Written by:
Markus D. Dubber
SUNY Buffalo Law School
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Mark G. Kelman
Stanford Law School
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PREFACE
Criminal
law is fun. Whatever challenges await the authors of a civil procedure
casebook, putting together a criminal law casebook by comparison is
easy: the main job of a criminal law casebook is to stay out of the way
of the inherent interest that its subject holds for beginning law
students.
The goal of this book, then, is to
present a stimulating collection of up-to-date materials that capture
the complex reality of modern American criminal law.
The last significant change in the
way American criminal law is taught occurred some forty years ago. In
1962, the American Law Institute (ALI) completed its Model Penal Code and
Paulsen & Kadish published the first edition of their seminal
casebook, Criminal Law and Its Processes (which still covered both
substantive and procedural criminal law). Paulsen/Kadish (and later
Kadish/Schulhofer) was the first casebook based on the Model Penal Code
and has set the standard for American criminal law teaching ever since.
Since then, American criminal law
has undergone so many dramatic changes that it is time to
reconceptualize American criminal law teaching once again. Some of the
more momentous developments since 1962 include:
- The collapse of the
rehabilitative project and the renaissance of retribution as a
justification for punishment;1
- The eventual dominance of
incapacitation in a decades-long “war on crime”;
- The rise of the “victims’ rights” movement, and the
concomitant recognition of the victim’s significance in all aspects of
criminal law, from definition (e.g., hate crimes) to imposition (e.g.,
victim impact statements) to infliction (e.g., restitution and
compensation);
- At the same time, the explosion of so-called
victimless crimes, most importantly of drug offenses in a “war on
drugs”;2
- The
demise and rise of capital punishment;
- More recently, the enlistment
of criminal law in a “war on terror”;
- The appearance of internet
crime;
- The rise of white collar
criminal law;
- The expansion of federal
criminal law;
- The growth of administrative,
or regulatory, criminal law and the resulting transfer of criminal
lawmaking power from the legislature to executive agencies (after the
shift from the judiciary to the legislature solidified by the Model
Penal Code);
- The emergence of vaguely
defined offenses like RICO, money laundering, and stalking that free
law enforcement officials from the constraints of legality in the
pursuit of elusive “criminal networks” or dangerous individuals;
- The proliferation of inchoate
and dangerousness offenses, like possession, solicitation, unilateral
conspiracy, facilitation, and reckless endangerment;
- The death and rebirth of
loitering statutes;
- The continued expansion of
so-called public welfare and malum prohibitum crimes;
- The entrenchment of strict
liability offenses throughout the “periphery” (e.g., public welfare
offenses) and the “core” of criminal law (e.g., felony murder);
- The reform of the law of sex
offenses, including the abandonment of the marital rape exemption and
the adoption of rape shield laws;
- The rise and demise (and
renaissance?) of constitutional criminal law;
- The curtailment and, in some
cases, abandonment of the insanity defense;
- The establishment of plea
bargaining as the dominant mode of case disposition and the attendant
disappearance of jury trials;
- The emergence of a law of
punishment, including the appearance of punishment guidelines as a
source of criminal law, the creation of a determinate punishment
regime, and the transfer of the power to make the law of punishment to
quasi-administrative bodies (sentencing commissions);
- The erosion of the distinction
between the treatment of juveniles and the punishment of adults in all
aspects of criminal law;
- The expansion of so-called
non-punitive measures, including civil forfeiture, indefinite
commitment of “sexual predators,” and involuntary registration and
community notification for sex offenders;
- The rising popularity of
so-called alternative punishments, including shaming penalties;
- The widespread adoption of
harsh recidivist statutes, including three-strikes laws;
- The privatization of prisons;
- The abolition of parole and the curtailment of probation;
and
- Last, but certainly not least, a six-fold increase in the
prison population to over two million, resulting in the highest
incarceration rate in the world, with particularly disturbing effects
on the minority population, with as many as one third of all black
males in their twenties under some form of carceral or noncarceral
penal control.
