Study the historical connections between mass incarceration as an evolved extension of chattel slavery, Jim Crow, and convict leasing. For this, see the Alexander and Blackmon sources below.
    • Study the political connections between the decline of the social welfare state and the rise of mass incarceration. For this, see the Wacquant and Hinton sources below.
    • Study the relationship between crime and poverty, including thinking about why people commit property crimes in the first place. See Gottschalk and NRC sources below.
    • Study the idea that criminal law is a tool of social control. Put this idea in conversations with the theories of punishment as a way to complicate the narrative around the possible purposes of criminal law. For this, see the Parenti and Feeley & Simon sources below.
  1. Bring in local organizers and movement folks to talk about their work on policing and mass incarceration. Look for the kind of work that will open up new types of conversations: an organization dedicated to ending mass incarceration, or one that fights policing alongside gentrification.
  1. Bring in the voices and experiences of those directly impacted by the criminal justice system: those arrested, prosecuted, incarcerated. This can be done by bringing in someone you know, or by showing films, YouTube clips, or written testimonials. For short online video testimonials, see the Vera “Bail Stories” or the Glenn Martin & Lashonia Etheridge-Bey videos from The Prison Dilemma.
  1. Talk about race, gender, and class as important dimensions of criminal justice that must be named, understood, and debated. Tell the students these conversations might be uncomfortable but they are too important to avoid.
  1. Take students to local criminal court to observe for a few hours. Beforehand, provide materials to prepare them with context— for example, the Kohler-Hausmann, Feeley, or Peggy Davis sources below. Afterwards, provide a debrief opportunity: ask how the trip added to or complicated their understanding of criminal law and the function of punishment.
  1. Take students to a nearby jail or prison for a tour. Beforehand, provide materials to prepare them with context—for example, the McLeod source includes a section on the dehumanization implicit in incarceration. Afterwards, provide a debrief opportunity: ask how the trip added to or complicated their understanding of criminal law and the function of punishment.
  1. Show documentaries that provide a larger frame for the problems with criminal justice—say, for example, The House I Live in, a documentary about the War on Drugs. Provide opportunities to discuss.
  1. Assign narrative texts on the criminal justice system—for example, the Stevenson source—and discuss the texts in class. Ask the students how the texts added to or complicated their understanding of criminal law and the function of punishment.
  1. Think about shortening or eliminating some traditional areas of the course and replace them with criminal law subjects that more directly affect the lives of more people, including our students themselves:
    • Teach misdemeanors. The vast majority of traditional materials are focused on felonies and major crimes. This overlooks the way that misdemeanors fuel much of criminal law and criminal justice. See, for example, the Natapoff article and the Ferguson Report.
    • Teach drug laws. Most traditional criminal law materials focus on violent crime, overlooking the important role of drug crimes in the criminal justice system. Drug crimes bring up important issues of mens rea and equal protection, and can relate to other areas of the course. Studying drug crimes also raises questions of about the discretion and bias inherent in ideas about criminality, as many of our students will have tried or grown up around drugs. Alexander’s book provides useful background here.
    • Dedicate at least one full class to police violence. The self-defense unit is an easy place to discuss the epidemic of police killings of Black people. News reports or materials like the #SayHerName report by the African American Policy Forum will facilitate a discussion of the issue writ large. Or you could get into particulars by examining a local or high-profile case of a police killing of a Black person and the response by the criminal justice system: was the police officer investigated and by whom? Charged or not? Found guilty or not? Sentenced how? Ask the students to articulate the critique out of the Black-youth movement, or embodied by the Ferguson and Baltimore rebellions, of the criminal justice system that emerge from these police killings. Consider the tension between advocating for eliminating mass incarceration and calling for the incarceration of police officers.
    • Teach rape, being mindful of the examples of rape in your materials. Consider, for example, teaching a case about rape in prison, or about rape in the context of marriage or a relationship. The discomfort students have with the questions raised by the criminal prosecution of rape can open up the same questions for other doctrine. E.g., who gets blamed, how and why, burdens of proof, the assumptions we make about criminality and the propriety of criminal punishment in response. For a view of the gendered nature of rape, and the ignoring of prison rape, see the Capers article.
  1. Study prosecutorial power and discretion. Discuss the allocation of power and resources between prosecutors, defenders, and defendants themselves.   Invite prosecutors and defense attorneys as guest speakers and encourage students to ask them hard questions.
  1. Study plea bargaining so that students recognize that we have a system of pleas, not trials. Think about developing a realistic plea bargaining simulation that put students in role, in which prosecutors have more information and power (as they do in real life).
  1. Bring in collective understandings and reimaginings of the law on the ground–e.g., study Marissa Alexander and the movement to recognize and critique the racial and gendered understandings of Stand Your Ground and self defense. Students might contrast the trial court ruling denying Marissa Alexander’s motion for immunity under Florida’s Stand Your Ground law (State v. Alexander, 2011 WL 11709351 (Fla.Cir.Ct. 2011), with activist accounts of the facts of the case and with the vision of the Southern Movement Assembly that emerged from organizing around the Alexander case.
  1. Bring current articles, news, tweets, and actions into the class when they relate to things the class has been learning about. For example, trending on Twitter the day that we write this is the photograph of activist DeRay McKesson, arrested for the misdemeanor of “Simple Obstruction of a Highway of Commerce.” The complaint is also available online, leaving room for discussions about any number of issues: statutory interpretation, vagueness, notice, probable cause, misdemeanors, police and prosecutorial discretion, and of course, race, class, and power.
  1. Think critically every day about how to discuss the cases that you teach. If you study Morales to learn about vagueness doctrine, recognize that even though the opinion does not mention race, race is a critical component of the arguments on either side of the issue (see Dorothy Roberts resource below). If you study Williams to learn about manslaughter, also learn about the history of the state taking away the children of Native-Americans (something that 8 years after Williams the Indian Child Welfare Act was passed to remedy). Every case is more than the excerpt in the casebook.
  1. Throughout all of this, center your humanity and humility and curiosity, and encourage the students to do the same. Encourage students to recognize that their own personal life experiences influence how they read cases and interpret doctrine; model this by recognizing and naming in class the ways in which our backgrounds and experiences affect how we think and how we teach. Be open to critique – of you, of your students, of the system, of the cases. Be open to defenses of those things as well. Class can be uncomfortable and inspiring at the same time.

