Gallini, Brian R.

KnowledgeBank at OSU

Teaching Federal Criminal Law:Survey Says ... "It's Hard"Brian R. Gallini*Consider my exchange with a professor from another law school back in fall2009 while we were both attending a conference:Professor Who Shall Remain Anonymous [PWSRA]: What are youteaching this year?Me: X, Y, Z, and Federal Criminal Law for the first time.PWSRA: Oh, Federal Criminal Law ...Me: No good?PWSRA: That's a really hard class to teach. I tried teaching it for a fewsemesters, but I don't any longer.That about sums it up: federal criminal law is hard. It's hard material toteach and hard for students to learn. Initially, there's a honeymoon period forstudents-and why not? After all, depending on your course coverage, the classtells tales of prominent defendants and their fancy attorneys taking on the FBI,DEA, and ATF (sometimes all in the same case!).'But even that observation raises the question: what will (or should) youcover? There are "several thousand" federal crimes,2 but only 2,100 minutes in a3three-credit course. Apart from course coverage, the honeymoon period ends; afew classes into the material, students realize that they are in for some humblingchallenges. Most prominent in my mind is the statutory interpretation challenge.More basically, though, is the challenge of simply reading the statutes-federalAssociate Professor of Law, University of Arkansas-Fayetteville School of Law.E.g., United States v. Savage, No. 07-550-03, 2013 U.S. Dist. LEXIS 14877, at *6 (E.D.Pa. Feb. 4, 2013).2 Thomas J. Maroney, Fifty Years of Federalization of Criminal Law: Sounding the Alarmor "Crying Wolf'", 50 SYRACUSE L. REV. 1317, 1319 (2000).2012-2013 ABA STANDARDS AND RULES OF PROCEDURE FOR APPROVAL OF LAW SCHOOLS25-26, Standard 304, Interpretation 304-4 (2012),http://www.americanbar.org/content/dam/aba/migrated/legaled/standards/20072008StandardsWebContent/Chapter_3.authcheckdam.pdf.795OHIO STATE JOURNAL OF CRIMTNAL LAWcriminal statutes are long, and longer still to students and professors alike when4compared to those featured in the first year criminal law course.In this brief essay, I humbly offer some thoughts to combat these difficulties.I proceed specifically by offering for your consideration some observations on (1)what to cover in the course, (2) how to keep the material interesting, and (3) someclosing considerations.I. WHAT TO COVER?This is a tough question to answer. Everyone likely has their own approach,but I recently began teaching to my jurisdiction's enforcement priorities. Asstudents come to learn, U.S. Attorney offices are guided by the Administration'senforcement agenda (i.e., nationwide enforcement priorities) followed by their ownlocal enforcement priorities. Sometimes the two undoubtedly coincide; thePresident's top enforcement priority is international terrorism as it also is, Isuspect, for the Southern District of New York. But the same is not true for myhome state, Arkansas. Although the Western District of Arkansas has one attorneyassigned to terrorism investigations, it is more concerned with stopping domesticterrorism alongside limiting white-collar crimes, drug offenses, and crimes againstchildren. That makes good sense given that commission of an international terroroffense is unlikely in Arkansas; federal interest offenses of a more local nature,therefore, demand heightened attention.My point is this: federal criminal enforcement varies depending ongeography. I therefore adjust my syllabus structure to correspond with theenforcement priorities of the jurisdiction where I teach. Doing so has at least threetangible benefits for students. First, it impresses upon all of them that our semesteris designed to examine one actual approach to federal criminal enforcement-theylearn in doing so that enforcement priorities can change quickly. Second, for thosewho will enroll in our school's U.S. Attorney externship, it is easier for them to"hit the ground running" on their first day. Finally, in my anecdotal experience,our students who accept federal clerkships have a superior understanding not justof federal criminal issues generally, but of how the precise statute at issue fits inthe broader enforcement whole.Let me close this brief section by asking that, even if I have not persuadedyou to teach to your jurisdiction's enforcement priorities, please considerdedicating even a small section of your course to crimmigration.5 It is next to4 For example, a commonly taught statute, 21 U.S.C. § 841 (the core federal drug offense) isover 4,000 words in length. Title 18 U.S.C. § 922, governing prohibited firearms, is nearly 9,000words. By contrast, Model Penal Code § 2.02 addressing mens rea approaches 800 words and § 5.01criminalizing attempt is just under 600 words.s By "crimmigration," I mean the immigration consequences of a criminal action orconviction. See generally Padilla v. Kentucky, 559 U.S. 356, 367 (2010) (holding that "counsel mustadvise her client regarding the risk of deportation"); see also generally Andrew Moore, CriminalDeportation, Post-Conviction Relief and the Lost Cause of Uniformity, 22 GEO. IMMIGR. L.J.796 [Vol 11:2SURVEYSAYS... "IT'S HARD"impossible in modem federal criminal practice to ignore the immigrationconsequences of a guilty plea or guilty verdict.6 Although federal defenseattorneys may not realistically grow into immigration law experts, even a cursoryawareness of immigration consequences will help raise the quality of the defensebar.7 The development of that awareness must start in law school.II. HOW To KEEP THINGS INTERESTING (FOR You TOO!)