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Lawyering

-- By SuzanAbebe - 17 Mar 2015

What Happens to a Dream Deferred?

A significant part of what led me to law school was the opportunity to learn about the complexities of the legal system, good and bad. Moreover, with my growing education I could then analyze and pursue those legal issues and injustices that I believe I would be able to effectively tackle. So much of the enthusiasm that I entered with has dissipated. I am concerned that we are not learning about lawyering i.e. “how to effect social change with words.” But even before the lack of lawyering, I am fundamentally concerned because this institution ignores the fact that racial issues permeate our legal system. I do not think you can get to “effecting social change with words” if you do not teach the social ills. If law professors continue to disregard the role of race and the law in their curriculum, then students will enter the legal profession without full comprehension of the system where it stands today.

…Does it Stink Like Rotten Meat?

There are countless instances where race played a significant factor or simply the sole factor in a legal decision. “The Central Park 5.” Five young men, four black, one Hispanic, ranging from 14 to 16 years old at the time of their arrests were wrongly convicted of raping a 28-year-old investment banker who was jogging in Central Park. She was white. The 5 had expressed that authorities coerced them into making incriminating statements, but the judge nonetheless ruled that their statements were admissible, and as a result, the young men were convicted in 1990. Their time in prison ranged from six to 13 years before the actual rapist was revealed through DNA evidence in 2002. The Central Park 5’s convictions were vacated in 2002. This example is not an isolated incident where the justice system failed these young men in particular. Instead, this narrative is common, and the 5 only garnered visibility because an award-winning documentary was able to capture the bleak attention span of Americans.

There are others. One I personally met while in high school. He served 14 years for a crime he did not commit and “new evidence and God finally came through,” he once told me. Although he was physically “free” upon his release, he merely existed in a world he no longer knew. These stories are supported by the literature. Rape is a highly intra-ethnic crime; the vast majority of white victims are assaulted by white perpetrators and black victims by black perpetrators. However, white victim cases predominate among Black defendants wrongfully convicted of rape. (Johnson) (Capers) (La Free). More generally, Brandon Garret’s Convicting the Innocent: Where Criminal Prosecutions Go Wrong, examined the first 250 DNA exonerations in the U.S. and his data shows that 155 of the 250 cases (60%) involved black defendants and that percentage rose to 70% when including Hispanics. I write about these statistics and stories to suggest that my law professors, the ones who are the experts in their fields, should include these disparities in our classroom discussions. In order to educate students on when the law works and when the law fails.

Maybe it Just Sags like a Heavy Load

I considered the argument that law school classes are about learning the doctrine and as a result the day-to-day practical issues must take a back seat. Second, that an upper level course like Critical Race Theory is offered to those that are interested. But, I realized when taking Property first semester that race even gets removed from the dialogue when learning the doctrine. In Dred Scott v. Sanford, Justice Taney stated, “the plaintiff was a Negro slave, the lawful property of the defendant, and, as such, the defendant gently laid his hands upon him, and thereby had only restrained him, as the defendant had a right to do.” Good law or bad law, I think a property course should have addressed that African-Americans were once considered property in this very country. Another example was the gloss over racial covenants. It is not a fix to say there is a critical race theory upper level class, because those courses are self-selecting. Racial issues in the law need to be addressed in first year mandatory courses, because they permeate the rulings of those first year courses like civil procedure, contracts, con law and property. We should not have to create a separate space to talk about race. If it is a factor in what we are learning, then professors should take the burden off of the minority students’ backs, who feel inept if they do not speak up to fill the void.

Or does it explode?

As students of the law, we should be learning about its implicit and explicit biases. As future practitioners, we will become the prosecutors, public defenders, judges, clerks, transactional lawyers, etc. To spend 3 years avoiding the obvious issues, will result in the perpetuation of this chain of ignorance and disparities regarding minorities and the law. This is the legal field and we cannot afford to disassociate and split legal issues from racism if it is there. Especially not if it is in hopes of avoiding uncomfortable conversations. We are in the industry of service and we deal with people. In order to understand human beings you have to relate to them. Part of doing this effectively is learning their history. The history sets the foundation for understanding the struggles faced by their culture and communities. I often question whether what appears to be professors’ indifferences is actually a consequence of them splitting. Standing back to back, so they do not join the conflicts that they are trying to avoid. So instead they approach doctrines in the same manner Supreme Court justices perform constitutional avoidance, they do this act of racial avoidance, for a preservation of self, conflicts and maybe white guilt.

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Citations: 1. Dred Scott v. Sanford, 60 U.S. 393, 397 (1856) 2. Johnson Matthew, Sex, Race, and Wrongful Conviction (2013) 3. Capers Bennett, The Unintentional Rapist, 87 Washington University Law Review (2010) 4. La Free Gary, Rape and Criminal Justice: The Social Construction of Sexual Assault (1989) 5. Hughes Langston, Harlem (What happens to a Dream Deferred?) (1951)

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