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Rethinking Criminal Law


Jocelyn Simonson (@j_simonson) is Professor at Brooklyn Law School.

Amna Akbar (@orangebegum) is the Charles W. Ebersold and Florence Whitcomb Ebersold Professor of Constitutional Law at The Ohio State University Moritz College of Law.

Energized and challenged by the rise of powerful grassroots movements in the wake of the Ferguson and Baltimore rebellions, law professors are rethinking how to teach first-year Criminal Law. At the Law and Society Association annual meeting this summer, Alice Ristroph convened a group to ask “Are we teaching what we should be teaching? . . . Might the path to criminal justice reform begin in, or at least run through, the classroom?” During a Criminal Law Casebooks session at the 2017 AALS Mid-year Meeting/CrimFest, Prof. Cynthia Lee–coauthor to our fellow LPE contributor Angela Harris–highlighted the need to bring more critical perspectives into Criminal Law. These are but two recent examples of many conversations formal and informal. What should we be teaching future lawyers about the history, causes, and solutions to mass incarceration and the on-the-ground experiences of people interacting with the criminal process?

Our engagement with these questions led us to co-write the Guerrilla Guide to Teaching Criminal Law in August 2016. The guide was itself part of our larger project, described in an earlier post, of reimagining law school discourse in the “movement moment.” The Guerrilla Guide to Criminal Law discusses a range of tactics to disrupt the standard fare criminal law discourse, from introducing theories of abolition (or alternatives to criminal law, policing, and incarceration for dealing with deep-seated social problems), to the inclusion of voices and experiences from directly impacted people and the movements that represent them, to changing the very topics that the course covers, for example by eliminating some traditional subjects in favor of units on drug crimes, police violence, or criminal law reform debates.

Although political economy was not per se at the center of our thinking, the Guide gives faculty tools for more meaningfully teaching students how the criminal legal system creates and perpetuates longstanding structural inequalities, particularly along lines of race, class, and gender, and in service of systems of accumulation and dispossession. It punctures the myth of criminal law’s neutrality. For example, we made the following suggestions (check out the Guide for associated sources to facilitate such study/conversation):

  • Introduce abolition. Incarceration has become the prevailing and most public aspect of criminal punishment. Abolition provides a framework through which to question the core assumptions about the relationship between incarceration, retribution, and utilitarianism, and to take seriously the scale of human devastation wrought by incarceration.
  • Study the historical connections between mass incarceration as an evolved extension of chattel slavery, Jim Crow, and convict leasing.
  • Study the political connections between the decline of the social welfare state and the rise of mass incarceration.
  • Study the relationship between crime and poverty, including thinking about why people commit property crimes in the first place.
  • Study the idea that criminal law is a tool of social control. Put this idea in conversations with the theories of punishment as a way to complicate the narrative around the possible purposes of criminal law.

These suggestions open up space to consider the political economy of criminal law–an aspect of the material subcutaneous to the traditional approach to the course. Angela Harris’s recent series of posts on teaching Fant vs. Ferguson provoke even deeper thinking. We look forward to deepening our engagement with the political economy of criminal law and welcome engagement from the LPE community on these questions.

For now, here are two sets of thoughts on how we might write the Guide differently today, with political economy more centered in our thinking.

First, we would explicitly name the importance of grappling with legacies and realities of racialized capitalism and settler colonialism in criminal law. The original Guide mentions gentrification in the context of bringing organizers to the classroom, and encourages a study of the connections between mass incarceration and enslavement. But substantively thinking about the historical and contemporary relationships between racialized capitalism, settler colonialism, and criminal law has to be at the center of our rethinking. Jackie Wang’s Carceral Capitalism and Kelly Lytle Hernández’s new book, City of Inmates: Conquest, Rebellion, and the Rise of Human Caging in Los Angeles, 1771-1965, recently reviewed by Jennifer Chacón in Harvard Law Review, are great resources for bringing racial capitalism and settler colonialism into class discussions.

As for places to widen the discussion in this way, most Criminal Law textbooks feature prosecutions of parents for abuse and neglect, often in sections on actus reus and omission, negligent homicide, sexual assault, and “depraved heart murder.” When studying these cases, faculty can include materials on how the criminal law interacts with broader state systems of monitoring and punishing poor people, especially black mothers, through the interaction between policing, government entitlements like housing and education, and the child welfare state. A number of scholars, including Ann Cammett, Kaaryn Gustafson, Priscilla Ocen, and Dorothy Roberts, have surfaced these issues in detail.

Second, in teaching abolition, we would dig deeper into the invest/divest idea central to the Movement for Black Lives Policy Platform, and illustrated in the Freedom to Thrive report authored by Law for Black Lives, BYP100, and the Center for Popular Democracy. When we read theories of abolition alongside more traditional justificatory theories of punishment, we open up questions of the proper realm of criminalization. (There are a great number of teaching tools out there from abolitionist organizations like Critical Resistance.) By introducing the idea of “criminal law and its alternatives,” faculty can push students to ask not just how to analyze a particular criminal statute or doctrine, but also whether criminalization is the best way to fight the particular social problem at issue.

This abolitionist poster depicting a series of doors representing the potential reallocation of state and federal resources to social services, including schools, housing, healthcare, libraries, and more is a powerful tool for thinking about alternatives to policing, prosecution, and incarceration.

It forces students to think about the material conditions of the communities — poor, Black, queer/trans, of color, immigrant — that most often end up arrested, prosecuted, and incarcerated, and ask how else the state might approach the relationship to the same social problems that are currently criminalized. A slide of this poster could be shown in class at multiple points–not just when studying theories of punishment, but also when addressing any number of doctrines, including the standard subjects of unintentional homicide, sexual assault, or inchoate crimes. We can ask of students not just, “how do courts interpret this doctrine?,” but also, “in which of these doors should the state expend resources so as to address the kinds of social problems that this doctrine is aimed at redressing?”

These thoughts about centering political economy in the teaching of Criminal Law are, we hope, just the beginning of a larger conversation, including contributions from Angela Harris and others on this blog. In the meantime, we welcome additional thoughts, strategies, and collaborators as we continue to grapple with these issues.