Historically, most lawyers of my generation were taught the same curriculum, using the dreaded Socratic method that kicked our butts, toughened us up so we wouldn’t cry when a judge muttered “denied.” From what I read, things are very different now. It’s not just the “Law and ______” vanity courses, used to rationalize a lawprof’s scholarly interests, or the elimination of core curricula like Evidence.  It’s the freedom to decide what skills future lawyers need.

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?

There is no denying that the vast majority of criminal cases end with plea bargains. There is no denying that the system produced mass incarceration. So Andrew Guthrie Ferguson asks whether that’s what should be taught law students in their Criminal Procedure class.

In response, lawprof Larry Rosenthal offers an interesting view:

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.

That trench lawyers don’t spend much time discussing policy considerations with the judge is certainly true. Not that it’s unworthy of understanding how and why we do what we do, but that you get 30 seconds to make a point, and mentioning Locke pretty much means you lose. Judges are busy. They are inexplicably resistant to legal philosophical debates, looking at the 250 defendants they still have to get through before lunch. Go figure.

But then, what exactly is needed to teach a law student how to cop his client out like a pro?  There’s the mantra, smoothly delivered in the well that proves to everybody listening that you can deliver the goods like a seasoned lawyer. It changes from place to place, but it really doesn’t take more than ten minutes to get it down pat.

There’s negotiating the plea, but that largely deals with a few issues that are outside the defense lawyer’s purview. It relates to what the prosecutor offers (which he’s taught/told by his supervisor), what the typical plea is in the courthouse for a given offense, and just how strong the case against the defendant is.  The first two considerations can’t be controlled, so there’s nothing to teach there.  The third, however, is where there is a skill, or really a skillset, at stake.

To appreciate the strength of a case against a defendant, one needs to possess the full panoply of skills expected of a criminal defense lawyer. The knowledge of law. The willingness to investigate and question. The ability to find issues, raise challenges, present them persuasively and credibly.  A lawyer can’t negotiate with his adversary if he’s unarmed.  The “I know he’s guilty and you got him dead to rights, but puuhleeeeeze give me a break,” argument isn’t nearly as effective as some might think.

So what is the best method of obtaining a decent plea offer to address the problems of mass incarceration? Surprise!  It’s the ability and willingness to go to trial.  It’s the threat to the prosecution that if they don’t offer a sweet deal, you have the chops to beat them, to kick their butt in front of a jury, to get that beloved two-word verdict.

Teaching lawyers how to lose with dignity is a self-fulfilling prophecy.  They may look sharp up there, taking the plea with verve and élan, but that really isn’t the stuff of law school or information they need to know to square off against the forces of mass incarceration.  It’s bad enough that there are so few trials anymore that many lawyers, probably most, will never get a chance to command a courtroom, cross an agent until they cry and enjoy the adoration of a rapt jury.

But if you don’t teach them in law school how to do the hard stuff, how to try a case, how to prepare to win, how to think of success rather than bask in the warm glow of failure, they are shooting blanks in plea negotiations. Prosecutors know which lawyers never try cases. Prosecutors know who talks tough on the phone, then collapses into a ball when the judge says, “pick a jury.”

If you want to get down to what entry-level practitioners need to know to successfully navigate a courtroom in the age of mass incarceration, teach them how not to add more warm bodies to the mix. No, you won’t be able to turn them into Clarence Darrow overnight, and maybe not ever, but if no student learns how to try a case, how to toughen up enough to make good on his threat to refuse a plea and put it into the hands of a jury, then there will be no one left to try cases and cause a prosecutor pause to not offer draconian pleas. Teaching them how to plead out like a pro doesn’t cut it.