Introduction to this Casebook and to Criminal Law

Introduction to criminal law and this course

Welcome to Criminal Law! I find it to be one of the most interesting and thought-provoking areas of law and I hope that you will too.

Course materials

I decided to use an open-source casebook for two reasons: First, and most importantly, to save you the immense cost of another casebook. Second, I found myself adding more and more content because the lack of context and discussion of structural inequality in even the best casebooks was frustrating to me. So you will see here a combination of cases, along with other readings and sources. This is perhaps different than you expected or than you are receiving in your other first semester classes. I am hugely grateful to numerous colleagues and students for contributing to this project (please see full credits at the start of the book). This section in particular relies heavily on the work of my colleague Alice Ristroph.

My aim is that this casebook provides you with an introduction to important principles of criminal law, as well as an understanding of how issues of disability, race, sex, class, gender, and sexual orientation have been treated by the legal system and actors in the system.  The book should also help you consider how criminal laws reflect societal norms and values (or those of the 'mainstream' societal community), how they have influenced--and been influenced by--change in this country, and what shortcomings continue in modern criminal law and the criminal system.  I hope to invite meaningful discussions about the role of race in the legal system, and critical thinking about who in society benefits, and who is harmed, by current laws, policies, and enforcement decisions.

Although the subject of criminal law cannot be taught without the use of cases and resources that include terrible crimes with distressing details, I have tried to be thoughtful about the inclusion of difficult material.  I did so to avoid using traumatizing material when it was not necessary to the purposes of this course.  Please try be aware of your need for breaks and self-care as you proceed through these materials.

This book is always a work-in-progress. As the semester goes on, I will adapt these materials to match our pace together and to incorporate current events. I will always post at least two weeks ahead. As we go along, I welcome your feedback about which cases and other materials are helpful and which are less so, as well as places where more explanatory notes would come in handy. Please don’t be shy about letting me know what works and what doesn’t or even if you just find typos or other errors.

A quick note on language. First, as the American Bar Association (ABA) and other professional organizations have advised, I try to use people-first language to remind us of the humanity of people, particularly those impacted by the criminal system. Accordingly, I usually say "person convicted of a crime" or "the accused," rather than "criminal." Relatedly, I use the criminal legal system, instead of the criminal justice system, since I believe the system is frequently not just, particularly in its racial disproportionality. As the syllabus discusses in more depth, some cases and materials may use outdated language, and in class, I or other students may inadvertently use problematic language. Please let me know if this happens--I want to learn from you--and let us show each other grace as we are all learning together and trying to listen well to each other on these difficult topics.

Please also note that the book contains a supplemental resources section with optional materials, including podcasts. Please feel free to suggest new ones to me throughout the semester.

What Is Criminal Law?

Of the various subjects a student encounters in an American law school, criminal law may appear the most familiar.  From an early age, every American is exposed to depictions of various aspects of the criminal legal system. Police appear in children’s books and toys, criminal investigations and prosecutions are dramatized in television and movies (who hasn't seen at least one episode of Law and Order?), and of course there is frequent media coverage of arrests, trials, and punishments. Criminal law appears everywhere, in part because in the United States it is nearly everywhere: this country uses criminal legal interventions with a frequency and severity unmatched in most other nations, including to address conduct as varied as prostitution/sex work, killings, homelessness and many more. For this reason, many of the ideas and terms you encounter in this book will be ones you’re likely to have heard before: charges, conviction, presumption of innocence, proof beyond a reasonable doubt, to give a few examples—along with terms of critique such as mass incarceration, racial bias and overcriminalization. (Now might be a good time to look at the Bruce Western video on this topic).

Nonetheless, media or other cultural depictions of the criminal legal system are misleading, and these depictions won’t teach you to practice law or even to understand the criminal legal system. This book does pursue those goals, and others.  It seeks to give you an understanding of American criminal law that will be useful whether you practice in this field or a different area of law, and indeed, an understanding that will be useful even if you do not practice law at all.  With so much criminal law everywhere in the United States, understanding how this area of law operates is crucial for any lawyer (or really any person living here, to vote, assess policies etc).

Even with the seeming familiarity of criminal law, many students eventually find the subject to be very different from what they expected “law” to be. To minimize confusion, it is useful to begin with some basic descriptions. What makes criminal law the same as other areas of law?  That is, what makes it law?  And what makes criminal law different from other areas of law? What makes criminal law a distinctive field?

