Deep thoughts about "criminal legal education" as we head back to school

I am very excited to be back to school this week with the extra pleasure and honor of teaching a (small section) of 1L Criminal Law (though I am frustrated that this semester will now be the fourth beset with COVID challenges).  My very first class ― way back in Fall 1997! ― was a small section of Criminal Law to 1Ls, and I surely want to believe I have done more good than harm in well over a dozen iterations of this great class.  However, this notable new Inquest essay by Shaun Ossei-Owusu should perhaps lead every criminal law professor to give some thought to whether and how we are just "Making Penal Bureaucrats."  This essay builds on some points he made in a recent law review article, "Criminal Legal Education," and here are excerpts:

Many lawyers play a central role in creating and sustaining mass incarceration; and many will leave law school with the ability to do the opposite. The high-profile death [of George Floyd] confirmed the brutality, inequality, and, for some, irredeemability of the very things many professors teach.  And criminal legal educators, some believe, need to read the room and offer instruction that better conveys the unjust realities of our legal system.  Alice Ristroph, a professor at Brooklyn Law School, may have offered the most forceful of these critiques, arguing that the detachment from reality and supposed race-neutrality of criminal-law teaching produces “pro-carceral” lawyers who help sustain mass incarceration.

My own work, published and forthcoming, moves in a similar direction, but also examines the race, poverty, and gender oversights in criminal legal education more broadly.  Some fellow academics will take issue with the idea that law professors have a hand in mass incarceration, to say nothing of other social ills, while others will applaud and nod in approval.  Whatever side they’re on, the undeniable reality is this: Law professors have trained and will continue to educate public defenders, prosecutors, and judges.  The legal education of these penal bureaucrats matters in the larger conversation around criminal justice policy and its deep, structural failings. And so the obstacles to changing legal education are really obstacles for the effort to tear down the legal edifice that made Floyd’s murder possible in the first place. As history shows, those challenges are not insignificant. To overcome them, we need a clear-eyed sense of what the precise obstacles are standing in the way to a more justice-oriented legal education.

Simply put, we can’t afford to ignore curricular reform in this moment, as navel-gazing as such a project may seem to those outside of law school.  I don’t profess to have all the answers.  Instead, I hope to sketch some issues we must confront if legal educators hope to meaningfully leverage this new energy in favor of effective curricular reform.  There have been various proposals and calls for action, but it seems necessary to raise questions that are sometimes muted or skipped over in the rush to reform a curriculum that has real shortcomings. The answers to these questions might lead us closer to capturing what legal historian Bob Gordon has described as “the motors of curricular change.”...

 With the exception of untenured faculty, law professors enjoy considerable latitude in their classrooms. A dean or administration has some carrots and sticks at their disposal, but few are game changers. These professors can be fussy and persnickety about teaching, and rightfully so.  Teaching comprises a substantive portion of professorial duties (the other two standard activities being research and service). As one professor observed in 1968, “I have seen law teachers, who have no peers in nitpickery, verge on purple apoplexy in debate over the curriculum. The whole academic business is fraught with vested interests, gored oxen, ground axes, pet peeves, visionary schemes, and intractable inertia.”

All this power-wielding exists in a context where there are competing ideas about the role of the professor.  A mere transmitter of what the law is?  A camouflaged activist who blends instruction with the inculcation of a particular set of values that makes students want to improve the criminal justice system, independent of how many people actually want to go in that line of work?  An instructor whose teaching discourages students from certain kinds of work as undesirable — where progressive prosecution and indigent defense alike are “system-reifying”?

In view of this morass of challenges, it is no wonder that urging legal instructors to talk more about racism, poverty, sexism, homophobia, and transphobia in their classrooms — even if they engage those topics already — is no stroll in the park.  Looking to the broader aim of criminal legal reform, explaining why the rest of the public should care or enter this discussion at all is tricky.  Law schools can be cordoned off from their local communities.  The key here is to recognize that this is a site of struggle where change-oriented people and organizations can develop allyships with like-minded students and faculty to help craft solutions to the multilayered problems of our penal system.

For students, I hope that identifying these challenges will clarify two things.  The first, which is something that I’ve consistently argued, is that legal education is unlikely to provide students with the kind of social justice-oriented training that some are demanding.  Self-led learning and organizing by student groups within and across law schools may have to be the second-best option. But this is not simply nudging students toward neoliberal self-help.  My second hope, instead, is for students to better understand these constraints — and in the process, to get a better sense of how to organize for and demand desired changes from their institutions.  Issues such as faculty composition, faculty governance, the professional pathways of graduates, and ideological variation within student bodies are some of the many issues that shape what they learn in a criminal legal education course.  But these factors may not be readily apparent to students who don’t have a sense of the “backstage” of legal education.  The short-term nature of legal education — three years, or two if you do not count the overbearing first year or a third year some students often check out of — demands cooperation with change-minded people outside of law schools and intentional strategies that withstand law school’s running out the clock on curricular change and hoping that the next cohort of students does not notice.

My fellow legal educators are likely to understand where I’m coming from. For those who care about this issue, my desires are also twofold.  First, I hope that these reflections will spur them to honestly assess where they might fit on a rough spectrum of this kind of curricular reform: active implementer, passive supporter, or outright adversary.  I have my own beliefs on the desirability of revamping criminal legal education; and yet I think there are principled justifications for each of these dispositions.  Let us just be intellectually honest about where we stand.  Second, I hope that we can all see that we are part of a vocation that has long professed ideas about intellectual curiosity, social justice, and equality under the law.  Nevertheless, our field has not been fully responsive to longstanding appeals to include legally relevant conversations about social inequality in our teaching.  Our response to this moment will partially dictate whether our profession can march closer toward social justice-oriented legal education — one that could mold not only the next generation of penal bureaucrats but also the change agents who will engage them and help to build new decarceral futures.  Or whether that curricular goal will simply result in yet another round of panels, symposia, and hashtags that merely scratch the surface.