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Since the killing of George Floyd, a national consensus has emerged that reforms are needed to prevent discriminatory and violent policing. Calls to defund and abolish the police have provoked pushback, but several cities are considering disbanding or reducing their police forces. This Essay assesses disbanding as a reform strategy from a democratic and institutionalist perspective. Should localities disband their police forces? One reason to do so is that discriminatory police departments are often too insulated from democratic oversight to be reformed. But can localities succeed in disbanding and replacing their forces with something better? Unfortunately, the structural entrenchment of sheriffs’ offices and municipal police forces insulates them against such attacks as well. To challenge police power, localities may have to disband, and to disband, localities may have to alter the legal structure of state and local government. Reformers must use rare moments of mobilization like this one to overcome the misguided efforts of past reformers to lock in their victories. Successful reformers can best avoid repeating such mistakes by trusting in the democratic experiment and concentrating supervision of law enforcement at one level, the most local.

Although criminal jurisdiction is usually exercised by governments, offences can also be proscribed by international law, and punishment can be imposed by international tribunals. This article critically examines the legitimacy of such exercises of international criminal jurisdiction. It reasons that criminal law can plausibly be justified as a cooperative institution that achieves the public good of a rule of law, with its attendant benefits of social peace and equal dignity of persons. It then argues that such a beneficial rule of law requires a punishing authority with the executive capacity to protect those it claims to regulate. It would follow that criminal prohibitions may not be justifiable if they cannot be enforced systematically. Because the international legal system generally lacks the executive capacity required for a rule of law, the article suggests that international criminal punishment is justifiable as supportive of a rule of law only in rare circumstances. Finally, the article considers whether an alternative expressive rationale can, nevertheless, justify occasional prosecutions as useful in legitimizing international humanitarian norms. It questions whether the expressive benefits of such prosecutions can outweigh the expressive risks of promising protection the international legal system cannot deliver.

America's peculiar institution of felony murder liability has long been criticized as cruel and pointless, particularly as applied to defendants who did not kill. This study of felony murder arrest and disposition in New York reports large racial disparities, particularly for those convicted who did not kill. It is one of the first to examine the behavior punished, revealing that half of those convicted were charged as accomplices, not alleged to have killed. Many of those alleged to have caused death appeared to do so inadvertently. And almost thirty percent of all people convicted of felony murder were teens with diminished culpability. Thus, arguably, disproportionate punishment is the norm. The study also reports substantial racial disparities in arrests and convictions for felony murder, and that these were substantially higher among those convicted as accomplices. Finally, the study reveals hundreds of arrests of almost exclusively Black and Latinx people for the fictitious crime of attempted felony murder. In New York, it seems, the worst of felony murder is reserved for defendants of color.

The felony murder doctrine is one of the most widely criticized features of American criminal law. Legal scholars almost unanimously condemn it as irrational, concluding that it imposes punishment without fault and presumes guilt without proof. Despite this, the law persists in almost every U.S. jurisdiction. Felony Murder is the first book on this controversial legal doctrine. It shows that felony murder liability rests on a simple and powerful idea: that the guilt incurred in attacking or endangering others depends on one's reasons for doing so. Inflicting harm is wrong, and doing so for a bad motive—such as robbery, rape, or arson—aggravates that wrong. In presenting this idea, Guyora Binder criticizes prevailing academic theories of criminal intent for trying to purge criminal law of moral judgment. Ultimately, Binder shows that felony murder law has been and should remain limited by its justifying aims.

Prosecutors face criticism for prosecuting too many minority members and too few police. Recently, some reformers have won prosecutorial elections by pledging to change these priorities. Yet scholars have identified two impediments to police prosecutions. First, county prosecutors often answer to suburban voters indifferent to the excesses of city police. Second, prosecutors depend on those police to investigate their cases and to endorse them as effective. This Article argues that the influence of residents and police on prosecutorial decisions depends on the political geography of a prosecutor's office. As a result, whether a prosecutor's office is \"city-based,\" \"regional,\" or \"state-appointed\" shapes a prosecutor's motivation and decision to prosecute police. Examining nationwide data on charging police, we find that prosecutors are indeed more likely to prosecute police when a greater proportion of their constituents are served by the same police department. This effect is further amplified at higher levels of Black (but not Hispanic) residency. Case studies of specific prosecutorial districts suggest an explanation for this finding. Urban party organizations and Black civil society networks offer a political infrastructure for mobilizing residents against the abuses of police departments. The degree and impact of this mobilization is greater when more of the prosecutor's constituents fall under the same police jurisdiction, especially when the prosecutor relies on the same political infrastructure to win elections.

The felony murder doctrine is one of the most widely criticized features of American criminal law. Legal scholars almost unanimously condemn it as irrational, concluding that it imposes punishment without fault and presumes guilt without proof. Despite this, the law persists in almost every U.S. jurisdiction. Felony Murder is the first book on this controversial legal doctrine. It shows that felony murder liability rests on a simple and powerful idea: that the guilt incurred in attacking or endangering others depends on one's reasons for doing so. Inflicting harm is wrong, and doing so for a bad motive—such as robbery, rape, or arson—aggravates that wrong. In presenting this idea, Guyora Binder criticizes prevailing academic theories of criminal intent for trying to purge criminal law of moral judgment. Ultimately, Binder shows that felony murder law has been and should remain limited by its justifying aims.

