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Excerpted from: Luis Chiesa, The Model Penal Code, Mass Incarceration, and the Racialization of American Criminal Law, 25 George Mason Law Review 605 (Summer, 2018) (262 Footnotes) (Full Document)


LuisChiesaOn a muggy summer night in 1951, a white woman from Alabama took a stroll with her two daughters and a neighbor's child. She observed a black man walking behind them. Fearing that the man may want to harm them, the woman instructed the children to run to a neighbor's house and tell him to come meet her. When the man saw the neighbor, he turned back, walked down the street, and leaned against a stop sign. The woman watched the man remain by the sign for about a half hour, after which he left. The man was subsequently arrested on suspicion of rape. While in custody, the chief of police contended that the man confessed to intending to rape "the first woman that came by." Although the man denied having confessed to the crime, he was eventually charged and convicted of attempted assault with intent to rape. On appeal, he contended that his conduct did not amount to a punishable attempt. The Alabama Court of Appeals rejected his contention, deciding that a conviction for the offense charged required proof that the defendant "intended to have sexual intercourse with [the victim] against her will." It held that the jury could have found intent based on a consideration of the "social conditions and customs founded upon racial differences, such as that the prosecutrix was a white woman and the defendant was a Negro man."

If this case sounds familiar to the legally trained reader, it is because it narrates the facts of McQuirter v. State, which figures prominently in many criminal law casebooks. The standard account in the literature is that McQuirter is an example of a criminal law that has gone astray as a result of racial prejudices. In their popular casebook, Professors Sanford Kadish, Stephen Schulhofer, and Rachel Barkow explain that the conviction in McQuirter is troublesome because of "[t]he context of racial bigotry," which included a "black man, white woman" and a "small town in the South in the 1950s." In a similar vein, Professor Bennett Capers is troubled by the fact that "the proof required to convict [McQuirter] ... was in fact a lesser standard of proof than that which would have been required had [he] been white."

While the standard account of McQuirter is right to emphasize the role race played in the case, this Article will argue that it also misses an important part of the story. The McQuirter case is troublesome not only because of the way its outcome was infected by race, but also because it is one of the first examples of how the evolving law of attempts gave judges and juries increased opportunities for racial discrimination. To see how this is so, it is useful to compare McQuirter to another Alabama case featuring a black defendant accused of attempting to commit a serious offense against a white victim. In State v. Clarissa, a black slave was accused and convicted of attempting to kill two white men by poisoning their coffee with an allegedly noxious substance called "Jamestown Weed." On appeal, the Supreme Court of Alabama overturned the conviction. In doing so, it explained that "[a]n unexecuted determination to poison, though preparation was made for that purpose, ... will not be an attempt to poison within the meaning of the statute." The contrast with McQuirter is stark. For the McQuirter court, attempt liability followed inexorably from proof of the defendant's intent to commit the offense charged. In contrast, the Clarissa court held that firm intent and preparation were not enough to generate attempt liability. In addition to intent, the court required proof of conduct that went beyond mere preparation and that was apt for causing the harm contemplated by the offense.

What changed in the one hundred years between Clarissa and McQuirter? Why did Clarissa result in an acquittal while McQuirter resulted in a conviction? After all, both defendants were black, and both were accused of attempting to harm white victims in Alabama. If McQuirter was convicted because of racial bigotry--as the standard account of the case tells us--then why was Clarissa acquitted under similar circumstances? A clue that racial bigotry cannot entirely explain the different outcomes is that race relations were not significantly better in 1847 when Clarissa was decided than they were in 1951 when McQuirter was convicted. If anything, they were worse.

This Article submits that what changed in those one hundred years was not the prevalence of racial biases, but the underlying theory of crime and attempts. During this time, American criminal law shifted from the pattern of manifest criminality to the pattern of subjective criminality. The pattern of manifest criminality predicates punishment on the occurrence of acts that cause or imminently threaten to cause harm, rather than on the existence of blameworthy mental states. This was the approach taken in Clarissa, when the court refused to impose attempt liability solely on the basis of the defendant's malevolent will. Instead, it required that the actor's conduct come very close to causing the harm prohibited by the offense. In contrast, the pattern of subjective criminality justifies the punishment of seemingly inoffensive acts as long as they are carried out with a blameworthy mental state. This was the view of attempt put forth in McQuirter. Walking behind another person in a public thoroughfare is not an inherently wrongful act, let alone one that comes close to causing the harm inherent in the offense of rape. In spite of the ostensibly innocuous nature of McQuirter's acts, the court nevertheless found that he could be convicted of an attempted offense if he had formed the intent to rape the alleged victim.

Once McQuirter is placed in the broader context of the patterns of criminality that underlie American criminal law, one can see that what is most extraordinary about the case is not the racial bigotry that it reveals. After all, it is hardly surprising that a black man in the 1950s was unjustly convicted by an Alabama court of the attempted rape of a white woman. What is quite surprising, however, is that this kind of conviction was more difficult to obtain when Clarissa was decided one hundred years earlier. Given that racial bigotry was not less of a problem in the antebellum period than it was during the Jim Crow Era, there was something occurring in McQuirter that evaded a purely racial explanation. That "something" was the turn to subjective criminality that took place in the middle part of the last century. With its emphasis on punishing actors for their wicked will rather than for their harmful acts, the pattern of subjective criminality is particularly susceptible to generating a racist and repressive kind of criminal law. It is difficult to argue that the defendant in McQuirter came dangerously close to causing the harm contemplated by the offense of rape, as the pattern of manifest criminality would require. As Clarissa illustrates, this stringent conduct requirement often holds racial bigotry at bay, at least as far as the criminal law is concerned. In contrast, it is considerably easier to claim--as subjective criminality demands--that McQuirter malevolently intended to have sex with the alleged victim. Once the inquiry is framed in terms of a defective will, it is easier to infer the requisite blameworthy mental state on the basis of "social conditions and customs founded upon racial differences."

