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Wednesday, June 01, 2011

Why do Law Schools Overlook the Incarcerated?

This is Giovanna Shay of Western New England College School of Law, signing on as a guest blogger at Prawfs for the month of June.  Thanks to Dan and everyone at Prawfs for the opportunity.  As someone who frequently writes about mass incarceration, I was relieved when the Supreme Court released its opinion in Brown v. Plata last month, affirming extraordinary relief for "exceptional" over-crowding.  I'm going to take advantage of that recent opinion to pose a variant of a question asked by James Forman, Jr., now at Yale, and Sharon Dolovich of UCLA: When the U.S. has record numbers of incarcerated people, why do law schools offer so few courses in prisoners' rights?  And my variant: why do we ignore aspects of the law affecting prisoners in other courses, such as family law, ad law, and civil rights? 

Of course there are exceptions.  Prof. Dolovich has taught a prison law course at Harvard, Georgetown, and UCLA.  Prof. Brett Dignam has taught a Prisoners' Rights Clinic for years, first at Yale, my alma mater, and now at Columbia.  Prof. James Forman, Jr., brought Georgetown Law Center students to teach detained juveniles at the Maya Angelou Academy in the D.C.-metro area, and Prof. Teri Miller of the University of Buffalo has produced a documentary, Encountering Attica, following UB law students in dialogue with Attica prisoners.

But these examples are exceptions, not the rule.  In his article, Why Care About Mass Incarceration?, Forman has called for law profs to teach more prisoners' rights courses.  Dolovich has been vocal about these issues, and is developing the theme in a proposed collection of essays on which we are collaborating.  To be sure, as Forman and Dolovich both acknowledge, law students study criminal law and procedure.  But at many law schools, curricular offerings in the postconviction area are sparse.

And what about discussion of the incarcerated in other courses?  Why don't we address regulations governing prisoners in administrative law, a theme I touched on in Ad Law Incarcerated?  In family law, why don't we talk more about termination of incarcerated parents' parental rights and corrections policies regarding family visitation?  At a minimum, why don't prisoners' civil rights cases get more air time in general civil rights courses?  Certainly, the Supreme Court gave us something to discuss last month in Plata.

I am interested in hearing folks' thoughts about why this gap exists.  Is it because, as some law profs have suggested to me, prisoners' have so few rights that it is not worth covering technical and arcane areas like AEDPA and the PLRA?  Or is it because there is little student interest?  Maybe because there are so few paid jobs available representing prisoners?  Or are we in the academy reflecting the "out-of-sight, out-of-mind" mentality that brought the nation to this juncture, what Dolovich has described as Incarceration American-Style?  Maybe there are other projects out there addressing this deficit.  I'd like to hear about them. 

Posted by GiovannaShay on June 1, 2011 at 10:20 AM | Permalink


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As someone who teaches a course on the rights of prisoners, I have a slightly different take than "casual reader." I agree that if the course has solely a policy/history of prisons focus, then it will have a different feel than most law school classes, and as a law student I probably would avoid it too. Instead, I try to teach the class as a civil rights litigation/fed courts class which uses jurisprudence developed in prison cases as a way of teaching complex civil rights issues. So some of the class content is, I hope, transferable to other kinds of work. But I also think that it is difficult to overstate how different constitutional jurisprudence is in the prison context -- on one hand, the Eighth Amendment is one of the rare sources of constitutional law that imposes affirmative obligations on the State; on the other hand, the application of other fundamental constitutional rights within prison barely resembles the law as applied to people on the street. In this way, the class also has some highly specialized aspects to it. Whether the class is valuable I suppose depends in part on getting the right specialized/transferable mix. My students have mostly been folks who are interested in criminal justice practice in some way, but the majority are not looking to go out and practice prisoners' rights specifically.

