David Graham noted in the Atlantic that there are almost no black district attorneys. Aside from what that may say about black lawyers, it’s got systemic problems as well:
According to a new survey, an overwhelming portion of the elected officials ultimately responsible for charging criminals, deciding what sentences to seek, and determining whether to allow them to strike plea bargains are white men.
There’s also little question that the U.S. justice system as it exists perpetuates and encourages huge racial gaps, leading to much higher incarceration rates for black men and serious social disparities in housing, education, employment, and beyond.
The inability of prosecutors to appreciate the world and life of black defendants has been a perpetual problem; they just can’t seem to grasp why poor black guys don’t see the world through Yale-colored glasses. This is not only a real problem, but really a problem. As smart as some of these prosecutors may be, they’re so lacking in life experience that they do not appreciate that everyone didn’t summer in Nantucket. I kid you not.
In sum, race doesn’t definitively correlate with careful consideration by prosecutors of how their power can exacerbate or alleviate racial gulfs in criminal justice. The most important factor is an interest and willingness to delve into the data and then respond to it. But given that whites tend to be far blinder to the reality of gaps in the system than blacks do, it seems particularly important that prosecutors become a more diverse bunch.
So why so few black District Attorneys? It remains a mystery. My snarky reaction was that there are almost no black prosecutors because they’re too smart to dive into that hole, but that’s just me making a joke. Whenever there is a disparate racial impact, the obvious reaction is that it reflects bias, whether explicit or implicit. The disparate impact industry has developed a laundry list of explanations, some of which can’t be seen so they can’t be disputed.
But I know black and Hispanic lawyers who are prosecutors. And I know black and Hispanic lawyers who are criminal defense lawyers. Some are great lawyers. Some are mediocre. Some suck. Just like white lawyers. That said, there aren’t nearly as many black and Hispanic lawyers as there should be, all things being equal. And they didn’t come out of Harlem either. Most came from families doing better than mine.
If I had to guess why, it’s because young people of color don’t have the support, financial or otherwise, to make the leap from an impoverished background to post-graduate professional school.* Being poor makes one very practical, mostly because there isn’t much of a choice. Poor people have to eat. This is a detail that people with magically full refrigerators just don’t get.
Poor people don’t major in gender studies. They need jobs. Poor people don’t piss away three years of their lives on a lark when they can get a decent job now with a bachelor’s degree. Poor people want to stop being poor and start being not poor. Don’t dump your sensibilities on them. Being not poor beats the hell out of poor any day.
Throwing yet another monkey wrench into the mix, Lawprof Deborah Merritt noted that minority students do worse in law school than white students.
Even after controlling for LSAT score, undergraduate GPA, college quality, college major, work experience, and other factors, minority students secured significantly lower grades than white students. The disparity appeared both in first-year GPA and in cumulative GPA.”
All the usual explanations for the disparity were trotted out, because lawprofs, the most progressive group on the planet, were implicitly biased against minorities, right? In response, lawprof Jeffrey Harrison called it out:
I have no doubt about the outcome of the study but the actual color of the students — since there is blind grading — cannot be the cause. Unless I missed something in high school biology, there is no correlation between pigmentation alone and anything else. There is a causal factor, to be sure but, before coming up with solutions, how about putting social class into the equation or anything that can actually explain the outcome.
Increasingly I think white liberals want to classify deep social issues as exclusively matters of race. This means they can continue to ignore matters of class — of which there is a great variety within races — more generally. The reason for this is easy. Class differences, more than race differences, are responsible for their successes and we would not want the legitimacy of their success questioned, now would we?
One might suspect, hope, that whatever issues existed would be neutralized by an undergraduate education. Hey, they graduated college, right? Didn’t everybody figure out how to study, how to think, how to work hard, how to take responsibility for themselves? Stop laughing. Natch, the fact that these are college grads meant nothing to lawprofs, who instead want to reinvent nursery law school.
First, law schools must change the mindsets of students from disadvantaged backgrounds.
Second, law schools should help motivate their students. Many students come to law school lacking the motivation to learn.
Third, law schools must teach their students how to be metacognitive thinkers.
Fourth, law schools must help students from disadvantaged groups become self-regulated learners.
Finally, law schools need to help students develop better study habits.
There is something very important missing from the list. Law schools need to shut their doors so they stop producing more lawyers than society can absorb, and the ones they do produce can earn a decent living. Then, they’ll draw the smartest, most motivated, hardest working people of all races and social classes, who are now fleeing the law because they’re not idiots and they can crunch the numbers.
Not to mention, if you have to hand-hold them to get them through law school, what do you plan to tell their clients when they get life plus cancer because their lawyer sucked and only made it through law school with a curriculum of tummy rubs?
