Law in Contemporary Society


-- By ElyseSchneider - 25 Apr 2009


I began my Criminal Law course thinking we were going to speak about fixing the major problem specified in the introduction of our book; the high numbers of prisoners in the U.S. and consequentially, the overcrowding of prisons. To my surprise, we spoke of laws punishing actions having no affect on society, consequences which were far attenuated from the defendant’s actions, and actions which could be prevented by better social programs. What concerned me most was that we spoke about these laws from a view point of self-proclaimed “higher morality.” It became apparent that this mindset created the lawmakers who made the laws, the judges who enforce the laws, and the lawyers who continue working within the system without asking questions. What is it that made our criminal justice system go wrong? Unfortunately, one of the common variables in the mess we’ve made is law school.


The U.S. department of Justice announced in June of 2008 that “ 2,310,984 prisoners were held in federal or state prisons or in local jails which is an increase of 0.8% from yearend 2007” and these rates have been continuously increasing since 1980. (“Prison Statistics.” U.S. Department of Justice. Jun. 2008 However, according to Elizabeth Alexander:

"the dramatic increase in incarceration rates cannot be explained by our crime rates… crime rates in the United States are high, but they remain in ranges that overlap with comparable rates in other countries. And while there is much contested terrain about changes in U.S. crime rates since 1970, it is generally conceded that the crime rates have not changed dramatically and that movements up and down in the incarceration rate have not correlated with crime rate changes." (A troubling Response to Overcrowded Prisons; B-Net. Fall. 1998. 24th April,2009 /p/articles /mi_m0HSP/is_1_3/ai_66678533/).

Despite similar crime rates over the years, Congress is continually increasing what are often already harsh federal criminal penalties.” (“Congresses Hammer: another criminal law.” Real Clear Politics. Mar. 2009.24thApril,2009 03/congresss_hammer_another_crimi.html). If the crime rates are the same why do we continue to put more and more people in prison and give them harsher and harsher penalties?


Because law school is the common denominator in most of the people who make up the criminal justice system it seems that how we teach criminal law could be part of the answer. Here are some reasons: First, in law school many students, even those who focus on criminal law never step foot in a prison because there are not very many opportunities to do so. Second, most of the people who teach and attend law schools have never been part of a group that was likely to be incarcerated and therefore subconsciously think of themselves at a higher moral ground, and third most law professors do not focus in their classes on the problems with the criminal justice system and the ways we can change it.

Criminal law courses tend to use a theoretical approach for real-life issues. For example, while we do have programs that take law students to prisons to inform the prisoners of their legal rights they are few and are not promoted by most law professors who prefer theory. I have had the opportunity this year to work with an immigrant detainee lawyer in Manhattan. Though she does not practice criminal law, it and immigration law often intersect and therefore I have gotten to see first-hand what prisons are like and how incarceration affects the people within them. This experience has changed me profoundly and I am sure it would do the same to most law students if they only had the opportunity to see it. Therefore,more of an emphasis needs to be put on seeing first-hand how the criminal justice system affects people rather than learning it in a classroom.

Learning criminal law only in a classroom is also problematic because most law students and professors have never been part of an impoverished or minority group that are most likely affected by our high incarceration rates. Because of this, the conversation in class tends to sound a little bit like the court in Dudley and Stephens spoken of in Cannibalism and the Common Law. Though the judges in the case say that “they understand the temptation the sailors must have faced” they do everything, even skirt the law to try to give the sailors a death sentence because they want to show that cannibalism is “morally wrong.” But these judges will never have to face this situation nor did they face it in the past, so their version of what is “morally wrong” is more based on their fantasy of being a “good person” and less on the reality of the situation.

Because this mindset is rampant in law schools, we focus in Criminal Law class on what the law is or should be without focusing on how what the law is today is what is causing incarceration rates to soar while crime rates stay the same. In other words, we ignore the problems with the system, and simply work within it. While it is important to work with the system we have before we can change it, it is also important to recognize how problematic it is and think about ways in which we can change it. Instead of focusing all of our class discussions on “what is the morally right thing to do” we could focus at least some of our classes on how incarceration rates are controlled in other countries and how we can controll them here.


Law School is not the only party to blame. It is up to us as law students to demand that we be taught in a way that is hands-on, that makes us aware of the issues facing our legal system, and that prepares us to be a generation of change.

  • Here as in the other two essays, you are asking for realist conclusions but basing the rhetoric on non-realist arguments. You think that if law school were different now (or even that if law school had been different forty years ago) politicians primarily sensitive to the demands of voters who haven't been to law school, and police who haven't been to law school, and prosecutors and judges who see the system everyday and know exactly how it works, and contractors and unions who benefit from the trillions of dollars we have spent on confinement would all have agreed not to encarcerate more people? Or that the legislators in statehouses would have stood shoulder to shoulder and prevented it while constantly being challenged by people who wanted their jobs and were willing to pander to the voters' greed for punishment of other peoples' wayward children? And realists are supposed to agree with you about that?

  • What the essay wants is for people to pay attention to the realities of criminal justice, and in particular for law students to visit jails. This seems to me like a fine idea, and maybe even something to make an essay out of. But beginning by assuming the responsibility of proving that our present mess results in significant part from law students' not visiting enough jails is an unnecessary burden, it seems to me. It's always a good idea to protest the unreality of our public dialog about criminal justice, but it's also necessary to keep firmly in mind, as your first essay was designed to explore, just how deep the constituency for unrealism is.


Webs Webs

r5 - 08 Jan 2010 - 22:46:38 - IanSullivan
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM