Criminal Legal Education

ESSAY

CRIMINAL LEGAL EDUCATION

Shaun Ossei-Owusu*

ABSTRACT

The protests of 2020 have jumpstarted conversations about criminal justice

reform in the public and professoriate. Although there have been longstanding

demands for reformation and reimagining 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 bru-

tality was comfortably tolerated. Scholars are publishing op-eds, policy pro-

posals, and articles with rapidity, pointing to different factors and actors that

produce the need for reform. However, one input has gone relatively unconsid-

ered: legal education.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 414

I. CRIMINAL LEGAL EDUCATION AND THE REPRODUCTION OF HIERARCHY . . . 416

II. LAW SCHOOL SOCIALIZATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 421

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 427

Faculty who teach criminal law, criminal procedure, and evidence—what I

describe as criminal legal education—are unassuming but integral players in the

American system of punishment. They are responsible for the early legal training

of prosecutors and public defenders. Surprisingly, the relationship between these

lawyers’ education and criminal justice outcomes is underexplored. This Essay

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

Essay draws on scholarship on legal education and the legal profession. This

* Presidential Assistant Professor of Law, University of Pennsylvania Law School. This Essay benef‌itted

from feedback and conversations with Atinuke Adediran, Amna Akbar, Chaz Arnette, Khiara Bridges, Bennett

Capers, Guy-Uriel Charles, Angela Davis, Roger Fairfax, Trevor Gardner, Osamudia James, Ben Levin, K-Sue

Park, Jonathan Simon, Henry Bluestone Smith, and Adnan Zulf‌iqar. Special thanks to Megan Russo for excellent

research assistance. While working on this Essay, I came into the community with a group of professors working

to get scholars of punishment to confront our collective role in our penal moment. I benef‌ited from that

intellectual community, and it includes Amna Akbar, Chaz Arnett, Monica Bell, Nicole Smith Futrell, Sean Hill,

Jamelia Morgan, Allegra McLeod, Naomi Murakawa, Ngozi Ogidegbe, K-Sue Park, Jocelyn Simonson, Priscilla

Ocen, and India Thusi. All errors are mine. © 2021, Shaun Ossei-Owusu.

413

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 law school’s inattention to race, poverty, and gender reinforce this Essay’s argu-

ment about criminal legal education’s inequality-producing character. Ultimately,

this Essay contends that attention to the oversights in the criminal justice curricu-

lum provides an immediate, potentially fruitful, but rarely considered criminal jus-

tice reform strategy.

INTRODUCTION

The 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 advo-

cates who argued that the criminal justice system is irredeemably biased.

1

Legal

academics responded immediately. Law school deans, centers, and professors

issued statements and penned op-eds decidedly denouncing white supremacy and

police brutality.

2

These messages have important expressive functions and com-

municate values to the legal community and the broader population. Police are of-

ten 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 in-

equality. 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 jus-

tice 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

1. Nate Cohn & Kevin Quealy, How Public Opinion Has Moved on Black Lives Matter, N.Y. TIMES (June 10,

2020), https://www.nytimes.com/interactive/2020/06/10/upshot/black-lives-matter-attitudes.html.

2. See, e.g., Press Release, Allard K. Lowenstein Int’l Hum. Rts. Clinic, Statement on the Extrajudicial

Killings of Black People in the United States (June 9, 2020), https://law.yale.edu/yls-today/news/allard-k-

lowenstein-international-human-rights-clinic-statement-extrajudicial-killings-black-people; Press Release, Univ.

of Tex., Statement of the Deans of the Ten Texas Law Schools Condemning Racism and Remembering George

Floyd (June 10, 2020), https://law.utexas.edu/news/2020/06/10/statement-of-the-deans-of-the-ten-texas-law-

schools/.

414 AMERICAN CRIMINAL LAW REVIEW [Vol. 58:413