Prosecutors face criticism for prosecuting too many minority members and too few police. Recently, some reformers have won prosecutorial elections by pledging to change these priorities. Yet scholars have identified two impediments to police prosecutions. First, county prosecutors often answer to suburban voters indifferent to the excesses of city police. Second, prosecutors depend on those police to investigate their cases and to endorse them as effective. This Article argues that the influence of residents and police on prosecutorial decisions depends on the political geography of a prosecutor’s office. As a result, whether a prosecutor’s office is “city-based,” “regional,” or “state-appointed” shapes a prosecutor’s motivation and decision to prosecute police. Examining nationwide data on charging police, we find that prosecutors are indeed more likely to prosecute police when a greater proportion of their constituents are served by the same police department. This effect is further amplified at higher levels of Black (but not Hispanic) residency. Case studies of specific prosecutorial districts suggest an explanation for this finding. Urban party organizations and Black civil society networks offer a political infrastructure for mobilizing residents against the abuses of police departments. The degree and impact of this mobilization is greater when more of the prosecutor’s constituents fall under the same police jurisdiction, especially when the prosecutor relies on the same political infrastructure to win elections.

In “The Changing Market for Criminal Casebooks,” Jens David Ohlin offers an appreciative, but nevertheless critical review of established criminal law casebooks. He then introduces his own offering by describing “a vision for a new casebook” that will better serve the needs and wants of contemporary students. Ohlin begins with the arresting claim that criminal law professors are passionate about their subject because they are fascinated by human depravity. Then, throughout his essay, he stresses efficient, consumer-focused delivery of doctrinal instruction as the defining task of a successful casebook. Moreover, he argues, casebooks should devote less attention to academic theories and articles, to normative questions about what the law should be, or even to interpretive questions about what the law is. Prevailing rules should be quickly summarized by the editor, so that students can focus on learning the skill of applying these rules to challenging fact situations. While Ohlin raises important issues of pedagogical method, his own announced pedagogical method would translate criminal law into technical training in pragmatic lawyerly skills. As a result, he offers readers something less than a “vision” of what criminal law is about, why it is worth learning, and what a criminal law casebook should teach. In this Response, we address these unanswered questions, identifying those issues of justice and politics that we believe make criminal law interesting and important. Further, we argue that even if doctrinal instruction is the goal, achieving it requires consideration of political philosophy, legal and intellectual history, and empirical research. Moreover, we argue that the indeterminacy of doctrine on some fundamental questions means that criminal lawyers often cannot avoid invoking normative theory in fashioning legal arguments. The discretion accorded many actors in the criminal justice system means that fundamental questions of justice are also highly practical questions. Finally, we argue that the high stakes of criminal law and its contingency on democratic politics make criminal law teaching as much a matter of civic education as of technical education.

This Article contextualizes the police defunding movement and the backlash it has generated. The defunding movement emerged from the work of Black-led activists to reassert democratic control over policing and shift resources to social service agencies and other institutions serving community needs. In reaction, states have enacted anti-defunding bills checking local government reduction of law enforcement budgets. These anti-defunding measures continue a long tradition of state and federal control over local police spending, subverting local democratic control over police agencies. These limits include direct legal constraints on local police spending and indirect constraints through grants and authorization to collect fines, fees, and forfeitures. These mechanisms form a ratchet, bribing local governments to increase police spending and then mandating them to maintain it, at the eventual cost of cutting social services. This leaves cities little choice but to try to police their way out of the problems of poverty and inequality. Thus, constraints on local police funding help explain the decades-long shift of resources from social welfare to law enforcement. The problem revealed by the defunding controversy is not just the size of police budgets but also the perverse process determining those budgets. Before police agencies can be right-sized or reformed, police budgeting must be put in the hands of the people policed.

In this book, the first to offer a comprehensive examination of the emerging study of law as literature, Guyora Binder and Robert Weisberg show that law is not only a scheme of social order, but also a process of creating meaning, and a crucial dimension of modern culture. They present lawyers as literary innovators, who creatively interpret legal authority, narrate disputed facts and hypothetical fictions, represent persons before the law, move audiences with artful rhetoric, and invent new legal forms and concepts. Binder and Weisberg explain the literary theories and methods increasingly applied to law, and they introduce and synthesize the work of over a hundred authors in the fields of law, literature, philosophy, and cultural studies. Drawing on these disparate bodies of scholarship, Binder and Weisberg analyze law as interpretation, narration, rhetoric, language, and culture, placing each of these approaches within the history of literary and legal thought. They sort the styles of analysis most likely to sharpen critical understanding from those that risk self-indulgent sentimentalism or sterile skepticism, and they endorse a broadly synthetic cultural criticism that views law as an arena for composing and contesting identity, status, and character. Such a cultural criticism would evaluate law not simply as a device for realizing rights and interests but also as the framework for a vibrant cultural life.