Prison Law Blog

Sara Mayeux

Is the U.S. Law School Curriculum (Partly) to Blame for Mass Incarceration?

with 6 comments

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 >>

6 Responses

Subscribe to comments with RSS.

  1. I agree that Gottschalk’s book is a must read for anyone interested in the complex of factors that have dramatically increased incarceration rates in the US.

    I am not sure that ramping up course work in our law schools will make much difference. What might help, though, is a requirement that all law students (as part of a criminal law/criminal procedure course) visit at least one local jail, one county jail, and one state prison–preferably a maximum security prison. These visits should involve, minimally, a tour of the cell blocks and observation of classes in the prison school and/or some element of prison programming.

    Students can graduate from most law schools without ever having set foot in a jail, including students who may eventually be making criminal justice policy. Mandatory prison site visits would have the salient effect of making students aware of the unpleasantness of prison life and the humanity of the prisoners. At the same time, if politicians and prison officials were required to respond to pressure from the legal academy for site visits in the prisons, conditions in the prisons could be expected to improve somewhat.

    This is a simple-minded proposal that elaborates on the maxim “a picture is worth a thousand words.” As I see it, a prison site visit is worth a two or three credit course, including a course that does include readings of the Gottschalk caliber.


    July 11, 2010 at 4:51 pm

    • Thanks for the comments! I agree that jail/prison visits would be a great addition to the law school coursework. At Stanford, we have regular student organized trips to area state and federal prisons but they are voluntary and the number who can participate is pretty limited due to the prisons’ group size restrictions.

      On the subject of mandatory field trips, I think I might also add a requirement of spending a morning observing a regular day’s criminal calendar in a local municipal or county courthouse. Not a trial or formal hearing, just the daily chaos.


      July 11, 2010 at 6:15 pm

      • I agree that requiring a morning observing the criminal calendar would be a good idea. It is my sense, though, that many more law students are exposed to court hearings (both civil and criminal) than are exposed to prisons, either local, county, state or federal.

        As I think about this, I’m wondering how many judges and prosecutors tour prisons as part of mandatory job training.


        July 12, 2010 at 7:45 am

  2. When I was in law school in the mid 70s, I did visit a prison. I have also been on the boards of many a prison reform group. What we never ever did was visit the federal prisons: we’re not allowed. Did you know that? That’s where people could see prison “camps.” Nuns and priests who trespass on federal property serve 6-month terms there….they’re “incarcerated” too. You must approach the federal system of full employment–which comes by way of friendship with Washington D.C. politicos: federal judges, prosecutors, guards, prison suppliers, and the incredible welter of federal crimes (see J. Alex Kozinski’s latest book), to really talk about over-incarceration.

    Fluffy de Crossharbour

    July 12, 2010 at 4:54 am

  3. From Pekin Federal Prison “CAMP”
    July 11, 2010

    Last friday was a graduation ceremony. We had eight people from our alley graduate We call one of the girls, “Baby”, because– get this– she is only 19 years old. We had an alley party for all of them and it was very heartfelt. They made us all party hats out of colored paper and yarn and the graduates had special hats with their names and hearts on them. We had live entertainment and I had to cry at the opening song. It was “Amazing Grace”. The girl sang it without any music, and it was beautiful. It reminded me of when I was first locked up. I was in “Corrections Corporation America”. All we women were locked down”24/7”, and every night, before we went to sleep, there was a girl who would sing that song to the entire pod of 26 women. I have had flashbacks of all of the inspirational things of which I have been a part–over the past ten years. Every year in June, we used to have a week of prayer for prisoners. On the first year that we met, at the basketball court, it was right after the 5:30 a.m. Count. That first morning, I’ll never forget. I was standing out there as the sun came up and women started coming. I can still see them– walking across the compound in their housecoats and pajamas, coming in 2’s, 5’s, and 10’s, the tears streaming down everyone’s faces. They came until there were 183 women standing on that court. What a painful, but amazing journey.

    written by the last Pekinette: Ruth Carter/Mom, daughter, grandma, sister, pal

    Ruth Carter

    July 12, 2010 at 5:57 am

  4. I certainly agree that legal education does little to prepare lawyers to think critically about mass incarceration, I don’t know that I agree that lawyers are the problem. Lawyers, especially those who end up working in the system, understand exactly how overincarcerated the USA is. I rather think that politicians are the problem. And, by extension, the voting public who approve the legislation that undergirds this system. We need better public education about the realities and ills of overincarceration, not better legal education for technocrats.

    And as for the victims’ rights issues; I have worked in jurisdictions (like France’s), which allow for victim-led prosecution. It is a nightmare in its own right. Petty personal disputes and vengeance become raised to the level of criminality, and it creates a very arbitrary system where how hard you are prosecuted depends on the determination and capability of the victim — not an improvement on our own (very flawed) system.

    I don’t even believe that American victims are clamoring, en masse, for higher sentences. They don’t need to, with politicians like ours.


    August 25, 2010 at 12:08 pm

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: