The New Penal Bureaucrats
Posted: 4 Nov 2020
Date Written: September 12, 2020
The protests of 2020 have jump-started conversations about criminal justice reform in the public and professoriate. Although there have been longstanding demands for reformation and re-imagining of the criminal justice system, recent calls have taken on a new urgency. Greater public awareness of racial bias, increasing visual evidence of state-sanctioned killings, and the televised policing of peaceful dissent have forced the public to reckon with a penal state whose brutality was comfortably tolerated. Scholars are publishing op-eds, policy proposals, and articles with rapidity, pointing to different factors and actors that produce the need for reform. However, one input has gone relatively unconsidered: law professors.
Faculty who teach criminal law, criminal procedure, and evidence are unassuming but integral players in the American system of punishment. They are responsible for the early training of penal bureaucrats — individuals that are tasked with meeting the various imperatives of the criminal justice system (e.g., prosecution, indigent defense, criminal supervision). Prosecutors and public defenders, the penal bureaucrats of interest in this Article, receive their core legal education from law professors. Surprisingly, the relationship between penal bureaucrats’ legal education and criminal justice outcomes is under-explored. This Article provokes a different kind of conversation by arguing that criminal legal education has some responsibility for our penal status quo. To fortify this argument, this Article draws on scholarship on legal education and the legal profession. This literature illustrates how law schools socialize students into reproducing hierarchy and inequality. However, these insights are rarely applied to the criminal justice system and instead focus on the private sector. Longstanding and recent critiques of the criminal justice curriculum’s inattention to race, poverty, and gender reinforce this Article’s argument about criminal legal education’s inequality-producing character.
Attention to younger generations, I argue, provides different possibilities. Millennials and post-millennials enter law school and the legal profession annually, but criminal justice scholars overlook significant generational change. A growing empirical literature, along with the summer 2020 protests, highlight how younger generations have different perspectives on criminal justice issues than older cohorts. They have unique views on over-policing, drugs, racial inequality, and poverty — all of which figure prominently into our system of punishment but are often marginalized in the criminal justice curriculum. This minimization means law students, and future prosecutors and public defenders, in particular, often receive a legal education that is heavy in legal doctrine and light on the issues that matter to them. Oversights accumulate and inequality is reproduced. This educational state of affairs does not have to be the case, especially since many of the “progressive prosecutors” and indigent defense organizations that are attractive to law students focus precisely on these issues. Accordingly, this Article provides some normative strategies for students, faculty and employers that can potentially reform criminal legal education and reshape the organization of the penal bureaucracy.
Keywords: mass incarceration, legal education, criminal law, criminal procedure, race and the law, gender and the law, law and inequality, critical race theory
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