Cross-posted at the American Constitution Society for Law and Policy’s blog
There used to be an old saying about legal education in America: Law school doesn’t prepare you to take the bar exam and the bar exam doesn’t prepare you to be a lawyer. I don’t know if that is still true or not, although I suspect it is. It sure was 25 years ago when I graduated from law school, took the bar exam, and then began practice as a baby lawyer in Denver.
Next week I will be in my beloved Boston—what, no World Series game at Fenway?—to speak to law school students, professors and alumni, and I cannot help thinking that there is one critical course that is missing from the curriculum at even the most forward-thinking law schools across the country. Too many of those schools teach students about what they wish the law to be rather than what the law really is.
First-year students take criminal law, and criminal procedure, and they learn about mens rea and the Model Penal Code. What’s missing from law school curricula, however, is a required course that ought to be titled: “Criminal Injustice.” The course would track the countless ways in which our nation’s justice systems fail to provide justice to countless Americans. Only such a class would adequately prepare new lawyers—whether they end up being prosecutors, defense attorneys, judges, or not—for the reality of what’s happening in the nation’s courtrooms, prisons, jails, and police stations.
The imaginary syllabus I’ve conjured almost writes itself. It would begin with a section on police training, recruitment, and unions so that students could better understand why police reform is so hard to achieve. We’d also address in this section the culture of prisons, and how they are so often staffed with overworked and underpaid men and women, to understand why our prisons are a national disgrace. The culture of silence, of a lack of accountability and transparency, helps explain why there are so many excessive force cases, and wrongful convictions, and documented instances of abuse and neglect in confinement.
The next section would be tackle police-civilian interactions at the intersection of the fourth and fifth amendments to the Constitution. How stop-and-frisk came and went. How “broken windows” succeeded and failed. We’d discuss what happens when there is an arrest—not just about how meaningless the constitutional right to counsel has become for millions of Americans but about how jurisdictions all across the country implement predatory bail systems that have created a new generation of debtors’ prisons.
After the arrest comes the trial. In this section students would learn about how judges have allowed prosecutors to determine sentences by gaming the system of plea bargains, which are prevalent today and which deprive defendants of their constitutional right to jury trials. We’d learn about what the “meet and greet” plea means. Prosecutors, almost always white men, have virtually unfettered discretion to decide whether to charge someone, when to charge them, what to charge them with, whether to reduce charges or use an informant, and whether to seek enhanced sentencing. Students here would learn about the absolute immunity prosecutors have that shields them from any legal accountability for the misconduct in which they engage.
The class also would learn about the Supreme Court’s abdication of its obligation to ensure that all criminal defendants get competent representation. We also would learn about jury bias, and flaws in expert testimony, and revelations about the inaccuracies of eyewitness identification. There would be a section on judges. How judicial elections harm the ability of litigants to get fair trials. How often appellate judges abdicate their sworn oath to fully and fairly evaluate the work of trial judges. How the values of “certainty” and “finality,” which law students learn about, are elevated over the values of accuracy and fairness in criminal trials.
After trial there is usually a conviction and an appeal. Here students would learn about how the Supreme Court and Congress have undermined the Great Writ, the writ of habeas corpus, to the point that federal judges feel compelled to permit wrongful convictions to stand, even in capital cases where the injustice is manifest. They would learn about how few convicted defendants get any valuable appellate work performed on their behalf by overworked, underpaid, inexperienced public defenders. They also would learn how limited the right to federal appeal, and the federal right to counsel, is in the first place.
We also would have a class on what’s known as the procedural default doctrine, which precludes appellate and post-conviction courts from even considering substantive issues if the defendant’s lawyer did not make the right objection at the right time, or cite the right case, or if she raised the issue in one court but not another, or if she missed a deadline for making the objection or filing a pleading. Most students would come into class thinking that appellate courts were designed and operate to fix mistakes at the trial level. The truth is they far more often rubber-stamp flawed convictions.
After the conviction there is a sentence. So we would have a section on the racist history of sentencing laws (indeed, one could teach an entire course on the racial history of the nation’s criminal justice systems, from slavery to Jim Crow to the war on drugs). We’d look at how easy it is for state legislators to pass punitive laws at the request of prosecutors or police or corrections officials and how difficult it is for politically powerless minority groups to push back against those laws. Imagine what a class on over-criminalization would sound like. Or a class on the rise of the victims’ rights movement.
We’d have section on the death penalty, as well, and why it has failed in its latest incantation since being reinstated by the Supreme Court in 1976. We’d have a section on life-without-parole sentences and on the self-defeat of lengthy juvenile detention. And we would surely invite Robert Ferguson to come talk to students about America’s obsession with harsh punishment and retribution. Paeans to the rule of law almost always forget that we are a vindictive, judgmental nation when it comes to criminal justice.
Which brings us to prisons. One could teach an entire course on what’s wrong with American prisons. In our “Criminal Injustice” course there would be a section on the rise of private prisons and what economic incentives to mass incarceration mean to the millions of people caught up in it. There would be a section on health care in prison, which often is non-existent, and one on mental health treatment, which often exacerbates the illnesses that inmates have when they arrive in detention.
Finally, there would be a section on privatization more generally, how private probation companies act to keep ex-offenders in a seemingly endless loop of debt and recrimination, charging men and women already struggling to pay their bills (and hold a job) unreasonable fees for drug testing, courses on anger management, drug counseling and the like. Even after inmates serve their time they are burdened by predatory economic forces within our justice systems.
A few years ago, J. Harvie Wilkinson, the esteemed 4th U.S. Circuit Court of Appeals judge, wrote that the nation’s criminal justice system is “doing remarkably well.” He was wrong. And it does law students a disservice to teach them the nuts and bolts of criminal law, and criminal procedure, without also teaching them the ways in which the "system” is systematically failing to ensure that constitutional norms and standards are being applied. I look forward to the day when this course is a staple at law schools around the country.
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.
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