Beyond Elite Law: Editors\u27 Preface

We are justly proud of the American legal system and the lawyers and judges who make it work. Our system, to the envy of much of the world, takes law seriously, aspires to reduce the gap between the law on the books and the law as lived, and strives to subject all within its remit to the rule of law. And yet, it remains, at its core, a system of elite law largely for the elite. We are all engaged in elite law, whether as lawyers or academics. Each year, the law schools produce eager, bright graduates ready to provide legal services to a thin layer of the population — either by working for the major law firms that serve corporate America or for NGOs that practice law with an “impact on important social issues. Some fortunate graduates find such work; others work for overburdened legal services or public defender officers, or hang a shingle, or practice in small firms although they are usually poorly prepared for the clientele they will encounter. Still many others drop out of the legal system entirely — perhaps their legal education will prepare them for a political or business career, or will not be relevant at all. We hope in this book to spark a conversation that helps move us beyond elite law, to better align existing legal resources with the people who need representation or simply assistance in navigating bureaucracies but are not wealthy enough to access our “Cadillac legal system and not poor enough to qualify for the limited supply of publicly supported legal aid

The Reintegrative State

Public concern has mounted about the essentially permanent stigma created by a criminal record. This Article takes a systematic look at state reforms and integrates them into a more workable and effective whole, which I call the Reintegrative State. It makes four contributions to the literature on collateral consequences and criminal records. First, it argues that there is a state interest to create a process to remove civil legal disabilities triggered by a conviction. Second, this Article argues that reintegrating people with convictions back into society is consistent with the state¿s interest in punishment and public safety. Third, it critiques current state experiments. Finally, it argues that the state should destigmatize a person with a conviction. To do so effectively, the state must incorporate reintegration approaches throughout the criminal justice system. The Reintegrative State envisions a holistic framework for helping those with criminal records re-assimilate into society

A Better Balancing: Reconsidering Pre-Conviction DNA Extraction from Federal Arrestees

Federal law mandates the collection of a biological sample from anyone arrested by federal authorities or facing federal charges, regardless of the charge. The FBI then creates a DNA profile from the sample and enters that profile into the Combined DNA Index System (“CODIS”), a national database through which law enforcement matches individuals and crime scene DNA evidence. Part I of the essay briefly reviews the federal statute that authorizes pre-conviction DNA extraction and the Fourth Amendment principles that underlie the current constitutional challenges to it. Part II identifies the various, and sometimes competing, rationales offered to justify the constitutionality of collecting DNA samples from individuals before they have been convicted of a crime. Part III then argues for a recalibration of the weight that courts currently place on the privacy interest in, and the government’s need for, DNA samples from individuals who are presumed innocent. Our analysis suggests that the proper assessment of the totality of the circumstances would reduce the weight accorded to the government need for a DNA sample in the period between arrest and conviction and increase the weight of the privacy interest in one’s DNA. This recalibrated balancing would likely produce different outcomes for pre-conviction DNA collection than those issued so far. At the least, pre-conviction DNA extraction should be permitted only after a neutral third-party finding of probable cause. This would assure the legitimacy of the governmental interest in the individual and protect against abuse. To further protect the privacy interests of those subject to mandatory DNA extraction, provisions must be made for the destruction of the DNA sample (and the extensive genetic coding contained within it) after analysis is complete. The essay concludes by identifying four issues yet to be addressed regarding pre-conviction DNA extraction. The holdings of the current cases leave open questions about whether the federal government’s interest in pre-conviction DNA extraction can trump the Fourth Amendment in the absence of a judicial or grand jury finding of probable cause, or when the arrestee is not detained or is charged with only a misdemeanor. Such cases quickly strain the current rationales and cast serious doubt on the constitutionality of the broadly worded statute

Derrick Bell’s Community-Based Classroom

In Derrick Bell’s Community-based Classroom, I argue that Derrick Bell enhanced his participatory pedagogical approach to teaching constitutional law by intentionally creating community within the law school classroom — a community that humanized the students’ educational experience. This essay explores three ways in which he created community: through his participatory, student-centered course structure; his social classroom environment; and his interactive self-assessments. Over the past few years, legal education has come under indictment in the media for not adequately training lawyers for practice. Bell’s community-based classroom responds to this indictment, fusing both theory and practice in teaching doctrinal constitutional law courses that aim to transform students into competent, caring professionals

