"The Curriculum of the Carceral State"

The title of this post is the title of this recently published essay by Alice Ristroph.  Here is its abstract:

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.  

I highly recommend everything penned by Alice Ristroph, and I am especially excited to see her turn her attention to the gaps between "our curricular model and our present criminal law reality" and to how "American law schools, through the required course on substantive criminal law, have contributed affirmatively to the collection of phenomena commonly labeled mass incarceration."  And reading this great piece reminded me of this very short commentary I wrote in the very first issue of the Ohio State Journal of Criminal Law way back in 2003 to flag my concerns that "failing to discuss the modem dynamics of criminal law doctrine and practice ... [results in] a substantive criminal law course that is often archaic, incomplete and perhaps unjustifiable."  My point back then was that modern criminal justice developments, particularly the drug war, plea realities and sentencing reforms, made the Model Penal Code outdated as a fundamental teaching text.  As I put it then:

The original MPC retains important historical value as a compendium of post-war scholarly thinking about criminal law, and its impact as a practical reform project remains profound. However, because the fundamental issues and concerns of criminal law doctrine and practice have shifted so dramatically in the last 40 years, the original MPC's continued use as a criminal law textbook operates, in my view, as a considerable disservice to criminal law academics and students, and ultimately to the entire field of criminal justice....

[T]he front-line realities of modem criminal law doctrine and practice have become quite grim and messy, and yet study of the original MPC can suggest that criminal law doctrine and practice is quite enlightened and orderly.  The MPC — and our teaching of it — trumpets the foundational concepts of actus reus and mens rea; yet the act requirement is often functionally eclipsed in a world in which conspiracy and possession offenses are staples, and the import of mental states is often functionally eclipsed in a world in which most sentencing factors are strict liability elements.  The MPC — or perhaps more particularly our teaching of it — suggests that homicides and other serious offenses are the central concern of the criminal justice system; yet modem criminal dockets are clogged with 60 times more felony drug and property cases than homicide cases. The MPC — and especially our usual methods for teaching it — suggests that many cases raise legal and factual claims and defenses that are resolved at trials where burdens of proof and precise offense elements are scrupulously considered; yet such matters very rarely occupy real criminal courts as judges spend the bulk of their time processing and sentencing the 19 out of every 20 defendants whose convictions are secured through guilty pleas.  And of course the MPC could not discuss — and I fear our teaching still fails to discuss — the enormous economic and personal costs and consequences of making mass incarceration a defining element of the modem American criminal justice system.

Gosh, I sure wish these musings of mine from this 2003 article felt more dated now, but Alice Ristroph's article effectively highlights how these problems have only gotten worse over time.