As for Giovanna's question about why classes like this are not more common, I am not sure (in the New York area, I think they are actually more common -- Michael Mushlin teaches a class at Pace, I thought a class on prisoners' rights was occasionally offered at Seton Hall, and prisoners' rights cases are handled by the Federal Litigation Clinic at Fordham, the Civil Rights and Constitutional Litigation Clinic at Seton Hall, and the Federal Civil Litigation Clinic at Brooklyn, as well as Brett Dignam's clinic that Giovanna mentions -- NYU's Civil Rights Clinic also used to have prisoners' rights cases, but I think that is not happening anymore; I may be missing some New York-area prisoners' rights offerings, but these are the ones that pop into my head ). It may be that the class is likely going to be taught by someone who actually had litigation experience in the area prior to joining the academy. Given how few lawyers litigate prisoners rights cases full-time, there are probably even fewer academics with that kind of experience. I know that Cardozo did not offer the course until I came here, even though we did offer a civil rights/Section 1983 course.

As for why the incarcerated are not well integrated into other classes, like ad law or family law (Is it really the case that they are not discussed in general civil rights classes? That was not my experience when I looked at different civil rights syllabi to prepare for teaching one of those classes), I imagine we could always look to the casebook authors (not being one, I am not sure how fair this is). I think it takes a particular interest in the incarcerated to find ways to integrate their stories into seemingly unrelated doctrinal areas. And my guess is most casebook authors for ad law and family law do not have that interest. Maybe the work Giovanna and Dolovich are doing will help more folks see those links.

Posted by: Alex Reinert | Jun 2, 2011 12:33:11 AM

Not intending to make this sound like a Georgetown shameless plug, but in addition to James Forman's class, there's an experiential learning course (like a mini-clinic) called Wrongful Convictions that works with the Innocent Project, which is arguably different but still related. Additionally, although the description of the clinic is semi-vague, multiple people in the Community Justice Project Clinic do prisoners' rights related work (http://www.law.georgetown.edu/clinics/cjp/index.html). The Criminal Defense and Prisoner's Advocacy Clinic (http://www.law.georgetown.edu/clinics/CriminalDefensePrisonerAdvocacyClinic.html) does a combination of traditional PD work and parole board advocacy. There's a course in prison law and policy (http://www.law.georgetown.edu/curriculum/tab_courses.cfm?Status=Course&Detail=1701).

That said, I don't know to what degree, if at all, it's incorporated into every day courses. Just suggesting that there's not a complete dearth of info out there...though I'll admit that it's not great!

Posted by: guest | Jun 1, 2011 3:11:45 PM

Coming from a recent graduate...quite honestly, I'm not sure what a prisoners' rights class would actually teach. It seems that the information & skills from other classes (fed courts, admin law, civ pro, evidence, civil rights, statutory interpretation, etc.) directly translates into the ability to, if one so chooses, engages in prisoners' rights litigation. AEDPA's confusing, but it's a statute with significant interaction w/fed courts issues...same with the PLRA. Simply put, the area isn't sufficiently different to warrant a specialized class. A recent law school graduate can, with little difficulty, enter the area, be it for full-time work (although not sure how one would pay off loans) or pro bono work.

Learning about prison policy, history, etc. is a different matter...but, as a law student, I would shy away from that b/c it has more of a "criminal justice" major type feel, not a "real" law class.

At least at my school, there was plenty of awareness-type activities, many talks, visits to prisons, etc. In short, I guess that the combination of (a) awareness of the problem, and (b) skills taught in other classes rendered, in my opinion, a specialized class unnecessary.

Posted by: casual reader | Jun 1, 2011 12:41:26 PM

I can't comment re the private law schools, but I'd imagine teaching a dedicated course on prisoner rights or something comparable at the publicly-funded law schools would be a political hot potato: difficult for politicians to defend to voters, and easy for their opponents to demagogue.

Posted by: TDot | Jun 1, 2011 12:12:55 PM

I'm not a law student but thank you for writing this. My husband is in the Utah State Prison & they're so over-crowded they just moved him from the best unit to the gang unit to make room for some guys that have a better past & my husband dropped out of the gang 4 years ago. I don't know if he'll make it out now. Overcrowding effects people in countless ways.

Posted by: Camilee | Jun 1, 2011 11:06:37 AM

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