The Reintegrative State

Public concern has mounted about the essentially permanent stigma created by a criminal record. This is no small problem when the U.S. criminal history database currently stores seventy-seven million criminal records, and poor people and people of color constitute a severely disproportionate number of them. A criminal record makes it harder for people to find housing, get hired, attend college, and reunite with their families. Yet these very things have the greatest chance of helping people lead law-abiding lives and reducing recidivism. Scholars, legislators, and advocates have confronted this problem by arguing for reforms that give people with a conviction a second chance. States have responded. By one count, from 1994 to 2014, over forty state legislatures passed 155 statutes to mitigate the civil collateral consequences of a criminal record. Although states have recognized that they have an interest in reintegrating their citizens with convictions, most people with criminal records cannot return to full citizenship. The stigma of a conviction follows them for a lifetime, even for the most minor crimes. This Article takes a systematic look at state reforms and integrates them into a more workable and effective whole, which I call the Reintegrative State. It makes four contributions to the growing literature on collateral consequences and criminal records. First, it argues that there is a state interest, if not obligation, to create an intentional and sequenced process to remove civil legal disabilities triggered by a conviction and to mitigate the permanency of public criminal records. Second, this Article argues that reintegrating people with convictions back into society is consistent with the state’s interest in punishment and public safety, especially in light of criminology research showing that a significant number of people stop committing crimes. Third, it critiques current state experiments with reentry initiatives as piecemeal, discretionary, inadministrable, and limited to a narrow segment of people with criminal records. Fourth and finally, this Article argues that the state can and should be the external force that destigmatizes a person with a conviction by reestablishing that person’s legal status. To do so effectively, the state must incorporate reintegration approaches throughout the criminal justice system — not just after sentencing or after release. The Reintegrative State envisions a holistic framework for helping those with criminal records re-assimilate into society

Administering Justice: Removing Statutory Barriers to Reentry

After years of swelling prison populations, the reentry into society of people with criminal convictions has become a central criminal justice issue. Scholars, advocates, judges, and lawmakers have repeatedly emphasized that, even after prison, punishment continues from severe civil penalties that are imposed by federal and state statutes on anyone with a conviction. To alleviate the impact of these punishments, they have increasingly endorsed state legislation that creates certificates of rehabilitation. Seven states offer these post- conviction certificates, and six others proposed such legislation in 2011. Many look to New York’s statute as the best model because it is the oldest and most robust. Yet no article has examined New York’s experience with Certificates of Rehabilitation. This Article draws lessons from the fifty-year history of New York’s Certificates of Rehabilitation to describe features of an ideal administrative mechanism that removes statutory barriers to reentry. I argue that a model Certificate of Rehabilitation statute will have a strong enforcement mechanism and clear directives for administering authorities. Successful implementation also requires committed administrative leadership and an effective means for making certificates accessible to the population they serve. Certificates of Rehabilitation do not erase a person’s criminal history, but they offer legal and social recognition that after a criminal conviction, a person deserves a second chance

The Reintegrative State

Public concern has mounted about the essentially permanent stigma created by a criminal record. This Article takes a systematic look at state reforms and integrates them into a more workable and effective whole, which I call the Reintegrative State. It makes four contributions to the literature on collateral consequences and criminal records. First, it argues that there is a state interest to create a process to remove civil legal disabilities triggered by a conviction. Second, this Article argues that reintegrating people with convictions back into society is consistent with the state¿s interest in punishment and public safety. Third, it critiques current state experiments. Finally, it argues that the state should destigmatize a person with a conviction. To do so effectively, the state must incorporate reintegration approaches throughout the criminal justice system. The Reintegrative State envisions a holistic framework for helping those with criminal records re-assimilate into society

The Juvenile Record Myth

The proliferation of adult criminal records and their harmful impact on people with convictions has received growing attention from scholars, the media, and legislators from both sides of the political aisle. Much less attention has been given to the far-reaching impact of juvenile delinquency records, partly because many people believe that juvenile records are not public, especially after a juvenile turns eighteen. That common notion is a myth. This Article addresses that myth and adds to both the juvenile justice and collateral consequences literature in four ways. First, The Juvenile Record Myth illuminates the variety of ways states treat juvenile records — revealing that state confidentiality, sealing, and expungement provisions often provide far less protection than those terms suggest. Although juvenile delinquency records are not as publicly accessible as adult records, their impact is felt well beyond a juvenile’s eighteenth birthday. No state completely seals juvenile delinquency records from public view or expunges them. Some states even publish juvenile records online, and almost all permit some degree of public access. Second, this Article provides the first comprehensive analysis of the crucial role of nondisclosure provisions in eliminating the stigma of a juvenile record. Now that colleges, employers, state licensing agencies, and even landlords are increasingly asking about juvenile delinquency charges and adjudications, the confidentiality, sealing, and expungement protections that do exist will be significantly undermined unless states allow juveniles with records not to disclose them. Third, using recent literature on juvenile brain development and the recidivism research of criminologists, The Juvenile Record Myth presents new arguments for why juvenile delinquency records should not follow a juvenile into adulthood — and why the state’s obligation to help rehabilitate juveniles (an obligation typically recognized in a state’s juvenile code) should extend to restricting access to juvenile records. Finally, it argues for a comprehensive and uniform approach to removing the stigma of a juvenile record through a combination of robust confidentiality, expungement, sealing, and nondisclosure statutes to facilitate a juvenile’s reintegration