Evan Bernick on "How Not To Teach Criminal Law"

Thanks to Will Baude, I came across this short essay by Prof. Evan Bernick (NIU College of Law). The paper is part of a symposium and is called "How Not To Teach Criminal Law".  Here is a bit from the abstract:

I teach something called "criminal law," which doesn't exist but which many people believe does exist. And so, I must be skilled in contending. The descriptive gap between the realities of criminalization and the content of the conventional 1L criminal-law curriculum is no less horrifying than Charybdis's maw. When teaching, I navigate between representing criminal law as existing, raising skeptical doubts about its existence, and questioning whether anything like it might be justified, if it did exist. I do this because I think I owe it to my students to teach what is and is not, and to raise questions about what ought and ought not be. So, I teach criminal law-and I also try not to.

Interested readers might also want to check out the late Jeffrie Murphy's essay, "'In the Penal Colony' and Why I am Now Reluctant to Teach Criminal Law."

Like Prof. Bernick, I also teach - last Fall was my 20th time -- "something called 'criminal law.'" I love it (although I'm not a Criminal Law scholar; I've written a few things about capital punishment and punishment theory). To be sure, as Prof. Bernick describes, teaching the first-year class (I also teach some upper-level electives on Criminal Law topics) requires one to address the . . . disconnect between the "General Part" stuff that is that class's focus and the realities of policing, prison conditions, plea bargaining, discrimination, poverty, overcriminalization, and so on. (I thought Prof. Bernick's discussion of "criminalisation" was particularly interesting.) And, there is no doubt that the typical first-year class spends more time on homicide, and less on, say, drugs and guns, than "the real world" of criminal-law practice involves.

My own view continues to be, though, that "Criminal Law" "exists" (as much as any other first-year subject does, anyway!), is justified, and should be taught to law students for reasons that go beyond preparation for bar examinations. As I see it, a political community may and should identify some morally blameworthy acts as crimes and punish appropriately those who commit such acts and the enterprise of identifying these acts and punishing those who commit them is one that law students should study (notwithstanding the "disconnect" mentioned above). Some reasons law students should study it might seem a bit pedestrian and familiar: it is good for first-year students who learn how to read, interpret, and apply statutes; to appreciate early on the importance of notice, clarity, prospectivity, legality, and lenity; and to learn to think "elementally". In addition, though, I think it is (or, can/should be) an opportunity for underscoring (again, notwithstanding the "disconnect" mentioned above and the pathologies and problems we are familiar with and that Prof. Bernick emphasizes) the fact that the Criminal Law is not simply a list of directives and prohibitions aimed at persons; it is also (or, it should be) a crucial reminder that the infliction, form, and severity of punishment by government stands in need, always, of justification and constraint.

Anyway. Check out the Bernick (and Murphy) essays.