Resources

    1. Allegra McLeod, Prison Abolition and Grounded Justice, 62 UCLA L. Rev. 1156 (2015)
    2. Angela Davis, Are Prisons Obsolete? (2003) [available here]
    3. Catharine A. MacKinnon, Feminism, Marxism, Method, and the State: An Agenda for Theory, 7 Signs 515 (1982)
    4. Malcolm Feeley, the Process is the Punishment (1992) [excerpt here]
    5. Alexandra Natapoff, Misdemeanors, 85 Southern California L. Rev. (2012)
    6. Dorothy E. Roberts, Foreword: Race, Vagueness, and the Social Meaning of Order-Maintenance Policing, 89 J. Crim L. & Criminology 775, 776–77 (1999)
    7. Bryan Stevenson, Just Mercy: A Story of Justice and Redemption (2015) [excerpt here]
    8. Issa Kohler-Hausmann, Managerial Justice and Mass Misdemeanors, 66 Stan. L. Rev. 611 (2014)
    9. Peggy C. Davis, Law as Microaggression, 98 Yale. LJ. 1559 (1998)
    10. Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2012) [excerpt here]
    11. Loic Wacquant, Crafting the Neoliberal State: Workfare, Prisonfare, and Social Insecurity, Sociological Forum, Vol. 25, No. 2, June 2010
    12. National Research Council, The Growth of Incarceration in the United States: Exploring Causes and Consequences (2014) (Jeremy Travis, Bruce Western, and Steve Redburn, Editors)
    13. Marie Gottschalk, Bring it On: The Future of Penal Reform, the Carceral State, and American Politics, 12 Ohio State L. J. 559 (2015)
    14. Nicholas Turner & Jeremy Travis, What We Learned from German Prisons,Y. Times, (Aug. 6, 2015)
    15. Christian Parenti, The Making of the American Police State, Jacobin (July 28, 2015)
    16. Elizabeth Hinton, From the War on Poverty to the War on Crime (2016) [excerpt here]
    17. Malcolm Feeley & Jonathan Simon, The New Penology, 30 Criminology 449 (1992)
    18. Bennett Capers, Real Rape Too, 99 California Law Review 1259 (2011)
    19. Department of Justice, Report on the Investigation of the Ferguson Police Dept. (Mar. 2015)
    20. The House I Live in, Documentary by Eugene Jarecki.
    21. The Vera Institute of Justice, “Bail Stories,” five videos of 1-3 minutes.
    22. The Prison Dilemma, short videos of Glenn Martin & Lashonia Etheridge-Bey
    23. African American Policy Forum, Say Her Name: Resisting Police Brutality Against Black Women (2015).

** Thanks to Sharon Dolovich and David Sklansky for feedback and support. Any errors and omissions are solely attributable to members of the Guerrilla Guides collective noted here.

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