Angela Harris –
In the introduction to Chapter 1 of the casebook that Cynthia Lee and I edit, we tell students that the first-year course on criminal law answers the question, “What, in our society, makes a crime, and why?” We suggest that the answer involves “culture,” and that we therefore intend to approach criminal law as a “system of cultural meaning.” In 1974, though, William Chambliss offered a very different perspective:
The criminal law is . . . not a reflection of custom (as other theorists have argued), but is a set of rules laid down by the state in the interests of the ruling class, and resulting from the conflicts that inhere in class structured societies; criminal behavior is, then, the inevitable expression of class conflict resulting from the inherently exploitative nature of the economic relations. What makes the behavior of some criminal is the coercive power of the state to enforce the will of the ruling class; criminal behavior results from the struggle between classes whereby those who are the subservient classes individually express their alienation from established social relations.
Tasked with imagining a criminal law class taught from an LPE perspective, I’m going to focus on the points of connection between our cheery, “It’s all culture!” and Chambliss’s “it’s all alienation!” I’ve thought of four themes to structure such a course: (1) how political and economic power shapes the production of “crimes” and “criminals” in (our) society; (2) the tensions between market and state governance in a capitalist democracy; (3) the relationship between economic analysis and other forms of analysis, including the psychological; and (4) the political economy of the criminal justice system itself.
First, where do crime and criminals come from? Chambliss rejects the story of crime conventionally told by tough-on-crime politicians, authoritarian leaders, and many a citizen: Some people are “good” people (i.e., “us”), others are “bad” people (i.e. “criminals”), and the job of criminal law is to make sure “they” are identified and punished for preying on “us.” Instead, drawing on data from Nigeria and the United States, Chambliss argues that pretty much everybody in both societies violates criminal codes at some point or another. What distinguishes the people who go to jail for their crimes from the people who don’t is political and economic power. More broadly, Chambliss argues that in a capitalist society, crime policy is not intended to “prevent” or “stop” crime, but rather to manage it.
Our book doesn’t disagree, but it tries to complicate the story. From Chapter 1 to the end of the book, the readings we have selected suggest that race and racism are central to American criminal justice. Our book also suggests that heteropatriarchy has shaped, among other things, the law of sexual offenses, the law of homicide (for example, “heat of passion” manslaughter), and the law of defensive force (for example, the “true man” rule). What Cynthia and I call “culture,” in other words, someone else might call “structures of domination.” And this brings us to an old question: Is class conflict the only thing that determines the content of law in a capitalist society? In addition to managing crime through unequal enforcement, criminal justice in a capitalist society manages crime through defining what is criminal in the first place. Chambliss puts it baldly: “Acts are defined as criminal because it is in the interests of the ruling class to so define them.” To test this assertion in a criminal law class, we might discuss the current administration’s plans to roll back environmental regulations on mercury, and the fossil fuel industry’s decades-long attempt to obfuscate the science of climate change. These actions will predictably cause preventable illnesses and deaths. Moreover, they are being taken with mens rea: the actors pursuing them are acting, if not with the “purpose” to cause death or injury, then likely with “knowledge” and certainly “recklessly.”
What makes these public and private actions “not criminal?” An LPE criminal law class might look at the rules of corporate responsibility, which make it inherently difficult to prosecute or punish a capitalist enterprise. We might juxtapose this law of corporate crime with the law of conspiracy and complicity, which makes it ridiculously easy to prosecute and punish collective actions taken by “street” criminals. We might examine the basic elements of a crime: mens rea, actus reus, and (for result-oriented crimes) causation, to see how they function as filters to make some actions “crimes” and others “business decisions” or “policymaking.” Here, too, though, things are more complex than the Chambliss position might suggest. For instance, the doctrine of strict criminal liability – developed by the Court explicitly in response to industrial production in a capitalist society – ignores mens rea in a way meant to facilitate, not prevent, the punishment of “white-collar” crime. Does strict liability for “public welfare” offenses function to benefit the “ruling class”? Does it fall under Chambliss’s under-explored qualification that “the law will also reflect conflict between members of the ruling class (or between members of the ruling class and the upper class ‘power elites’ who manage the bureaucracies)”?