General
Part (Principles of Liability). The Model Penal Code concerned
itself mostly with the general part of criminal law, and today pretty
much everyone teaches—and thinks about—the general principles of
American criminal law along the lines of the Code. If one takes the MPC
as the baseline of American criminal law, as we do in this casebook,
the study of the general part should be fairly straightforward, while
noting “common law” and “traditional” variations along the way.
To gain a fresh perspective on
familiar material, we have frequently adopted a comparative approach to
the issues covered in the book. Comparative materials include excerpts
both from foreign (and, to a lesser extent, international) criminal law
and from American civil law, to highlight parallels between the law of
crimes and the law of torts (and, occasionally, contract law and victim
compensation law). The ALI’s Restatements of Torts make for a
particularly convenient point of comparison on common issues, both in
the general part (e.g., negligence, recklessness, intention, causation,
omission, “privileges”) and in the special part, where we consistently
explore the availability of civil remedies as alternatives, or
supplements, to criminal sanctions. For instance, our discussions of
the difficulties in defining when women are “coerced” sexually (in ch.
9, on rape) and in ascertaining when “consent” is “freely given” (see
ch. 7, on justification) are explicitly tied to discussions of
“coercion” in contract law. This emphasis on parallels among different
areas of law will be especially useful to novice law students, who are
generally rushed through survey courses covering enormous amounts of
material during both semesters of their first year, and find it
difficult, without guidance, to notice the relationship among the
courses they study.
In another attempt to locate
criminal law within a broader conceptual context, we encourage students
to explore the constitutional limitations on substantive criminal law.
Although substantive criminal law remains far less constitutionalized
than does procedural criminal law, constitutional principles can—and in
some cases do in fact—place formal and substantive constraints on
substantive criminal law as well, including certain aspects of the
principle of legality, the source and scope of criminal jurisdiction,
double jeopardy, actus reus, mens rea, defenses, burdens of proof,
and—perhaps most important—the right of the state to criminalize
conduct.3
Acknowledging
the Model Penal Code as the key to—if not the source of—the general
part of American criminal law also allows us to drive home the point
that American criminal law is no longer judge-made common law, a point
that was still contested in 1962 but no longer warrants extensive
discussion. That does not mean, however, that American criminal law is
legislator-made, as the MPC assumed, and properly so for its time. For
even though all of American criminal law is now codified (or at least
statutory), much of it has become increasingly insignificant because so
much of criminal law today is, in fact, the law of punishment, as
opposed to the law of crime: “sentencing” law has become, in a
significant sense, the real heart of substantive criminal law. Since
sentencing law, however, increasingly is generated by a
quasi-administrative—sui generis—body of experts, a sentencing
“commission,” it appears like an exercise in lawmaking by an executive
agency rather than by the judiciary. The executive also makes criminal
law through prosecutors, who control sentences through charging
decisions, and through other, more traditional, administrative
agencies, which promulgate rules and regulations backed by criminal
sanctions (generating “regulatory” offenses in the true sense). There
is now even a scholarly literature very much in support of the shift of
criminal lawmaking power to the executive.
The present book deals in some
detail with punishment law as criminal law, and sentencing guidelines
as codes. The law of punishment—with a now well-developed jurisprudence
on sentencing—serves as a convenient point of entry into federal
criminal law and the federal guidelines, which turn out to be a de
facto federal criminal code, with a general part and a special part,
including offense categories and offense definitions.
Special Part (Specific Offenses).
The teaching of the special part of criminal law also requires
significant updating. The MPC succeeded, by and large, in shaping the
big issues of the general part. The special part, though, is another
story. If one read the MPC’s special part today, one would have no idea
what American criminal law—in the special parts of criminal codes,
other statutes, and regulations, as well as in courtrooms and in
prisons—actually looks like.
