Is the U.S. Law School Curriculum (Partly) to Blame for Mass Incarceration?
Let’s say you want to learn more about the recent history of mass incarceration in the United States, but you only have time for one book. Although there are many excellent candidates, one that I’d recommend is The Prison and the Gallows, by Marie Gottschalk (Cambridge UP, 2006). Gottschalk synthesizes a lot of scholarly literature to provide a one-volume chronicle of the explosive growth of the U.S. prison population in the past 30 years. She seeks to explain the uniquely American social and political forces that enabled this development, juxtaposing the U.S. against all the other Western nations which did not experience similar growth in the penal system. I found particularly useful Gottschalk’s chapter on why the rhetoric of “victims’ rights” gained such political force in the United States as a justification for passing harsher sentencing laws. Short answer: Our tradition of prosecutorial discretion, combined with federalism. (Longer but still oversimplified answer below.)
On top of those factors, Gottschalk argues, “Differences in the legal training, professional norms, and career paths of prosecutors, judges, and other judicial administrators are another reason why the U.S. criminal justice system has been more vulnerable to political winds whipped up by politicians and social movements” (98). I thought I’d highlight one passage in which Gottschalk compares German and American legal training:
Sociology of the law, with its emphasis on the importance of the social, economic, and cultural context for understanding legal norms and other aspects of the law, has greater sway with legal scholars and law students in Germany. Criminology is a core part of the law school curriculum in Germany. A large number of German law school students who are interested in criminal justice are familiar with the findings of empirical criminology. One leading German criminologist suggests that this might explain why German criminal judges “use the prison sentence in an essentially more reserved manner” than U.S. judges and overwhelmingly oppose the concept of deterrence via the death penalty. John Graham attributes the significant and persistent decarceration Germany engineered in the 1980s to a “radical change in the practice of public prosecutors and judges, which in turn has been brought about by a shift in their perceptions of the efficacy and legitimacy of incarceration.”
At the highest level of generality, I think this argument may overstate the difference between the two systems. Many American legal scholars also emphasize “the importance of the social, economic, and cultural context for understanding legal norms,” and, at least in my experience, some of that emphasis does make it into doctrinal law school courses. But as it relates to criminal law in particular, I do think this argument may be onto something. The 1L criminal law curriculum is highly theoretical and focused almost entirely on culpability determinations, although in most criminal litigation the real action is over procedural and sentencing questions. The 1L course devotes weeks to theories of accomplice liability and the distinctions between degrees of homicide, with little or no discussion of the War on Drugs in a systemic sense, of what actually happens after an adjudication of guilt, or of the reality that most defendants plead guilty after sentence and charge bargaining discussions that are shaped by all kinds of extraneous considerations (on both the prosecution and defense sides) besides pure legal analysis of their technical degree of culpability.
Happily, this year Stanford Law School welcomed to the faculty Joan Petersilia, who comes from a criminology background and has introduced new courses at SLS on “Sentencing and Corrections” and “Mass Incarceration.” I think this is a great start towards integrating more of a real-world perspective into the criminal law curriculum, and already these courses have attracted a wide following among students planning to go into prosecution, criminal defense, or related practice areas. But these are electives. In my ideal world, all law students would have some exposure to the recent history of mass incarceration regardless of what legal specialty they plan to pursue. Whether clerking for a judge, working on a pro bono criminal case, running for political office, serving on the board of a local nonprofit in an impoverished community — or for that matter, serving on the board of a private corporation with prison contracts — there are many points throughout even an adamantly corporate lawyer’s career where she might be called upon to make decisions that could be usefully informed by an understanding of America’s uniquely leviathan carceral state. Since all law students have to take criminal law at some point, that course would seem to be an ideal target for curricular reform — or at least modification.
I would be curious to hear in the comments from readers, especially law school students: What do you think about the idea that differences in legal training might help explain why America’s prison system has grown so large? Do you have any suggestions for how the law school curriculum, especially doctrinal criminal law and procedure courses, might be changed to address this? Or do you think the curriculum is fine the way it is? Did your 1L criminal law course fit my description or was it less theoretical in focus?
Longer but still oversimplified answer: Because the U.S. has a uniquely strong tradition of public prosecutors who have virtually unfettered discretion, victims have very little role in individual criminal cases — unlike in, say, France, where victims can compel prosecution and even hire their own attorneys to participate — so the only outlet for victims to mobilize is through broad-based policy lobbying. Another important institutional factor was the federal government, which poured funding into local law enforcement agencies as well as criminal justice academic and policy-making institutions in the 1970s and ’80s. Much of this federal funding was funneled through the LEAA program, which had close ties to the leaders of the victims’ rights movement. Back to top >>