An Unlikely Way to Diversify California’s Legal Profession

(This article was first published in Calmatters on August 11, 2019.)

The legal profession–like many fields–doesn’t reflect California’s rich diversity: while whites comprise 41% of the adult population, they make up 68% of California attorneys. Similarly, Latinos comprise 35% of the population but only 7% of attorneys statewide.

As with other professions, the disparity has many causes rooted in America’s racial history and therefore does not yield easy solutions. But as our new study suggests, one way of shrinking this gap comes from an unlikely source: smoothing the path for formerly incarcerated people to become lawyers. Doing so would also help mitigate our national embarrassment over mass incarceration.

Stanford Criminal Justice Center (SCJC) - Debbie Mukamal, Executive Director
Debbie Mukamal, Executive Director for the Stanford Criminal Justice Center

A diverse profession reaps myriad benefits, including widening the range of clients who will feel confident in seeking legal assistance, enriching the profession with new perspectives on law and policy, and offering educational and professional models for the diversity of our youthful population.

Recognizing these benefits, law schools promote diversity in their admissions and the State Bar of California includes diversity as one of its three primary goals, the others being protecting the public and promoting justice.

At the same time, the State Bar cites the public protection goal as the justification for screening applicants under the moral character requirement, as well as by monitoring licensed attorneys for disciplinary violations.

As part of this assessment, the State Bar considers applicants’ criminal records. At an earlier stage, often in anticipation of State Bar policies, law schools ask applicants about their involvement in the justice system.

But there has been little scrutiny of whether these two stages of screening serve the diversity and public protection goals, and plenty of evidence that they operate as barriers to entry for people who could help the profession meet all three primary goals.

For more than a decade a surprisingly bipartisan group of American leaders has reached consensus that we imprison too many people for too long, and that our policing and incarceration policies have disproportionate effects on people of color.

Photos taken February 12, 2014 Faculty photo of Professor Robert Weisberg
Robert Weisberg, Edwin E. Huddleson, Jr. Professor of Law

Policies prioritizing successful prisoner reentry are being widely implemented and are refreshingly uncontroversial. An increasing number of people who are or who have been incarcerated have undertaken the daunting challenge of working towards college degrees. Indeed, California leads the nation in harnessing its public higher education system to educate thousands of incarcerated and formerly incarcerated students.

Individuals with criminal records can be remarkable assets to the legal profession, particularly those with the resilience and fortitude to move from prison through higher education completion.

Research on the life trajectories of former prisoners—the “desistance” phenomenon—informs us that as time passes, individuals with criminal records pose vanishingly tiny risk of any kind of criminal recidivism.

Most importantly, their backgrounds and direct experiences in the criminal justice system offer the profession unique perspectives, particularly to underserved clients.

But the screening mechanisms of law schools and the State Bar’s moral character requirement deter and prevent many of these potentially first-rate lawyers from reaching their professional goals.

Law schools vary in how they ask applicants about their criminal records, and these inquiries differ from what the State Bar requests both from applicants and from law schools who must declare what they know of their students’ criminal records.

For instance, half of the law schools in our study ask applicants about arrests that did not lead to charges. The other half do not. And while the State Bar does not require applicants to disclose charges of which applicants were acquitted, most law schools do.

The variance in how applicants are asked about their criminal records can be unnecessarily confusing to applicants. It can also lead applicants to inadvertently omit requested information and subsequently such lapses are used as the basis for denials, known as candor traps.

Also, decisionmakers rarely have the specialized expertise including knowledge of desistance research to guide them in deciphering applicants’ criminal records and whether and how they are relevant or stale. In the absence of such technical skills and with the tendency to minimize risk, qualified candidates are often denied.

The State Bar is taking an important first step to promote transparency in its moral character determinations through its convening of a new working group tasked with evaluating the standards and procedures used by the State Bar.

Our report identifies a range of other potential solutions, including urging law schools to consider whether and how they screen applicants and standardizing disclosure requirements across California law school applications; providing professional development on desistance and other relevant topics to those reviewing criminal records; and having the State Bar share aggregate statistics on applicants with criminal records and their admission rates.

As our nation takes steps to cure its addiction to mass incarceration and at a time when we recognize the benefits of diverse workforces, we should welcome—not discourage—qualified individuals with criminal records to join the legal profession.

Debbie A. Mukamal, executive director of the Stanford Criminal Justice Center, Robert Weisberg is the Edwin E. Huddleson, Jr. Professor of Law at Stanford Law School, They wrote this commentary for CalMatters.