If students don’t have their shit together enough to grasp that the law is hard work, throw them out of law school and figure out why the people you want to be lawyers don’t want to go to law school (I can help with that question too). But don’t treat black students like infants. Not if you expect them to be good lawyers.
But I still can’t tell you why there are so few black prosecutors. The only thing I will say is that all this hand-wringing diminishes those black lawyers who do great work. They aren’t just “great black lawyers,” but great lawyers. And their clients appreciate it very much.
While there really need to be more black and Hispanic lawyers, even prosecutors, they need to be every bit as tough, hard-working, skilled, honest and dedicated to the zealous representation of their clients as every lawyer should be.
* The correlation between poverty, social class and race is not the subject of this post, which deals only with that tiny subset of minority students going to law school and becoming lawyers.
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Regarding the list of four changes to law school, one might note that number three is both inherently contradictory, as well as incompatible to the remainder. But maybe, not being an academic, I fail to understand how you can teach another person to be “self-regulated,” besides saying “do it your own damn self.”
If you’re going to let contradiction or irony bother you, you just don’t get the Academy.
SHG’s snarkiness notwithstanding, I don’t see what you are talking about.
First, why are metacognitive skills incompatible with the other skills on the list? Spending some time thinking about how you analyze certain challenges is often a useful endeavor, and can improve your effectiveness in dealing with future challenges.
Second, you can clearly teach self-regulation, for most understandings of the word “teach”. Most people understand a teacher’s role to include exposing students to a series of challenges that develop certain skills. Certainly, an appropriate series of challenges can be developed that emphasize self-regulation. For example, here is a very simple one used with children: “Here is a cookie. If you wait for 2 minutes before eating it, I will give you a second cookie.”
Now, I’m with SHG on his point; I think it is ridiculous that we should be proposing that law schools, or any other graduate schools, should be in the business of teaching these things. It is slightly less ridiculous that these things should be in undergraduate curricula, but still pretty ridiculous. Nevertheless, some people want to try to solve all the world’s problems from their current chair, and if that chair happens to be a lawprof’s chair, then they will try to solve those problems within the law school rather than just signalling to the undergraduate schools that they won’t tolerate unprepared students.
I second delurking’s observations that metacognitive skills and self-regulation can indeed be taught. Where I disagree with both Scott and delurking is that I don’t think it’s ridiculous for law schools to look for opportunities to develop those skills in students. Yes, it’s ideal if those skills are learned in preschool or kindergarten, or at the very least high school and college, but the argument is that minorities are disproportionately less likely to have learned those skills at earlier points, and law schools shouldn’t just throw their hands up and say “if you didn’t learn it earlier, we can’t help you now, guess we’ll have to wait until America’s elementary schools get themselves fixed.”
As an anecdotal example, I was (to put it mildly) a mediocre student in high school. I was smart enough to coast by with passing grades, but didn’t apply myself enough to really do well. I probably would have done the same thing if I’d gone straight to college; instead, I enlisted in the Navy and got my head screwed on right. By the time I came back to college and then went on to law school, I had a much better set of tools in the metacognition/self-regulating/executive functioning toolbox. The Naval Institute was running a series of articles for a while that focused on successful individuals who didn’t make a career out of the military, but who felt the skills they learned were valuable throughout their other careers. This isn’t a unique experience. (Personal anecdote handily isolated for excision at the editor’s discretion if not sufficiently on point.)
I see the attempt at teaching self-regulation and metacognitive skills in law schools as less of a hand-holding or sheltering exercise and more of teaching a man how to fish, as the proverb goes. Not everyone comes to the river with the same fishing pole, and you can’t teach someone to fly fish when all they have is a warped stick and three feet of string. Maybe those aren’t the students that are likely to make it through college and into law school in the first place, but the idea of teaching problem-solving techniques and how component processes combine to make complex tasks possible (as examples from the linked articles) doesn’t seem out of place for a law school to offer. In fact, I would argue that more than just students from disadvantaged minority groups would probably benefit from that kind of instruction.
So the only qualifications for going to law school are the willingness to take out a student loan and breathing? The rest you’ll get after you’re in? Not buying.
That may be the tradeoff. If you expect everyone to walk in the door on the first day of 1L year with all those executive functioning skills, then you’re limited by how well the rest of the education system prepares your potential students with those skills. They’re not distributed evenly throughout all socioeconomic classes.
I would also point out that schools could tighten their grading standards or graduation requirements while still teaching these kinds of skills, and for those who can’t or won’t pick them up, then you wash them out at that point. Nobody is required to know how to march, how to shine brasswork or how to fire an M-16 when you go into the military, but you learn it while you’re there or you find yourself being shown the door (or recycled through training.)