This raises another familiar issue: the “relative autonomy” of law in a capitalist democracy. For example, two different cases in our book examine the criminalization of homelessness: Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006) and In re Eichorn, 69 Cal.App.4th 382, 81 Cal. Rptr.2d 535 (4th App. Dist. 1998). The criminalization of poverty fits Chambliss’s theory of criminal law as a tool of the capitalist class perfectly. But what about the fact that poor people’s advocates sometimes win? To consider this question further, we might acknowledge the multiple spheres of governance, sometimes competing and sometimes complementary, regulated by the legal system. Melissa Murray has noted, for instance, a complementary relationship between family law and criminal law. Related to this fragmentation of governance is a pattern of deference to family ties in the administration of criminal law. A second manifestation of plural governance within the legal system is the distinction between civil and criminal law, including the distinction between “crimes” and “torts.” The assertion that law is the result of a two-body struggle between those who own the means of production and those who don’t doesn’t account for these complexities. A course on criminal law from an LPE perspective, though, might begin to tell a more satisfying story.
A second theme of an LPE class on criminal law might be the tensions between state and market governance in a capitalist democracy. Consider, for instance, so-called “market-dependent crimes.” Chambliss looks at data on bribery of public officials and on crimes stemming from “shadow economies”: illegal gambling, buying and selling liquor outside the state-mandated licensing system, running an illicit taxi service, and prostitution. In both Ibadan, Nigeria and Seattle, Washington, he finds the existence of crime syndicates and a practice of payoffs to the police, resulting in enforcement of criminal laws against the powerless but not the powerful. For Chambliss, the point of this finding is to reiterate that crime is not confined to the lower classes, only enforcement. We might add that from an LPE perspective, market-dependent crimes present a contested border zone between market regulation and state regulation. In an article we unfortunately couldn’t include in our casebook for copyright reasons, Stuart Green demonstrates that the rationales for punishing drug use and sex work have wavered back and forth over the years. Sometimes prohibitions are justified on the grounds that these activities, though consensual, are “immoral” (Just say no!); other times, policymakers justify prohibition based on the social chaos they are said to cause. Green suggests that both arguments, though flimsy, gain plausibility when attached to social panics about race. Groups as various as Chinese opium smokers, Mexican marijuana smokers, and black crack addicts have been thought to pose special dangers of violence, especially sexual violence against white women. Racism, then, can tip the balance in contests between state and market regulation.
A third theme that might appear in an LPE course on criminal law has to do with the relationship between “economic” analysis and the psyche. Chambliss’s doctrinaire Marxism shares with mainstream law and economics the desire to believe in Rational Man, and a seeming distaste for the emotional, the non-conscious, and internal conflict. So, for example, Chambliss states, “Criminal and non-criminal behavior stem from people acting rationally in ways that are compatible with their class position. Crime is a reaction to the life conditions of a person’s social class” (152). He dismisses psychological investigation into criminality as tedious, unending, and not fruitful. But this is where, I think, Cynthia’s and my notion of “culture” can be helpful. It is not necessary to choose between homicide as “the rational response to labor exploitation and inequality in a capitalist heteropatriarchy” and homicide as “the result of bipolar disease.” To fully understand “crimes against the person,” we need to look more closely, I think, at the psyche as partially constituted by the social world, and thus influenced by a series of overlapping, interacting stereotypes and ideologies of power, threat, and harm. Consider, for instance, the fragility of conventional masculine identity to threat, and its reliance on violence for validation. Or, how we as a society deal with children, treating them alternately as innocent cherubs and as dangerous monsters (“crack babies”), but in any case leaving them utterly vulnerable to, and powerless against, all forms of control across all social spheres. Finally, consider the fear of and desire for the black man written and overwritten into our psyches, needing only a spark for explosion into violence.
Fourth and finally, in keeping with most other casebooks on substantive criminal law, ours puts the workings of the criminal justice system itself on the margins. We tell students to take a course on criminal procedure or prison law to learn about the political economy of criminal justice. But I’m pretty sure that’s a cop-out. Chambliss states: “Crime reduces surplus labor by creating employment not only for the criminals but for law enforcers, locksmiths, welfare workers, professors of criminology and a horde of people who live off of the fact that crime exists.” A contemporary form of this point is the abolitionist concept of the “prison-industrial complex.” Beyond the wealth that prisons create and destroy, an LPE look at the criminal justice system might examine the unequal funding of prosecutors versus defense attorneys; the economic consequences of misdemeanor offenses and infractions (usually referred to as “collateral” consequences); felon disenfranchisement; and the political benefits of being “tough on crime.” In a series of previous posts, I’ve explored some of the ramifications of municipal dependence on criminal fines and fees for criminal justice. The LPE course on criminal law, unlike a traditional criminal law course, would not leave these issues on the sidelines.
Angela Harris is the Distinguished Professor of Law, Boochever and Bird Endowed Chair for the Study and Teaching of Freedom of Equality at UC Davis School of Law.