July 17, 2019 — The Stanford Criminal Justice Center (SCJC) and the Stanford Center on the Legal Profession released a report today on admission barriers to law school and the California State Bar for qualified people with criminal records. The joint report, which grew out of a Stanford Law School (SLS) policy lab practicum entitled “Expanding Access to the Legal Bar,” reviews the obstacles faced by people with criminal records who apply to law school and seek admission to the State Bar and recommends actions to increase accessibility for those with criminal records.
The report’s authors conducted surveys and interviews with California law school admissions and student services officers, individuals considering law school, law school graduates with criminal records, and current and former California State Bar officials, along with other groups. The authors also organized a roundtable discussion with a range of stakeholders involved as well as outside academics.
“Our study reveals that there are successive barriers that keep qualified individuals from entering the legal profession–from applicant concerns about satisfying moral character requirements before applying to law schools, to confusion around the different criminal record disclosure requirements for law schools and the California State Bar, to a lack of support while in law school and when navigating the State Bar application process,” said Debbie Mukamal, executive director of the Stanford Criminal Justice Center and co-author of the report.
The report also found that the California State Bar’s moral character review process is imprecise and confusing. Like most states, California requires prospective attorneys to pass a “moral character and fitness” assessment. The justification is the protection of the public, but the report found that using criminal records to test this characteristic may be ineffective and unfair. Also, given racial disparities in arrest, conviction and sentencing rates, the over-reliance on past criminal records contributes to underrepresentation of racial minorities in the legal profession.
“A lawyer’s misconduct in the context of a professional relationship is of much greater concern to clients than what they do before becoming a lawyer,” said Professor Deborah Rhode, Earnest W. McFarland Professor of Law and Director at the Center of Law Profession. “Therefore, if the goal is public protection, the standards should be stricter for attorney discipline than they are for admission, not the reverse.”
With more than 70 million individuals in the United States who have a criminal record and the increase of college opportunities for incarcerated and formerly incarcerated students in California, the report found that there is a growing population that is interested and qualified for law school and State Bar admission but are discouraged from applying because of their past records.
A vocal advocate for removing barriers to the legal profession, California Attorney Francis (“Frankie”) V. Guzman is a juvenile justice attorney at the National Center for Youth Law. At fifteen, he was arrested for armed robbery and sentenced to serve fifteen years in the California Youth Authority. Released after six years, he attended law school and became an expert in juvenile law and policy with a focus on ending the prosecution of youth as adults. “Navigating the barriers to admission to becoming a licensed attorney was difficult and deeply emotional,” said Guzman. “I felt like I was on trial all over again, despite having a decade of rehabilitation.”
Guzman highlights that qualified law school candidates with a criminal record can also bring unique insight into the circumstances of their clients and offer a more empathetic voice. “My direct experience as a young person in the criminal justice system makes me a more effective advocate,” said Guzman. “I’m better able to understand and assist clients who are going through similar experiences.” Guzman played a significant role in developing the youth justice portion of the public Safety and Rehabilitation Act of 2016 in partnership with the Office of California Gov. Jerry Brown.
“The systematic changes that we are recommending via this report — from providing professional development to law school and State Bar decision makers, to standardizing the moral fitness questions, to supporting candidates through the State Bar moral character review process — will help reduce unfair and inefficient barriers to the legal profession for qualified candidates with criminal records,” said Caroline Cohn, JD ‘19, a co-author on the report.
The California State Bar is currently undergoing a review of the moral character review process and policies and Mukamal has been appointed to the Bar’s Moral Character Working Group that is tasked with evaluating the standards applied to moral character determinations. The group’s report will analyze the bar’s existing methodology and develop clear and appropriate guidelines for determining whether an applicant possesses the requisite moral character. “Stanford’s report is going to be quite valuable as we reevaluate the moral character determination with the goal of achieving a transparent and consistent decision-making process,” said Leah Wilson, Executive Director of the State Bar of California. “Its recommendations provide a thoughtful roadmap for us in ensuring that the admissions process is both inclusive and fair.”
“In-depth policy analysis of this topic remains lacking,” said Mukamal. She recently presented findings from the report to the Law School Assembly of the California State Bar. The conclusions were met with interest from law school and State Bar officials; indeed one law school is already revisiting how it asks applicants about their criminal records and considers those records’ relevance.
“The presence of many lawyers who entered law school with a criminal record and went on to become an asset to the profession embody the value of giving such individuals a second chance,” said Mukamal.
About the Stanford Criminal Justice Center
Founded in 2005, the Stanford Criminal Justice Center (SCJC) serves as a research and policy institute on issues related to the criminal justice system. Its efforts are geared both towards generating policy research for the public sector, as well as providing pedagogical opportunities to Stanford Law School students with academic or careers in interests in criminal law and crime policy. SCJC is led by Faculty Co-Directors Professors David Sklansky and Robert Weisberg, and Executive Director Debbie Mukamal.
About Stanford Center on the Legal Profession
The Stanford Center on the Legal Profession, founded in 2008, supports research, teaching, programs and public policy initiatives on crucial issues facing the bar. Central concerns of the center include how to enhance access to justice, sustain ethical values, improve bar regulatory structures, and effectively respond to the changing dynamics of legal workplaces.