“If you expect everyone to walk in the door on the first day of 1L year with all those executive functioning skills, then you’re limited by how well the rest of the education system prepares your potential students with those skills. ”
Indeed. Law school (or any other graduate school) isn’t supposed to provide your whole education, it is only supposed to provide the education in the law. Otherwise it just gets longer and more expensive for everyone, without providing any additional benefits. Specialization is a good thing, and law professors are good at teaching law.
Your final military example is on point – if you don’t learn the critical skills during the training where you were supposed to learn it, you either go through that same training again or go do something else.
My father always believed that everyone should be in the military, just to go through training and learn discipline and responsibility. If it wasn’t for the occasional dying part, it sounded like a great idea, but he was WWII and I was Vietnam era. We had a different view of the military at the time.
“…the argument is that minorities are disproportionately less likely to have learned [metacognitive skills and self-regulation] at earlier points…
I would argue that more than just students from disadvantaged minority groups would probably benefit from that kind of instruction”
While I appreciate the obvious and metaphorical light bulb going on above your head right at the end of your comment, I have to agree with SHG, and re-emphasize, that poor people have better things to do than rack up $150k in debt for a “guaranteed” yearly professional salary of no less than $40,000 (ok, maybe $35k in some markets). And therefore, no, the argument isn’t that minorities are disproportionately less likely to be skilled in those areas upon entering law school. At least not how I see it.
And with regard to our lack of minority prosecutors, I have one point. We mostly come from communities of color, and most of us know friends or family who have been prosecuted into jail or prison. Prosecutors and cops make an ultimate tag-team of doom to many of us, or to those we know and love. Therefore, stockpiling mostly black & brown people in the local jail or prison is not a very appealing career option.
It’s too bad, because we really do need to infiltrate the system.
OK, I think this guy is just trolling us…
Would closing law schools really make any difference? I mean, if someone sucks as a lawyer, shouldn’t they be unable to make it as a lawyer and so leave the profession anyway. (I know, there are plenty of shitty lawyers out there who have practiced for 40 years, I have seen some, but I fervently hope they are outliers.)
As my Dad (who is also a lawyer, now mostly retired) told me when I wondered about going to law school given the always harped on “oversupply” of lawyers, he told me that while there may be too many lawyers, there aren’t too many GOOD lawyers, so if I strive to be one of them I should be fine. Has worked out so far.
Your Dad (I really like him) is right, there aren’t enough good lawyers. But that’s only a part of the equation. Crappy lawyers look like good lawyer to the public, because they have no clue how to judge credence. When there are too many lawyers, and too many lawyers flooding the market with pink hot pants and false marketing representations, they bring the revenue down for every young lawyer.
If good new lawyers can’t survive, the profession dies. If being a good lawyer doesn’t provide a reasonable assurance of a solid income, then good people won’t become lawyers. We need quality, not quantity. We need to deal with reality, not fantasy. Lawyers need to earn a living or there won’t be any good lawyers.
Would be interesting to hear your take in a post about what does make a good lawyer from the perspective of a lawyer? That was a mouthful. Also judging Creedence is easy: 1970 mostly meh.
Not that Creedence. Definitely meh.
This entire blawg (with certain exceptions) is about what I think makes for a good lawyer, but at the first level, it’s not all that complicated. Work hard. Have integrity. Put the client first. Everything else flows from these three things.
With all due respect to your dad’s well intended advice, most of the legal profession has morphed to a state where being good at being a lawyer is the least important aspect of making it in the legal profession.
White middle aged male attorney tells minorities what they need. Nothing whitesplaining there.
Exactly. Everybody wants to have a “conversation,” except nobody else is allowed to speak? Bullshit. There are a million possible reasons why I’m wrong, but being a “white middle ages male attorney” isn’t one of them.
Uh oh! Anon feelz accosted by this post. Quick, somebody call a therapist.
Seriously though, what’s the myopia that leads people to conclude that a white middle-aged male attorney has nothing to offer minority law students? When in law school I had the opportunity to meet a famous minority attorney who provided me a gem of advice that helped me many times in law school and in practice. I would have been a fool to dismiss his advice because he was a “black middle-aged male attorney” and I was young white law student. Unbelievable.
Anon thinks white middle-aged male lawyer has wrong skin color to talk about lawyers. Nothing moronic there.
“White middle-aged male” doth portend
Greenfield’s posts the (self-)righteous offend.
O anonymous sir knight!
How compelling thy fight
‘gainst the wickedness done thy rear end.
This study is poorly done. I hope you’ll allow me to explain why.