Modern criminal law, contrary to
the impression left by the MPC, is not about homicide, or theft. It is
about the very crimes that appear nowhere in the MPC: drug possession
crimes, traffic offenses, and “white collar crime” in its myriad
manifestations. If a “traditional” crime deserves emphasis—not only
because there is actually some doctrinal development in this area—it is
rape, and other sex offenses, not the stagnant homicide, the MPC’s
central crime.4
Homicide used to get more than its
share of doctrinal attention, but the trend in modern criminal law has
been to generalize once homicide-specific doctrines like self-defense
(originally homicide se defendendo). Still, an extensive chapter on
homicide is included, not only for the sake of continuity but also
because the law of homicide remains the most heavily parsed area of the
special part and provides a convenient testing ground for student’s
understanding of the distinctions among various types of mens rea.
Moreover, the law of provocation/extreme emotional disturbance raises
significant theoretical issues that may help students better understand
the defenses of excuse and justification, and may help them understand
more generally the perils and promises of vaguely defined statutory
language, on the one hand, and unduly constrained rules on the other.
The much more common possession
offenses by themselves can be used to teach many issues in modern
criminal law—actus reus, omission, mens rea, strict liability, conduct
offense/result offense, inchoate offenses, complicity, defenses,
presumptions (of possession based on something else— like presence—and
of something else—like distribution—based on possession). Traffic
offenses also generate thoughtful discussion because students are much
more likely to be familiar with them through personal experience than
they are with, say, homicide. In addition, they raise a host of
interesting issues themselves—e.g., actus reus, strict liability,
punishment vs. regulation and civil sanction (like suspension of
driver’s license), and criminal vs. civil negligence.
For similar reasons, white collar
crimes receive more attention in the present book than they have in the
past. Students—and courts—are less likely to demonize an insider
trader, or even a third-party money launderer, than they are a murderer
or a rapist, and therefore may be less impatient with the doctrinal
niceties of the analysis of criminal liability. What’s more, white
collar crime is an area of American criminal law that is continuously
developing (and expanding) and is much richer, from the standpoint of
criminal law, than is generally supposed. New white collar crimes
nicely illustrate many key issues in criminal law, including, e.g.,
symbolic legislation, vagueness, legislativity, strict liability,
vicarious liability, group criminality, actus reus, complicity,
material/nonmaterial elements, federal/state jurisdiction,
civil/criminal sanctions/remedies, and in their complicated— and often
convoluted—structure, the operation of “the special part” in modern
criminal law, be they defined in criminal codes, other codes, or
administrative regulations, or—as is often the case—some combination of
the three.
We place great emphasis on the
effort to have students engage with the doctrinal issues early and
often, rather than observe them from afar with the attitude that
criminal law is something that happens to other (more precisely, bad)
people. To this end, we have included not only cases, statutes, and
excerpts from scholarly commentary, but also excerpts from newspaper
accounts, jury instructions, and executive materials (like agency
regulations, prosecutors’ manuals and guidelines, and internal
government memoranda) and have supplemented the primary and secondary
materials with Problems that allow students to deepen their
understanding of an issue or set of issues. The obligatory homicide and
rape cases are supplemented— and probably outnumbered—by cases on drug
crimes (possession and distribution), gun possession, shoplifting,
traffic offenses (DWI, reckless driving, negligent homicide), loitering
and trespass, internet crimes, hate crimes, tax evasion, RICO, mail
fraud, and money laundering (the crime that opens and closes the
casebook).
Form
and Function. In implementing the basic approach outlined above,
our casebook remains largely within the general structure of a criminal
law casebook familiar since Paulsen/Kadish [table of contents].
It begins by exploring justifications for criminal law (ch. 1) and
basic formal constraints on the power to make criminal law (ch. 2).
Having set out the common structure of the analysis of criminal
liability in American criminal law (ch. 3), it covers first the general
part (chs. 4–8),
and then selected offenses in the special part, rape (ch. 9), homicide
(ch. 10), and white collar crimes (ch. 11).