?When material is challenging, the semester can get long-for the students,and you too. Here are some brief suggestions to help you beat back the possibilityof doldrums. First, consider a speaker series. In the past, I have invited, and ourclass has heard from, the U.S. Attorney for the Western District of Arkansas, theArkansas Federal Public Defender, members of the FBI, and agents from theImmigration and Customs Enforcement-among other engaging speakers. Theseaccomplished professionals command the students' attention, break up thesemester, and help place the world of federal law enforcement squarely before thestudents. If you have organized your syllabus around your jurisdiction'senforcement priorities, I suspect you will find that students are particularlyenamored with these speakers.Second, consider offering the students additional opportunities to participatein class. Several years ago, I began a "student presentation series" in an effort toreduce student stresses associated with having their grade solely determined by thefinal exam. The presentation series, which is wholly optional, provides a pair ofstudents per presentation with the opportunity to lead the class in a review-likediscussion after we complete blocks of material. In leading the discussion,students are encouraged to present relevant newspaper articles detailing caseswherein the defendant was charged with the same crime we just covered in class.Finally, consider time for "the news." At the beginning of the semester, Imake this offer: email me any news article you encounter that addresses a class-related topic and I will make time for us to discuss it in class. I have found thisoffer beneficial for a number of reasons. To begin with, it enhances student buy-in. But it also helps to keep me current. Students invariably encounter fascinating665, 667 (2008) (defining "crimmigration" in part to mean "the confluence of immigration andcriminal law").6 Padilla, at 376 ("The weight of prevailing professional norms supports the view thatcounsel must advise her client regarding the risk of deportation.").Cf Darryl K. Brown, Why Padilla Doesn't Matter (Much), 58 UCLA L. REv. 1393, 1415(2011) (asserting that Padillia will at least "modestly improve the legal representation" thatdefendants receive).8 We have also enjoyed hearing from speakers who work as agents with the ATF and theDEA. Although I do not discuss it above, I might also suggest a field trip to your local federalcourthouse; students tremendously enjoy seeing how what they are learning works inside thecourthouse walls.2014 797OHIO STATE JOURNAL OF CRIMINAL LAWfederal investigations that I am not familiar with. Moreover, it helps consistentlyillustrate to students how relevant the materials we study are on a day-to-day basis.III. ANY OTHER THOUGHTS?Yes, I am glad you asked. This class moves. What I mean is that the state ofthe federal criminal law is constantly changing-more so than any other course Iteach. That can understandably make things difficult on casebook authors. Whenthat happens, supplements to the casebook are published and a revised casebook issure to follow shortly thereafter. In my experience, students hate supplements.Casebooks are, in their defense, expensive enough already.I therefore do two things each time I teach the course. First, I provide thestudents a statutory supplement that includes every crime we will study thatsemester. In it, I highlight language in the statutes for the students in an effort notonly to draw their attention to the relevant buzzwords, but also to get themwondering why that language gets highlighted. After the statute's text, I alsoprovide to students a list of the elements of the crime-something I spend a lot oftime on in class. Trial courts of course always instruct juries that the prosecutionbears the burden to prove each element of a crime beyond a reasonable doubt.9Given that students are often justifiably confused about what constitutes an"element" of a crime, this seems to be time well spent.Second, I provide students a readings supplement. I never ask them topurchase a casebook's supplement. I prefer to do the work myself excerpting thenew relevant cases or statutes, rather than to ask them to spend additional money.Students appreciate this effort but, more importantly, putting that extra work inallows me to make choices that perhaps the casebook authors did not make.Leaving in or deleting a case later becomes that much easier.CONCLUSIONThe federal criminal law course is simultaneously a pleasure and a challengeto teach. Throughout the semester, I still find myself astonished by the power ofthe federal government and amused by the wide array of colorful defendants. Fortheir part, students often are shocked by the reach of federal jurisdiction alongsidethe power of federal drug mandatory minimum sentences. Collectively, theexperience of teaching a federal criminal course differs from so many other lawschool courses that focus on the criminal law. I hope my musings on teaching thissubject help you in some small measure to enhance your course.9 See, e.g., Burden of Proof Connecticut Criminal Jury Instructions 2.2-2, JuD.CT.GOV,http://www.jud.t.gov/Jl/criminal/part2/2.2-2.htm; Information, Plea and Burden of Proof UtahCriminal Jury Instructions CRI02, UTCOURTS.GOV,http://www.utcourts.gov/resources/muji/inc_list.asp?action=showRule&id=allcrim (last visited July30, 2013); Standard Criminal 5(b)1: Burden of Proof ARIz. CRIM. JURY INSTRUCTIONS 16-17,http://www.azbar.org/media/58832/2-standard-criminal-revised_2013.pdf.798 [Vol 11:2

Teaching Federal Criminal Law: Survey Says..."It's Hard"

https://kb.osu.edu/bitstream/1811/73463/1/OSJCL_V11N2_795.pdf

Teaching Federal Criminal Law: Survey Says..."It's Hard"

Abstract

Similar works

Full text

Available Versions

KnowledgeBank at OSU