Data first: If you look into the study you will find an Excel sheet, showing what it studied. ( If you’ll allow the link to the download, it’s here: http://wholeads.us/justice/wp-content/themes/phase2/data/justice-for-all-data-set.zip)
There are two basic problems.
The first and most glaring problem is that the data set doesn’t control for state size, or relative number of elected officials by population.
Wyoming has 21 elected prosecutors.
Minnesota has 81 elected prosecutors.
Kentucky has a whopping 160 elected prosecutors.
The total population of all three of those states is about 10.5 million. That’s about 3.3% of the US population. They do not have many (or any) nonwhites on staff; surprise, surprise.
But this tiny proportion of the US population represents over 10% (almost 12% to be precise) of the total number included in the “only a tiny number are not white” claim.
New York, for example, has roughly 10% nonwhite, and a bit under 20% female. If you average New York properly with those above states, by correcting for population, it changes the averages considerably.
Guess what the authors of this study didn’t do?
The next and equally obvious issue is that the stated racial disparity applies only to ELECTED prosecutors, and not to ALL prosecutors. And those are, of course, also not evenly divided by state and population. I don’t know precisely how diverse my own state of Massachusetts is, but I can tell you that a lot of them aren’t white men, and there are a hell of a lot more than eleven people.
As an example which will be familiar to you personally, the total number of prosecutors in the sample for New York State was…. 52. Since I think it’s fair to say that there are a lot more than 52 prosecutors in the state, it’s also fair to say that the number doesn’t necessarily reflect the actual racial breakdown of “prosecutors” in general.
Now, it’s possible that the elected official actually reflect the working officials under them. But I doubt it. Mostly, I doubt it because it’s such an obvious question and remains unaddressed–which leads me to suspect that it conflicts with the chosen “message.”
I wasn’t all too concerned about the study per se. Yeah, it’s flawed, but the gist of it remains pretty true in the trenches, which is what interests me.
You have surely encountered far more prosecutors than I have!
Four of the more obvious explanations for prosecutor disparity:
1) A higher-than-normal proportion of qualified minorities are siphoned off these days, by employers who are specifically looking to increase their diversity. (The same thing happens with the law school admissions in the first place.) There are plenty of smart minority law school grads, but they are making a lot more than a prosecutor.
2) The article discusses elections. Much as law professors might want this not to be the case, the electorate will, can, and should vote for whoever the fuck they want. And certainly, every time I read an article which fervently asserts that race makes a huge effect on people’s actions and worth, I wonder “are they actually thinking this will make people vote for fewer people of their own race?” Anyway: No matter what we do, people will vote. So it goes.
3) They are drawing from a small and already-biased pool. The total %age of black lawyers is, as per the ABA, less than 5%. We’re 88% white and 70% male. Assuming that race and gender don’t have anything to do with expertise, a straightforward hiring process would still be expected to produce mostly white male prosecutors.
4) If you look for people in elected positions–people who presumably have more experience–then you need to take #3 and look at historical demographics. Want someone with 35 years experience, to run your state’s prosecutions? Back in 1980, only 8% of lawyers were women, not the 30% that are around now, so based on qualifications alone there’s a 92% change of a man with that much experience. I don’t have historical race data but assume a similar trend applies.
Your fourth point is one that I tell people constantly, as they forget that what’s happening today has nothing to do with the context back when. Not that they tend to care.
Brilliant post — and thanks for the reference to Harrison’s post. Class is rarely brought into policy discussions in any meaningful way (and as we have seen with Bernie Sanders — as you noted in a recent post — woe be it to anyone on the left who prioritizes class issues over race).
The second of the list of proposed law school tummy rubbing reforms was my favourite: “Second, law schools should help motivate their students. Many students come to law school lacking the motivation to learn.” Now, there are more and less motivated law students — I went to a decidedly not-top-tier law school, and saw the gamut of student quality there. But no one there was intrinsically unmotivated to learn. People may go to college and decide they will just kick it for four years and get their B.A., but anyone attending law school must on some level want to learn about the law at least. (Of course, given the fact that so much of what is taught in law school is unrelated to the practice of law, and therefore might de-motivate students, is a different discussion.)
I think you are on to something significant when you state, “Being poor makes one very practical, mostly because there isn’t much of a choice.” It would be interesting to see how many non-white law students eschew work as prosecutors because it is gruelling work for pretty low pay, when it is far easier to make better money going into private practice in some form, either in a firm, or hanging out one’s own shingle. The norm in my neck of the desert is for law graduates to put in a year or two with the PDs or DAs, and then set out for brighter pastures after they get a goodly number of trials on their resume.
Is it really true that a lot of students shell out tuition for a graduate-level professional education yet lack the motivation to learn? It seems like an awful lot of trouble and expense to go through for someone who lacks motivation.