Philosophers have no single answer to the question, what is law?, and dictionaries identify the word as one with multiple meanings. We speak of the laws of physics, for example, but those statements about the observed properties of physical objects are very different from the kinds of laws that one studies in law school. For the purposes of this book, law can be understood as a human practice that involves both (1) authoritative written texts and (2) decisions by public officials. For example, a statute that defines “burglary” is a written text, and it is designed to guide official decisions by police officers, prosecutors, and judges. Official decisions are only sometimes guided by a prior written text; sometimes public officials make decisions without statutory or other written guidance.  And official decisions are sometimes, but only sometimes, recorded in a new written text. Decisions by police officers and prosecutors are usually unrecorded, whereas courts (mostly appellate) frequently document and explain their decisions in written opinions. This latter kind of text, the “case,” makes up much of law school reading assignments. 

But cases are not the only written texts that are important to the practice of law, and judicial decisions are not the only decisions that are important to law.  In criminal law (and many other fields), statutes are especially important legal texts.  And in criminal law, decisions by executive branch officials are often determinative of the case outcome. This is especially true in our current system, where about 95% of cases plead out, meaning  they never get to a jury and have very (usually very very) minimal judicial review and never appear in published cases. To give an example, if police and prosecutors decide to search, arrest, and prosecute people for marijuana possession only in certain neighborhoods (almost always low-income, disproportionately of color neighborhoods) and in almost all of those cases people plead out to get out of jail, or for other reasons, is the statute criminalizing marijuana really making the law? Or is it actually the police and prosecutors? Hint: Depending on the state, a statute may criminalize marijuana possession, but people in affluent neighborhoods don't really have to worry about having marijuana as they are so unlikely to be searched that it arguably is not really illegal for them in any meaningful sense.

Here, then, is one way in which criminal law is like other areas of law that you will encounter in law school: it is a distinctive human practice that involves the use of written texts to guide, constrain, or express official decisions and actions. It bears emphasis that the decisions reached in law are decisions made by human beings. Humans are rational creatures who might deliberate about moral values, or take into account empirical evidence, or be influenced by public opinion, or rely on “common sense” as they make legal decisions.  But human rationality is  limited by various factors such as imperfect information and cognitive biases. Perhaps criminal law is even more shaped by emotion and cognitive bias than other fields of human law; we will explore that possibility.  Certainly, racial bias is a particularly acute concern in criminal law. For now, the key point is that legal texts are designed to guide human decision-making, but the relevant text may not be the only factor that shapes an official decision. See e.g. the marijuana example above. What other factors may be influencing police and prosecutor enforcement policy? Politics (who donates and has clout)  including directives from the Mayor, Police Commissioner or District Attorney? (Often skewed and sensationalist) media coverage of crime? Police and prosecutor biases? A desire to get high numbers, of arrests and convictions, to increase funding for their departments?

A Quick Note on Law versus Policy

Many law students--or lawyers and people more broadly--draw a distinction between supposedly neutral or apolitical "law" (as made by court decision) and political "policy" (as enacted by legislatures in statutes, or by administrative agencies in regulations and other guidance). I believe that this is a false, and confusing, binary. We know that courts (look at, for instance, the U.S. Supreme Court in recent times) are influenced by politics to a lesser or greater degree, and that total neutrality is not really possible. Every law is driven by some underlying moral judgment, and decisions of how much to follow precedent by analogizing or distinguishing from other cases, inevitably include normative or value assessments. For our purposes here, we can think about both law and policy as being overlapping rules--there is the statutory rule, then court decision rule, that interprets and applies the statutes to particular cases or fact patterns. On top of this we have the enforcement policies or patterns that make more rules--arguably the criminal rules that affect most people. Remember the marijuana example? 

Moreover, what lawyers do is argue for their clients' goals, that a law/rule does or does not include their case. We will frequently be in role in class, arguing for conviction or acquittal/dismissal. There is no "right answer" to most law school questions; instead, the best answer is the law school cliche of "it depends." When reading cases, try to make the arguments both ways; That is the best way to do well on law school exams, and, more importantly, to learn to be a lawyer. The law is not static, but rather constantly changing, for better or worse.

