July 25, 2006

posted by Daniel J. Solove

I teach my course much the same way that you do, and I am quite happy with it. I think, though, that those folks who are critical of teaching the MPC are actually critical of the focus on the general part. So, the question for them is what the benefit of teaching, say, drug offenses is, except that it is more likely that a student will prosecute a drug offense than a homicide. (Of course, having done the former and not the latter, I'd have to say that what you need is a good course in crim pro b/c the 4A questions are usually dispositive.)

As for whether we teach "what to punish," here, I do disagree. Sure we punish attempts, but they aren't anywhere near the borderline of what a state should punish. I see the problem in teaching this as two-fold 1) the old - harm to others v. legal moralism debate isn't where the action is -- most of the action is within harm to others and the question of what the outer boundaries of risk creation offenses should be. (so you can't sum up the problem simply by teaching Bowers) and 2) since most crim legislation is subject only to rational basis review, there are pretty much no legal impediments to what a state can criminalize (as Doug Husak says, a state could constitutionally criminalize eating sausage to prevent obesity) so wherever the limits come from, they aren't "legal" limits but either moral or political ones. Given that the politics of crim law lead to overcriminalization, there just aren't the boundaries there should be. But my challenge was to ask, how and where do you teach this? And in a 1L crim course, what would you give up?

Kim,

I agree that many law school classes overemphasize the purposes of punishment and do not spend enough time exploring the other question of what to punish. This is because most casebooks have an introductory section on the purposes of punishment and will highlight these thoughout the book. But questions about what to punish definitely exist throughout a criminal law course -- they just need to be brought out and highlighted.

As for the question of what to punish, this comes up front and center in discussing the basic principle that the criminal law punishes acts, not thoughts, in the actus reus section. Conspiracy and attempt raise the issue of how close society wants to come to punishing thoughts. Discussing the MPC raises this issue fairly well since it has a rather broad conception of attempt and conspiracy (especially conspiracy). The MPC is so mens rea focused that it sometimes comes close to punishing thought crime.

When teaching complicity and the felony murder rule, we discuss whether people should be liable for the acts of another and why. When teaching strict liability and negligence, we discuss whether these mental states are appropriate to form the basis of criminal liability.

When discussing homicide, we talk about why we should punish less for the spontaneous killer or the reckless killer rather than the premeditated killer. Why punish less for an intentional non-premeditated murder than for a premeditated one? Intentional non-premeditated murderers are often more dangerous to society than premeditated murderers (who usually are dangerous only to specific victims -- spouses, etc.). The mercy killer, for example, who kills his/her spouse suffering in pain is less dangerous to people at large than the person who has a quick temper and kills in the heat of the moment. But criminal law here doesn't focus on dangerousness.

The general rule for no liability for omissions is another instance to talk about what to criminalize. We discuss the case of David Cash, who didn't do anything as his friend killed a little girl. Most students find him utterly odious, yet the law doesn't criminalize his behavior.

So the question of what to criminalize is deeply interwoven throughout a criminal law course. It can be highlighted as one talks about many different issues of criminal law (mens rea, actus reus, homicide distinctions, inchoate crimes). True, we don't get into discussions about the drug war or overciminalization, but I think that extensive discussion of these topics is better covered in an advanced course. They go less to the practice of criminal law than to larger issues in morality and political structure/incentives. As you say, there are few legal limits on what the law can criminalize, and most of criminal law comes down to morality and politics. I don't spend a ton of time in class asking whether it is moral or not to criminalize drugs or self-regarding conduct, as this depends upon a more systemic philosophical moral analysis and my goal in class is more modest. I aim to get students not to reflexively think that whatever we criminalize must be immoral -- I want them to think critically that what is criminalized is the product of a contestable morality. Most students (I hope) come away disagreeing with some of the law's choices in this regard. A deeper more sophisticated discussion of morality would involve examining how the various philosophical moral systems would approach criminalization, and I think that this is too theoretical to spend much time on for a first year introductory course. There's not a lot to say about the politics other than politicians like to criminalize things because it's easy and expedient. It's a problem, but it seems to be the subject for an advanced course in regulating the legislative and executive branches. Of course, we talk briefly about these things, but a productive sustained discussion of the politics or morality strikes me as fodder for a more advanced course than for an introductory course in criminal law.

I would like to teach criminal law and I need an outline for what should be taught