While the connection between subjective criminality and racism in American criminal law is not obvious, this Article will show that an inquiry into how the pattern of subjective criminality shaped German criminal law reveals the link quite clearly. Like American criminal law, the pattern of manifest criminality dominated German criminal law until the mid-twentieth century. The dominance of manifest criminality began to wane as the National Socialist regime started to ascend. Nazi scholars began arguing that crimes should be understood not as occurrences of harmful conduct, but instead as instances of treason that violated the loyalty that the offender owed to the German people. The notion of crime as treason or disloyalty generated a kind of criminal law that punished defective-will formation even if the intent was not put into action and therefore did not cause or immediately threaten to cause harm. Once crime was approached in this manner, a racialized and oppressive system of criminal justice quickly took hold under National Socialism. The result was a criminal law aimed at identifying and eliminating socially undesirable individuals, including homosexuals, vagrants, Gypsies, Jews, and anyone else who did not embody the National Socialist idea of a person.

Although the link between subjective criminality and a racialized criminal law was clear in Germany, the connection has mostly remained hidden in America, perhaps because the turn to subjective criminality in America was originally viewed as quite progressive. The twentieth century witnessed the ascent of a deterministic account of human conduct, pursuant to which criminal acts were viewed primarily as a product of environmental and psychological forces over which the actor had no control. Confronted with this view of human action, criminologists and criminal-law scholars gravitated towards treatmentist and correctionalist approaches to punishment that treated crime as a symptom of broader social and psychological ills. By situating criminal offenders within the broader contexts of society, mental illness, and the environment, these criminal theorists sought to modernize and humanize the criminal law. This view spread like wildfire in America, eventually finding its way into the Model Penal Code ("MPC" or "Code") and the many state criminal laws that were reformed in the wake of its publication.

But what these well-meaning progressive scholars did not envisage was that the ideas they advocated made it easier for racial bigotry to slip through the seams of criminal law doctrine, as it did in McQuirter. The outcome of the case is easier to justify if the purpose of criminal law is believed to be the identification and treatment of dangerous individuals. Black men who follow white women reveal themselves as threats, at least according to social mores of the South in the 1950s. The view was so widespread that it lay at the core of popular culture. An example was the wildly popular film King Kong, which "barely concealed [the] myth of animal-like, dangerous black men hard-wired to desire white women as trophies." If--as the drafters of the Model Penal Code would argue--crime is a product of social and biological forces beyond the actor's control, then an Alabama court in 1953 would feel comfortable upholding the conviction in McQuirter. It is not difficult to see how at the time McQuirter could have been portrayed as a black man who was "dangerous" and "hard-wired to desire" having sex with a white woman.

Finally, this Article will argue that the same allegedly benign pattern of subjective criminality that enabled racial bigotry to infuse the outcome in McQuirter has allowed the ruling classes in America to use the criminal law as a vehicle for controlling segments of the population that it deems threatening. Applying a definition of attempts that was in tune with a purportedly progressive approach to criminal law, the McQuirter court ended up flouting rather than advancing liberal ends. But subjective criminality has enabled much more than a repressive view of attempts. It is also essential to explaining the rise of possession offenses, which have so often been used to oppress blacks. Ultimately, then, McQuirter foreshadowed some of the perverse features that would later come to define the criminal law of modern time, including mass incarceration and the role that race has played in bringing it about. To reverse this trend, America should--like Germany after its failed experiment with National Socialism--eschew subjective criminality and return to a criminal law patterned on manifest criminality. Failing to do so would only send the nation further down the path of mass incarceration and racialization of American criminal law.

This Article proceeds in three parts. Part I fleshes out the patterns of manifest and subjective criminality.

Part II details the demise of manifest criminality and concomitant rise of subjective criminality in America and Germany, with the aim of revealing the hidden racism and oppressiveness of the pattern of subjective criminality. Part III shows that in spite of the progressive origins of the treatmentist views of crime and punishment that inspired the drafters of the Model Penal Code, the pattern of subjective criminality that these views ushered in contributed to the rise of mass incarceration and other discriminatory features of our criminal justice system. Much like subjective criminality facilitated the Nazification of German criminal law in the 1930s, so too has subjective criminality contributed to the racialization of American criminal law.


[. . .]


Justice Oliver Wendell Holmes famously said, "The life of the law has not been logic: it has been experience," and the German experience reveals that the pattern of subjective criminality is particularly susceptible to being used by authoritarian governments as a way of weeding out unwelcome elements of society. As we near the third decade of the twenty-first century, we see that the pattern of subjective criminality that inspired the Model Penal Code and the legislation enacted in its wake produces similar results. The ruling classes use expanded inchoate crimes and new possession offenses modeled on subjective criminality with great effectiveness to oppress and harass black males in America. The progressive jurists who advocated the turn to subjective criminality did not intend to contribute to racialized mass incarceration. Nevertheless, this outcome is one of the natural and predictable consequences of an approach to criminal law that--like the one underlying the Model Penal Code--focuses on curbing dangerous actors rather than on preventing harmful conduct. By revealing the hidden tendency of subjective criminality and the Model Penal Code to generate more authoritarian forms of governance, this Article hopes that those who continue to unwittingly advocate the use of this pattern come to see the dangers inherent in so doing.

Professor of Law and Director of the Buffalo Criminal Law Center, University at Buffalo Law School, The State University of New York.

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