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Excerpted From: Shaun Ossei-Owusu, Criminal Legal Education, 58 American Criminal Law Review 413 (Spring, 2021) (75 Footnotes) (Full Document)


ShaunOssei OwusuThe American criminal justice system is in a season of public reckoning. A summer of protests--organized around anti-Black police violence--has shifted the views of a mainstream public that often ignored, disbelieved, or shrugged off advocates who argued that the criminal justice system is irredeemably biased. Legal academics responded immediately. Law school deans, centers, and professors issued statements and penned op-eds decidedly denouncing white supremacy and police brutality. These messages have important expressive functions and communicate values to the legal community and the broader population. Police are often the authors of state-sanctioned violence, so the focus on them was and continues to be appropriate. But legal academics' focus on police, along with a larger failure of introspection, obscures law schools' role in criminal justice inequality. This Essay provides a controversial corrective. I argue that law schools are key sites for the reproduction of our penal status quo, yet are relatively ignored in criminal justice scholarship. Legal education perpetuates some of the excesses of our criminal justice system.

Although the protests of summer 2020 generated new kinds of reflections on the criminal justice system, it is unclear that it will prompt changes in the criminal justice curriculum. This seems particularly true for first-year criminal law, as well as for bar courses such as criminal procedure and evidence--all three of which I describe as “criminal legal education.” Despite the very audible, social justice-inspired calls for criminal justice reform, the legal education of future prosecutors and public defenders is likely to remain constant. In fact, scholars have drawn attention to the race, class, and gender insensitivities of criminal justice teaching for decades. Although the nature of the criticisms has changed, the core critiques are still relevant today.

Accordingly, this Essay contends that criminal legal education plays a role in our penal status quo by way of its poor treatment of issues tied to race, gender, and poverty.

This argument builds on longstanding as well as recent critiques of legal education. Almost four decades ago, Duncan Kennedy argued that law schools reproduce hierarchy and social inequality. Assuming this is right--and available empirical accounts of legal education seem to suggest so this would mean that the core criminal justice courses taught in law school are not immune from this critique. The reproduction critique has been generally applied to the private sector but has compelling relevance to the training of future lawyers. This Essay draws the connection. More recently, Alice Ristroph's deep dives into the history of substantive criminal law--the only of their kind--put forth the closest and strongest message that this Essay builds upon: “American law schools, through the required course on substantive criminal law, have contributed affirmatively to the collection of phenomena commonly labeled mass incarceration.” Professor Ristroph's assessment is correct and is just one part of a larger narrative about legal education's reluctance to take full account of its role in our criminal justice crisis. This Essay picks up the baton and widens the discussion beyond substantive criminal law to illustrate how the engagement with race, poverty, and gender in criminal legal education contributes to the reproduction of our penal status quo.

This Essay proceeds in two parts. Part I particularizes the long-standing critique that legal education is not designed to challenge the status quo. Part II draws on the literature about law school socialization to underline the reproduction critique. The Essay concludes by tying the importance of curricular reform to the current shape of the criminal justice bureaucracy.

[. . .]

Legal education is an underexplored site for criminal justice reform. The few empirical studies on race and gender in prosecutorial offices indicate that both categories matter, yet these issues, along with poverty, amongst other categories, occupy undersized space in criminalization. It is no secret that diversity in the legal profession is an issue, but there is a related and arguably deeper issue of how future criminal justice practitioners-- irrespective of their race and gender--are socialized into understanding the relevance of those categories to their lawyering. The legal system tasks a relatively unrepresentative set of attorneys with prosecuting and representing criminal defendants in a world where race, gender, and poverty influence assumptions about crime as well its regulation. In the courses that are central to their legal education, they are socialized to believe that these categories are either irrelevant or additive in ways that may actually be the case in some instances, and not in others.

Calls for reform in legal education and the criminal justice system are not new. But there is a somewhat unique confluence of factors that make this third decade of the twenty-first century an opportune time to reimagine a system of legal education that shapes American punishment. There is an increasingly multi-generational, cross-ideological, and interracial recognition that the American criminal justice system is unjust. Law school leaders are making unprecedented statements about a racially biased, poverty-exacerbating criminal justice system. This is all occurring at a time when a global pandemic is making already squalid correctional facilities more dangerous.

Law professors are not the most obvious players in criminal justice reform, but they shape the educational landscape and policies of law schools. Law professors have the potential to shape the future entrants of the legal profession. Despite a new COVID-19-inspired educational landscape, some will continue business as usual and train future penal bureaucrats who reproduce the status quo. Others may make meaningful changes to how they teach in the criminal justice curriculum and map core legal lessons to the practical realities that have come under public scrutiny. These changes may slowly alter prosecution and defense norms and coincide with reform efforts occurring in legal practice. Pedagogical changes and educational choices are not foolproof. Nevertheless, professors who teach in the criminal justice curriculum cannot plead collective innocence when it comes to the status quo that people are increasingly rejecting.

Presidential Assistant Professor of Law, University of Pennsylvania Law School.

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