The materials are presented with an
eye toward the role of first-year (and often first-semester) criminal
law classes as courses on legal thinking, rather than merely on
criminal law, on method, rather than merely on substance. A casebook on
criminal law—like all first year casebooks—is really two casebooks
wrapped into one: a criminal law casebook and a legal methods casebook.
Throughout this book we highlight
the materials both for their more straightforward doctrinal
significance and for their potential as instances of various repetitive
themes that can be traced throughout the doctrine. These themes, we
will emphasize, are not limited to particular topics in criminal law,
nor are they limited to criminal law in general, but instead are
features of legal thought and action that one can detect in all areas
of law, and—more to the point—across the first year curriculum.
Among the repetitive themes running
through the materials is one of form: the distinction, and tension,
between doctrinal rules and standards.
5
The distinction between rules
and standards—and recurrent arguments regarding their respective
merits—can provide the collection of cases, statutes, and comments in
this casebook with a comprehensive formal framework. What’s more, it
can help connect the course in criminal law to other courses in the
first year curriculum, where students encounter similar tensions
between rule-like and standard-like tests (as, for instance, the
contrast between rules regarding offer and acceptance and standards
like the duty to bargain in good faith in the law of contracts).
Aside from these pervasive
questions of form, we will also frequently examine the function of
particular doctrines, and doctrinal approaches. The complex doctrinal
apparatus of the law of possession, for instance, might profitably be
understood as part of a general attempt to construct a system of
criminal law that is well suited to eliminate criminality through the
early detection of potentially dangerous individuals, while ostensibly
remaining within the formal limits set by traditional criminal law
doctrine. Likewise, it may help to regard the famously
self-contradictory capital jurisprudence of the U.S. Supreme Court as
part of a system wide effort to shift responsibility for (capital)
punishment onto other participants in the criminal justice system.
6
But enough about what we
tried to do in this book. It’s up to you to decide if we succeeded.
Markus D. Dubber
Mark G. Kelman
1 On the Code’s
anti-retributivist and pro-treatmentist approach, see Markus Dirk
Dubber, “Penal Panopticon: The Idea of a Modern Model Penal Code,” 4
Buff. Crim. L. Rev. 53 (2000) [westlaw.com; password required].
2
The Model Penal Code did not include drug offenses because
the “project did not extend to [special topics such as narcotics,
alcoholic beverages, gambling and offenses against tax and trade laws]”
while “a higher priority on limited time and resources was accorded to
branches of the penal law which have not received close legislative
scrutiny.” See Model Penal Code (Proposed Official Draft) 241 (1962).
3
See, e.g., Lawrence v. Texas, 123
S. Ct. 2472 (2003) (striking down homosexual “sodomy” statute on
due process grounds) [westlaw.com;
password required]. Note too
that we raise issues about the appropriate reach of the criminal law
not merely in relationship to the traditional victimless crimes (e.g.,
drug use, voluntary sexual contacts) but in relationship to the
expansion of white collar crime (e.g., certain forms of securities
fraud, money laundering).
4 It’s
no accident that the blueprint for the MPC first appeared in an article
devoted to the law of homicide. Jerome Michael & Herbert Wechsler,
“A Rationale of the Law of Homicide (Parts I & II),” 37 Colum. L.
Rev. 701,
1261
(1937) [heinonline.org; password required].
5 Cf. Mark G. Kelman, “Interpretive Construction
in the Substantive Criminal Law,” 33
Stan. L. Rev. 591 (1981) [heinonline.org;
password required].
6 Cf.
Markus Dirk Dubber, “Policing Possession: The War on Crime and the End
of Criminal Law,” 91
J. Crim. L. & Criminology 829 (2002); Markus Dirk Dubber, “The Pain of Punishment,” 44
Buff. L. Rev. 545 (1996)
[westlaw.com;
password required].
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