AuthorOssei-Owusu, Shaun

INTRODUCTION 1390 I. THE SAME LEGAL PROBLEMS 1400 A. Criminal Legal Education and the Reproduction of Hierarchy 1400 B. Law School Socialization 1407 C. Demographics 1413 II. THE NEW PENAL BUREAUCRATS 1420 A. Generational Change in the Legal Profession 1421 B. Prosecution Reimagined 1426 C. Indigent Defense Rebooted 1433 III. PROVOCATION AND CURRICULAR REFORM 1438 A. Data-Collection Reform 1438 B. Student Initiatives 1441 C. Faculty Initiatives 1443 D. Employer Recruitment 1445 CONCLUSION 1448 INTRODUCTION

Law professors have penned essays about criminal justice reform for decades. In some ways, reform is an organizing scholarly orientation for people in the legal professoriate that can come in many flavors. A few include; correcting policy problems; addressing perverse bureaucratic incentives; closing doctrinal gaps; or solving a theoretical puzzle that may have practical implications. These are important endeavors. The racialized ballooning of our criminal justice system, often described as mass incarceration, is a policy problem. Allowing police departments to (handsomely) profit off the people they arrest, in violation of due process principles, is definitionally perverse. And despite some people's disinterest in theory, the explanations for why we punish are central to bubbling calls for abolishing, as well as defending, penal institutions (e.g., police and prisons). This work matters. There is no complaint here about what criminal legal scholars are doing. My concern here is about what has been given less attention relative to its implications, and that is the role of law professors in our current penal crisis.

Law professors train some of the bureaucrats that are central to the problems in the criminal justice system: public defenders, prosecutors, and judges. With the exception of people who might have personal or professional experience with the criminal justice system before law school, professors who teach in the criminal justice curriculum are often the initial points of contact for budding penal bureaucrats. These instructors play a critical role in the initial training of these students. Some of these students go on to work in the same flawed criminal justice system that professors often critique. Nevertheless, the role of the professor and of legal training in general are often ignored or given short shrift in our public discussions about the criminal justice system.

The publicized murder of George Floyd, shortly after the killings of Breonna Taylor and Ahmaud Arbery, prompted a subtle shift. As was the case in other professions, a wave of legal educators issued statements denouncing the police brutality and racial subjugation that typify parts our criminal justice system. (1) Law school deans penned powerful messages that gestured toward the relationship between legal education and social change. Anecdotally, portions of the professoriate seemed to be more receptive to integrating questions of race, poverty, gender, and inequality into the legal curriculum. Notwithstanding such introspection, it is unclear that the education of future criminal justice actors will change. Women and minority scholars have recognized the need for curricular change for more than three decades, particularly in the field of criminal legal education (e.g., criminal law, criminal procedure, and evidence). Although the nature of the commentary has changed, the core critiques are still relevant today. (2) Why is the contemporary racial reckoning in legal education so belated? One of the many reasons are tied to the ways legal scholarship treats law professors as outside the problem of criminal justice reform.

Accordingly, this Article argues that law schools and law professors play an underappreciated role in our current penal crisis. This contention is not causal, nor does it suggest that law professors are directly responsible for the state of our criminal justice system. Instead, my argument is premised on the belief that the training of students who become criminal justice lawyers matters and is not insulated from the critiques levied by legal experts in their writing. Querying legal education is not a navel-gazing exercise, but instead, is a call for the kinds of reflexivity that is valued in some social sciences and helpful for having fuller understanding of the world.

Scholarly gaps also contribute to the general understanding of law professors as outside the bounds of criminal justice reform. A significant subset of criminal justice scholarship focuses on penal bureaucrats--the individuals tasked with meeting the various imperatives of the criminal justice system (e.g., policing, prosecution, indigent defense, criminal supervision). The broad literature on penal bureaucrats typically focuses on their practice and work environments. (3) This rings particularly true for legal scholarship on penal bureaucrats, which traditionally examines incentives, pathologies, organizational culture, and constraints in the worlds of policing, prosecution, and indigent defense, amongst other areas. (4)

On the other end is legal profession scholarship, which overlaps with professional responsibility and traditionally investigates questions tied to legal education, socialization, and demographics, amongst other issues. (5) Interestingly, scholars of the legal profession who write about criminal justice have focused much of their attention on the legal ethics of criminal practice. (6) Again, this is an appropriate concern considering the moral quandaries and dilemmas penal bureaucrats encounter. But the lack of unified attention to the legal education, socialization, and demographics of future public defenders and prosecutors means there are gaps in knowledge about lawyers working in the penal bureaucracy. (7) This is unfortunate because a crosspollination of criminal justice and legal profession scholarship has the potential to prompt changes in an area that law schools actually have direct dominion over, as opposed to important but symbolic statements about police violence that may have a shorter shelf life and weaker societal impact.

Reexamination of the structure of legal education and its relationship to our criminal justice system is particularly urgent considering trends in both areas. Here I am referring to generational change. Every year Millennials (members of Generation Y born between 1981 and 1996) enter law school and the penal bureaucracy. At the same time, their post-Millennial successors (members of Generation Z born after 1997) are increasingly entering law school and will also become public defenders and prosecutors thereafter. Both cohorts are more diverse than the Generation X and baby boomer professors that typically teach in the criminal justice curriculum. (8) Millennials and postMillennials also have different experiences with law enforcement and less punitive politics than their predecessors. (9) Some of these young people will be prosecutors and public defenders and have the potential to reshape the criminal justice system. But the generational nature of criminal legal education and lawyering has been overlooked by scholars. Instead, age-based inquiries are often relegated to pedagogical discussions about how members of Generation Y and Z learn and consume information. (10) But analyses of criminal legal education and its relationship to generational change tee up larger issues about the future of criminal justice administration. Millennial and post-Millennial leadership during the summer 2020 protests and the politicization of current law students underscore this point. (11) Accordingly, this Article makes a unique contribution to criminal justice scholarship by-explicating how law schools contribute to our carceral regime and providing insights into how legal education can be responsive to generational developments in ways that accord with the growing consensus around criminal justice reform.

This Article proceeds in three parts. Part I particularizes the longstanding critique that legal education is not designed to challenge the status quo. (12) Assuming this is right, and available empirical accounts of legal education seem to suggest so, (13) this would mean that the core criminal justice courses taught in law school are not immune from this critique. Indeed, Alice Ristroph's recent deep dives into the history of substantive criminal law--the only of their kind--put forth the closest message: "American law schools, through the required course on substantive criminal law, have contributed affirmatively to the collection of phenomena commonly labeled mass incarceration." (14) Professor Ristroph's assessment is correct and is one part of a larger narrative about legal education's reluctance to take full account of its role in our criminal justice crisis. Part I picks up the baton and widens the discussion beyond substantive criminal law and illustrates how three issues that are central to the study of the legal profession--education, socialization, and demographics--offer insight into how law schools reproduce our penal status quo.

Part II shifts to the missing discussion about generational change in the legal profession. This Part explains the distinctiveness of Millennial and postMillennial law students and situates them within two recent developments in the criminal justice system: mass incarceration-influenced "progressive prosecution" and indigent defense reform. Empirical research has long demonstrated how legal education morphs and sometimes neuters students' social justice ambitions. (15) But the core criminal justice curriculum imposes a strict law/policy divide that leads to thin treatments of the practical issues facing penal bureaucrats. This divide also contributes to an underengagement with reform trends in the criminal justice system and their real limitations. The sidelining of reform conversations in courses that are denuded of full social context means that students are...

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