To this end, for each statute or case we discuss, do not take the outcome as a given. Sometimes you may agree more with the dissent, or with the party who didn't win. That is fine! I often do. When reading cases and statutes, and thinking about problems and hypos, consider who gains and who loses from a certain outcome more broadly than the case at hand. Good lawyers find a way to argue these kind of distributive "policy" considerations--or put another way "slippery slope" concerns--and they often factor into even trial court decisions as well as, more explicitly, appellate court decisions.

How is Criminal Law Different Than Other Types of Law?

What (beyond the possibility of unusual effects of bias and emotion) distinguishes criminal law from other fields of law?   Criminal law was once more commonly called “the law of crimes,” and the concept of a crime may help us identify what is distinctive about criminal law.  In popular culture , the term crime is likely to bring to mind images of wrongful or harmful acts.  Accordingly, it is tempting to think of criminal law as the law that regulates (by prohibiting) acts of violence or other inflictions of harm. But in legal terms, a crime is any act that has been designated as a crime by the appropriate legal actors.  We will consider a wide array of acts designated as criminal and investigate whether we can identify one or more shared characteristics of those acts.  Is there an agreed-upon moral or societal definition of “wrong” or “harm” that predicts which acts will be labeled as crimes? Almost certainly not. Different communities having varying views--think e.g. of drug possession, parents' corporal punishment of their children, or jaywalking. The contested definition of wrongs and harms is true of even the most serious crimes, such as killings of a person. Self-defense and other justifications and excuses result in killings being treated very differently.

Whether or not the acts designated as criminal are in fact wrongful or harmful in all cases, the designation of a person as “a criminal”--or someone convicted of a crime--brings significant negative consequences to that person.  Criminal law is often said to be distinctive in imposing unique burdens, such as loss of liberty through a jail or prison sentence.  Even when a person convicted of a criminal offense avoids incarceration, a criminal conviction carries considerable stigma and often renders a person ineligible for various social benefits including access to public housing, certain types of employment, and the right to vote.

Indeed, the burdens of a criminal conviction are a key part of the distinction between criminal law and tort law.  Tort law, which you will also study in your first year of law school, is similar to criminal law in that it imposes legal liability for conduct designated as wrongful.  In fact, the modern English word “tort” comes from the Latin word tortum, meaning wrong or injustice.  Many acts are both crimes and torts, such as intentional inflictions of physical injury.  But tort law is different from criminal law in at least two key respects.  First, the sanctions are different; tort liability usually means having to pay monetary damages, but it does not involve potential incarceration or the stigma of a criminal conviction. Again, criminal law is distinctive in the severity and stigma of its sanctions.  A second way in which tort law is different from criminal law is that the decision to pursue a tort claim is usually the choice of a private party, not a public official.  Police and prosecutors decide whether a given individual will be investigated and charged with a crime, but the party who is harmed by tortious conduct decides whether to file a tort suit.

Because the burdens of a criminal conviction are seen as more severe than the burdens typically imposed by non-criminal laws, criminal law contains various structures designed to limit the imposition of criminal penalties. For example, criminal punishment is said to require a higher standard of proof than is required in many other areas of law – that’s the beyond a reasonable doubt standard that you’re likely to have heard of.  This is another way in which criminal law differs from tort law, and it may explain why some defendants are acquitted of criminal charges but found civilly liable for the same conduct in a tort suit.  O.J. Simpson is a famous example of this: he was acquitted of the murders of his ex-wife Nicole Simpson and her friend Ron Goldman, but Simpson was found liable for the deaths in a subsequent civil tort suit with a lower standard of proof. Today, however, when the vast majority of accused people finish their cases with a plea ‘bargain’ rather than after a trial, some of these procedural protections do not do much work. **Now might be a good time to look at the two flowcharts in our reading for class 1, and to think about how these different process stages operate in theory versus in practice. Both show how complex the system is, but the 2nd, more critical, flowchart, demonstrates how most people never get to the adjudication stage--so the high burden of proof on prosecutors/the state does not often help them in reality.

Who ‘Makes’ Criminal Law?

Throughout this course, we will consider three types of official decisions that are especially important to criminal law.  For any individual person to be convicted of a crime, each of these three decisions is necessary.  First, the criminalization decision is the choice to define some category of conduct as criminal. Today, this decision usually must be made by a legislature and expressed in a criminal statute.

