Thread by @AndrewMCrespo

Some #lawprof news. @JohnMRappaport and I are writing a new casebook for Criminal Law.

Our goal is simple: to help teachers better educate students about the role law and lawyers have played in creating a penal system defined by mass incarceration and excessive police power.🧵

We come to the project motivated by a frustration, which we know many share, with course materials that center moral philosophy, statutory interpretation, and doctrinal brain teasers – but that treat mass incarceration and police power as at best secondary themes.

For the first time in history, our students are coming to law school having lived through two massive, nationwide protests (in 2014 and now 2020) about the penal system’s failings. They rightly want to understand and engage those failings. We think we owe them that understanding.

Our aim in this new book is not to turn this essential law school course into a PoliSci or criminology class. Our book will still very much be a casebook, and very much a book about the criminal law.

But crucially, it is about the criminal law’s evolution - from a legal framework that used to define the state’s power to punish into one that has expanded that power to untenable extremes, and facilitated the state’s ability to punish far too many people, for far too long.

Basically, we think Bill Stuntz had it right when he observed that criminal law today "does not drive criminal punishment” and that “[a]nyone who reads criminal codes in search of a picture of what conduct leads to a prison term . . . will be seriously misled.”

Almost every Criminal Law professor we know agrees with this statement. Few would defend the idea, implicit in our teaching, that the twists and turns of mens rea, actus reus, causation, justification, or excuse constitute the central features of the American penal system.

Rather, to understand that system, one also needs to understand how law empowers the system’s central actors–its enforcers. This requires studying how criminal law shapes prosecutorial and police power, and how those actors have used their power to construct the status quo.

We thus take to heart not only Stuntz's warning but also Alice Ristroph's: Criminal Law professors must "address the agents...of law enforcement,” the police, who “connect crimes to punishments” by supplying “prosecutors, courts, and eventually prisons with persons to punish.”

We anticipate a number of exciting innovations in this book. At the same time, we aim to produce a book that feels familiar to those who have spent years studying and/or practicing in this field (as we both have).

Criminal Law professors already understand the relationship between criminal law and the American penal system. It’s what we write about. It’s time for our casebooks (and by extension, our teaching) to focus our students on that essential relationship, too.

We’ll be devoting the coming year to this project, with the (ambitious) goal of getting an early edition into the hands of folks who might want to teach from these new materials next fall – and a full release the following semester.

In the meantime, if you teach in this area or have spent time thinking about how best to teach this course, we hope to be in touch! We plan to start workshopping different chapters of the book and will be looking for feedback as we write them.

Ultimately, our goal is to create a book that professors and students will find useful for many years to come - and most especially in these unprecedented times, when understanding the relationship between Criminal Law and the American Penal System is more important than ever.