Reforming American penal law.

• Author: Dubber, Markus Dirk

This article develops a new code-based, comparative, and comprehensive program for American penal law. Without this fresh start, the discipline of American penal law will play no significant role in the inevitable reconsideration of arational penal legislation accumulated during the war on crime of the past two decades.(1) Already, the writing of reform is on the wall. The American Law Institute is considering a revision of its Model Penal Code.(2) The pressure on the federal government to revise its anachronistic, bloated, and incoherent criminal code is mounting.(3) And even Draconian drug laws, the vanguard of the war on crime, have begun to come under attack.(4)

To have a voice in this much-needed legislative reform, American penal law scholarship must first reform itself. Without a sophisticated account of codified penal law that reflects the variety and scope of modern penal law within and across jurisdictions, American penal law scholars will remain largely irrelevant to the making of penal law in this country, and rightly so.(5)

The age of the common penal law is over. Penal law now is made in codes by legislators, not in court opinions by judges. To deserve a say in penal legislation, American penal law scholars must become experts in penal legislation. And to have the ear of legislators, American penal law scholars must address legislators, not judges.

The reform of American penal law will require a sustained effort to reshape the attitudes of all those who affect and operate the various aspects of the penal system. To influence the praxis of its subject matter, the discipline of American penal law must make a place for itself in this effort. Scholars and teachers of American penal law must begin to perceive themselves as participants in the penal system itself, both by recognizing themselves as contributors to--rather than as mere observers of--the making and application of penal law, and by instilling in present and future system officials a sense of obligation to achieve and maintain the legitimacy of their coercive actions. In other words, the discipline of American penal law must come to see itself as part and parcel of its subject, the praxis of American penal law.

To prepare itself for this formidable and absolutely crucial task, the discipline of American penal law must integrate itself both internally and externally. This means that the discipline, first, must shatter the artificial distinctions between its three subdisciplines, substantive penal law ("criminal law"), procedural penal law ("criminal procedure"), and prison law, and, thus reconstructed, place itself within the larger context of law. The subdisciplines of penal law exist in inexcusable isolation not only from the praxis of penal law, but also from one another; the discipline of penal law itself muddles along in almost complete ignorance of other areas of law. American penal law has yet to develop a satisfactory account of its relation to the law of torts or contracts, or for that matter, to the law of taxation or bankruptcy. As a result, American penal law has the least to say about the very issues that matter most in penal lawmaking--namely the proper role of penal law in public policy, and the proper scope and definition of offenses within that role. Put another way, no theory of the special part of American penal law currently exists.

The remainder of this article, in Part I, outlines a general program for the reform of all aspects of the discipline of American penal law, including teaching, scholarship, and public service. Part II then shows how one might begin to put that program into action. It works out a new, integrative approach to the analysis of American penal law, with particular emphasis on substantive criminal law. Against the background of this code-based, comparative, and comprehensive approach, Part III lays out the plans for a new kind of penal law resource that draws on the scope, flexibility, and interconnectedness of the web medium to capture both modern penal law's enormous breadth and complexity, while at the same time exposing its potential for internal and external integration--that is, its essential "webness."

Over the past year, I have begun putting the plans for such a penal law web into action.(6) Readers are invited to sample this prototype as they move through the discussion in Part III. It is important to keep in mind, however, that this illustrative version of a penal law web captures the integration of only one aspect of the penal law, substantive penal law ("criminal law"). To realize the full integrative potential of penal law, the current model would have to be located within a wider web of webs dedicated, internally, to other aspects of the penal law as well as, externally, to other areas of the law within and eventually across jurisdictions, countries, and legal systems. The construction and maintenance of this network of webs will require a sustained coordinated effort among a large group of legal experts.

Part IV closes by exploring the ways in which the outlined web resource could help shape the critical attitudes of participants at all levels of the penal law system. A web, however, can only lay the groundwork for the legitimacy critique of penal law by collecting and categorizing data. In the long run the legitimacy of the most facially illegitimate of state practices, punishment, can only be achieved and preserved if the integrative potential of penal law is first realized and then fulfilled. Otherwise, penal law will remain that ever-expanding morass beyond the pale of comprehension and critique which it is today.

1. REFORMING AMERICAN PENAL LAW

   The internal and external integration of American penal law must reach every aspect of the discipline, from teaching to scholarship to public service.

   1. TEACHING

      No area of the law, no mode of governance, requires legitimation more urgently than the threat and actual infliction of punishment in the name of penal law.(7) And this process of legitimation through public critique must begin in the classrooms of our law schools. This means, first and foremost, that it is no longer enough to teach law students to think like lawyers. Instead, students must be taught to think like legislators, like the producers and not merely like the consumers of law. Only then will they come to appreciate the systematic complexity of the codes that lie at the foundation of modern law, and of modern penal law in particular. Only then will they come to develop the sense of authorship and responsibility required for that continuous critical analysis of state lawmaking which is the only possible source of legitimacy for the modern state's coercive governance of its presumptively self-governing constituents.(8)

      Reforming penal law teaching will also require expanding the role of penal law in the law school curriculum. To restrict the subject of substantive criminal law, for example, to a single semester in the first year of study is unacceptable for two reasons: first, the explosion of criminalization over the last decades has transformed the always challenging task of covering this subject in one semester into an impossible one; second, the traditional function of the first year curriculum condemns the substance of any subject, including substantive criminal law, to incidental significance. If the legitimacy, not to mention the soundness, of penal law is to be achieved and assured, law schools can no longer regard the teaching of penal law as a means to the ill-defined and shortsighted end of teaching incoming students how "to think like a lawyer." Penal law, a subject central to the legitimacy of state governance, must become more than a convenient source of hypotheticals on which beginning law students can cut their adversarial teeth.

      The teaching of substantive criminal law therefore should be extended beyond a single semester of the first year. At the very least, the course must be extended to cover two semesters, with the first semester dedicated to the general part and the second to the special part of criminal law. This year-long course should then be supplemented with advanced courses and seminars dedicated to specific topics in criminal law as well as to the further exploration of issues in the general and special parts that did not receive adequate attention in the introductory course.

      One class, for example, might be dedicated to a long ignored subject, the constitutional foundations and limits of substantive criminal law. Paradoxically, while the teaching of substantive criminal law in American law schools virtually ignores constitutional law, procedural criminal law classes deal with nothing but constitutional law. Today, a law student can take a wide selection of courses on criminal procedure without ever learning the first thing about the praxis of criminal procedure. Instead of teaching their students about the criminal process--mainly plea bargaining--our law schools every day create new courses dealing with the constitutional law of yet another aspect of an increasingly fictitious process culminating in a trial by a jury of one's peers. As the United States Supreme Court has continued to make constitutional law on this subject, with the obligatory fall out among the lower courts, so teaching materials on criminal procedure have evolved from a chapter in casebooks on constitutional or criminal law into their very own casebooks and, most recently, into multi-volume casebooks series.(9)

      Criminal procedure therefore must be wrested from the titillating, but merely marginally relevant, context of constitutional jurisprudence. Once this subdiscipline of penal law has shed its constitutional pretensions, the study of the criminal process can be subjected to principled analysis. Currently, there is no theory of the criminal process, apart from whatever increasingly dim light general constitutional theory sheds on some of its peripheral...