As a result, criminal law is often thought of as the “statutory” first year course. In other first year courses, judges often explicitly make the rules. They decide whether a contract is enforceable or whether a tort defense is available. By contrast in criminal law, the rules are generally made by the state legislatures. The relevant state (or city or federal) statute tells us what is forbidden and the courts' job is to interpret those statutes to determine whether the defendant has done the things the legislature has prohibited.

Yet, as we will discuss throughout this semester, criminal statutes and other texts that define activity as criminal are not self-enforcing.  For example, as previously discussed, the existence of a statute that criminalizes the possession of marijuana is not by itself enough to ensure that all persons who possess marijuana will be convicted of violating that statute. A second type of decision key to criminal law is the enforcement decision, or the decision by enforcement agents such as police and prosecutors (from the executive branch) to arrest or charge a given person.  Indeed, given the vast sweep of criminal laws, and the impossibility of arresting and charging everyone who commits a certain crime (e.g. shoplifting, marijuana possession, and many more), the enforcement of a law is arguably actually “creating” criminal law. The enforcement decision is usually not just one decision but two decisions or more: the decision by a police officer to investigate and perhaps arrest a person; the decision by a prosecutor to charge a particular offense; and in many instances, later decisions by a prosecutor to add or drop charges as part of a plea-bargaining process. Unlike the legislative process, these decisions by prosecutors are very untransparent and hidden from view. This is starting to change, with a small number of so-called “progressive prosecutors” publishing data online. We will discuss the power of prosecutors, and the potential for them--more than courts and legislatures--to drive criminal system reform, throughout this course. In the meantime, the cartoon under the "Power of the Prosecutor" tab is an illustration of who really makes criminal law today.

Plea bargaining is often (but not always) a precursor to the third key decision, the adjudication decision, in which a formal, and usually final, decision is made to classify the defendant as guilty or not guilty. If a criminal case involves a jury trial, then it is the jury who makes the adjudication decision.  Some criminal cases (such as most of those involving teens, whom I represented as a public defender) involve bench trials, in which a judge serves as the factfinder and decides whether to convict the defendant or not. But the vast majority--around 95 %--of criminal convictions are based on guilty pleas rather than jury or bench trials. 

When a defendant pleads guilty, it is more difficult to identify the actor who makes the adjudication decision. It could be said that the defendant himself (or herself) makes the adjudication decision, since the defendant admits his own guilt instead of asking a jury or judge to determine guilt. But what would lead a defendant to do that? In a system that promises that every defendant will be presumed innocent until proven guilty, why do so many defendants disclaim their own innocence and relieve prosecutors of their burden to prove guilt? Hint: think of the Kaleif Browder case discussed in our class 1 readings--what pressure does being incarcerated before trial--while presumed innocent in theory--put on people to plead? Most can't pay bail and don't want to stay there, and be abused and put in solitary confinement for years. Others can't be jailed for even a short time or they risk losing their jobs, custody of their children, their homes. . .On the other hand, in the few cases where juries are active, they may sometimes act on issues that do not relate purely to the definition of the law--such as biases, concerns about police and state violence, sympathy for a defendant or victim, etc. The OJ Simpson case is also an example of this phenomenon, as is the upcoming trial of Luigi Mangione, accused of killing the CEO of United Healthcare.

We will explore these questions more throughout the semester. It will turn out that criminalization decisions and enforcement decisions can create situations in which adjudication decisions all but disappear – the choice of what to criminalize, and how to enforce those laws, can make a guilty plea rather than a trial the least terrible option for many a defendant. For now, it is important simply to note that the distinctive standard of proof mentioned above – proof beyond a reasonable doubt – does not actually get tested in most criminal cases.  Prosecutors don’t have to “prove” anything if a defendant pleads guilty.

In short, criminal law is a human practice which involves three important types of decisions: criminalization, enforcement, and adjudication.  We will consider similar questions about each type of decision: Who makes it?  Does the decision have to take a certain form (a statute, an indictment, a verdict) in order to be recognized as legally valid?  What constraints or criteria apply to the decision, and how does each decision establish constraints or criteria for other decisionmakers? (We will also be thinking of the decisionmakers in terms of the 3 branches of government, and the balance between them).

Conclusion: Criminal Law in Practice

The other readings for today--excerpts from Before the Law, Misdemeanorland, and The New Jim Crow--show how the criminal system works on the ground in a world of plea bargaining with no real published law, and how that intersects with race, class, and other structural inequality (think eg of people who are undocumented) to limit the choices, and real process of law, for many people.