Brazeal on Justice Theater in the Criminal Law Curriculum @USDKnudsonLaw @CardozoLRev

Gregory Brazeal, University of South Dakota Law School, is publishing Justice Theater in the Criminal Law Curriculum in the Cardozo Law Review. Here is the abstract.

For the last half-century, law students have been required to take a criminal law course that ostensibly trains them to think critically about the justifications for criminal punishment. The same students have then gone on to serve as central actors in a system of mass incarceration that millions of Americans today view as profoundly unjust.

How did this happen?

A number of legal scholars, notably including Alice Ristroph in her 2020 article “The Curriculum of the Carceral State,” have argued that the traditional criminal law curriculum has played a role in creating and reproducing the practices of mass incarceration. This article agrees, and focuses on two concrete critiques, alongside two corresponding curricular reforms.

First, criminal law courses routinely introduce the field in part by discussing a series of theoretical “justifications of punishment” such as retribution, deterrence, incapacitation, and rehabilitation. These discussions often provide students with tools for arguing in favor of punishment, and in particular incarceration, without providing relevant empirical evidence that shows the limits of the theoretical justifications. Students are invited to focus on the theoretical benefits of incarceration without being adequately exposed to the negative effects of incarceration as it is actually practiced in the United States today.

The tradition of introducing criminal law through the discussion of theoretical justifications for punishment should be abandoned. Instead, the article proposes beginning the criminal law course with an empirically informed discussion that frames criminal law as one response among many to the social problem of public safety.

Second, the bulk of most criminal law casebooks consists of excerpts from judicial opinions. These excerpts tend to describe harmful acts carried out by defendants without providing adequate context for thinking seriously about justice. The excerpts send the message that criminal harms result from isolated, individual choices by bad people, rather than being conditioned by situational and other factors, including policy choices by the state.

The article proposes replacing criminal law case excerpts with a method of instruction based on case studies, similar to the case study method used in many professional schools. Case studies could provide students with more context for understanding criminal harms, and in particular could better equip future prosecutors to serve as “problem-solver[s] responsible for considering [the] broad goals of the criminal justice system,” as the ABA Criminal Justice Standards demand.

In the coming years, the arrival of the NextGen bar exam will offer an occasion to reconsider how criminal law is taught in the United States. Rather than continuing to train students in ways of thinking that facilitate mass incarceration, the curriculum should be changed.

Download the article from SSRN at the link.