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Saturday, April 02, 2016

Rethinking Criminal Procedure in the age of mass incarceration

Thank you to Howard and the PrawfsBlawg family for the opportunity to blog this month.  As a scholar, I write about criminal justice issues with a focus on predictive policing, big data policing, the “Internet of Things” and other issues of how technology distorts Fourth Amendment doctrine.  I also write about juries and other criminal law issues and hope some of those ideas will make their way into blog posts here.

I wanted to begin my blogging career with a question inspired by a wonderful Symposium I attended yesterday on mass incarceration.  The symposium organized by the Wake Forest Law Review and hosted by Professors Kami Simmons and Ron Wright was an important reminder of how mass incarceration impacts all aspects of our criminal justice system. 

In teaching criminal procedure I obviously detail the empirical reality of mass incarceration with a series of slides, statistics, and figures.  But, I realize I do not structure the class with an emphasis on the current practice.  I teach the law as it should be – with constitutional protections (4th, 5th, 6th Amendment rights), trials, effective assistance of counsel, and the like.  I do not put primacy on pleas, misdemeanors, fines and forfeitures, mandatory minimums, collateral consequences, and systemic ineffective defender systems. 

A criminal procedure class that reflected our mass incarceration system might begin with plea bargaining (the outcome of 94%-97% of our criminal cases), defender overloads, prosecutorial discretion, then focus on sentencing, and then spend much of the rest of the class on prison conditions, parole, probation, recidivism, and collateral consequences.  While I mention those issues as aspects with the system (and problems with the system), I do not teach them as the system.  In fact, I teach them after all of the procedural and constitutional protections that make up only a small fraction of the current criminal justice process.

So my question to the criminal justice professors reading, do you teach the criminal justice system “as it is,” or do you teach it “as it should be” (or perhaps was at one point)?  Do you teach the distorting impacts of mass incarceration, and how?

Posted by Andrew Guthrie Ferguson on April 2, 2016 at 04:36 PM | Permalink


I teach criminal law and criminal procedure and have struggled with a similar dilemma. My (current) solution has been to develop and teach a third class, originally and excitingly named "Current Topics in Criminal Law & Procedure" that tackles all of the issues that you mention and a number of others: false confessions, dubious forensic science, the Reid Technique and false confessions, prosecutorial ethics, mass incarceration, the need for habeas reform, etc. There simply isn't enough time in the standard crim classes (in my experience) to cover the basic principles, the important procedural points, AND the big looming criminal justice reform issues at any length. I do, however, try to pepper my standard crim classes with quick, 10,000-feet discussions of the bigger reform issues. I'm teaching Miranda today, for instance, and planning to spend a few minutes discussing the Reid Technique and its criticisms.

Posted by: Tracy Pearl | Apr 4, 2016 3:18:42 PM


I have struggled with the balance, one side of which you've settled on. For a state like California, with countless law schools, it makes sense to stress practice, when most of your students might end up there. But my law school is the only one in the state, and many of my students will be state or federal elected officials, judges, and so forth. We even have one 3L who is a member of the state house and head of her state party committee, and many of our alums, immediately after graduation, become their counties' chief prosecutors!

My students need to be practice-ready, but they also need to understand the broader context in which they will practice, as well as the reality of racial profiling, the distorting realities of unequal funding, etc. For example, with the recent oil boom in the western part of the state (now a bust, apparently), police departments, PDs, and prosecutors are left incredibly underfunded. Add to that the fact that some oil workers are paid in a way that allows them to hide their income. Thus, when they get arrested, they are approved for a PD even though they may be earning $80k.

Anyway, teaching all of this in a school of limited resources is hard, if not impossible, but is incredibly important. The bottom line, I suppose, is that each school and each professor will have to respond to different imperatives. For you to teach practice seems to make sense (but surely some Chapman alums will be making policy in California and elsewhere?), for me to struggle with the balance also makes sense. The "purpose" of law school is context-specific, I think.


Posted by: Steven R. Morrison | Apr 4, 2016 12:45:54 PM

I suppose that one's answer to this question ultimately turns on one's view of the purpose of law school. My own view is that we best serve our students by focusing on the knowledge, skills, and abilities that are central to entry-level attorneys. For this reason, when I teach advanced criminal procedure (called at Chapman Practice Foundations: Criminal Litigation), I spend much less time dissecting appellate opinions and the finer points of constitutional criminal procedure than is usual for this course, since these issues arise relatively rarely in most criminal practice. Conversely, I spend much more time on charging, plea bargaining and sentencing, since entry-level attorneys much be familiar with these processes, which are part of the everyday life of entry-level practitioners. I do not spend much time, however, focusing on policy debates about the criminal justice system, since entry-level attorneys are rarely expected to participate in such policy debates (which largely take place in the legislature anyway). There is an opportunity cost associate with all curricular decisions, and I think it most prudent to focus on those issues most likely to enhance recent graduates' ability to represent their clients in the system we have, and are likely to keep for the foreseeable future.

Larry Rosenthal
Chapman University Fowler School of Law

Posted by: Larry Rosenthal | Apr 4, 2016 12:41:29 AM

Hi Andrew, good to see you here.

I have limited time in my class, and my school has limited resources (I'm the only crim professor), so I first teach criminal procedure as a set of rules that are supposed to apply (the law in theory). I then touch upon the reality, which primarily entails the fact of racial disparities and limited funding (for public defenders, contract defenders, investigators, etc.), to the extent I can. Finally, I try to present crim pro as a set of policy choices and invite my students to think about how they would want to structure the system. It's too much for one class, but this is the only chance they'll have to learn crim pro in a classroom setting, and they'll go on to be prosecutors, defense attorneys, judges, and elected officials, so they need to know about it all. I'd be interested to hear about how others teach these things, given budget cuts and other financial realities facing some law schools today.


Posted by: Steven R. Morrison | Apr 2, 2016 5:05:26 PM

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