The Need for Prosecution Clinics in Ending Mass Incarceration

There is a debate fermenting at my law school, the University of Washington, over whether the school should fund a criminal prosecution clinic. I weighed in on the debate, and to the surprise of many, I said that I favor a prosecution clinic. I favor it because I think such a clinic, if done properly, is an indispensable part of changing the criminal justice system in a way to end mass incarceration. Because some of my classmates do not understand my position, I thought I would share my thoughts here.

Let me first give some context. This country has a problem called mass incarceration. The U.S. locks up more people than any other country on the planet, even more than China, which has a few more billion people than we do. We also have a large racial disparity in our criminal justice system, as we lock up a disproportionately large number of people from communities of color. Part of the problem, but surely not the bulk of it, lays at the feet of prosecutors, some of whom believe that their primary job is to lock up as many people as possible for as long as possible.

Given the problem, some of my classmates question, and rightly so, whether UW law school should fund a prosecution clinic, and whether such a clinic evokes the wrong image for a school deeply invested in public interest, and especially, invested in ending mass incarceration. Our school motto is “Leaders for the Global Common Good,” and one of my more comedic classmates said that after the prosecution clinic starts, we should change the motto to the “Jailers for the Common Good.”

I should also point out that our sister school, Seattle University School of Law, rejected the prosecution clinic, largely, from what I hear, on social justice grounds.

Now, not everyone is opposed to the clinic. Some of my classmates desire a prosecution clinic because they plan to begin their career inside a prosecutor’s office and they value clinical experience in their field. They also value trial advocacy experience, which the clinic will provide.

My reasons for valuing a prosecution clinic are many. Most importantly, anyone who thinks that we can end mass incarceration without prosecutors is simply wrong. Prosecutors possess power. The power of discretion in deciding whether to charge, in deciding how to charge, and the discretion in recommending a sentence once a prosecutor proves his or her charge. This is largely why my good friend and mentor, who is one of the top criminal defense attorneys in Nebraska, told me that a prosecutor can do way more justice than any defender ever can.

And until we can convince legislators to change sentencing, incarceration, and prison reentry law, we should focus at least some of our attention towards convincing the individual prosecutor about how justice can best be done in the individual case. And a good place to start that convincing is in law school before a future prosecutor enters a jaded and unsympathetic workplace.

Given this reality, there may be no more important social justice clinic at the law school than a prosecution clinic that properly trains future prosecutors to think about their role in ending mass incarceration.

Second, I would hate to alienate more future prosecutors. There is already a large us-against-them presence at the law school between those concerned with social justice and mass incarceration and those that desire to be future prosecutors. The problem is magnified even more given that a majority of the people that go into prosecutor’s offices are white men, who are already told throughout their three years of law school that they are the root cause of every social ill in existence.

Now, some may say, well, who cares if we alienate them. Who cares if we make them angry because we are principled. Don’t get me wrong, I want to stand on principle, too, but to end mass incarceration, we need to start thinking strategically. And the truth is that we really need good prosecutors more than we need good defense attorneys, if we are to ever make a dent in ending mass incarceration.

And the last thing I want the law school to do is to send a bunch of pissed off people into prosecutor’s offices a year or two from now.

It is for this reason, that I also don’t buy the argument that UW should just start a defense clinic because then future prosecutors could receive trial advocacy skills just the same as they would through a prosecution clinic. That, too, will alienate them. If I was told that instead of enrolling in an Innocence Project Clinic next year that I had to enroll in a prosecution clinic in order to receive some litigation skills, I can tell you how I’d feel about it. And that is exactly how someone desiring to learn how to be a prosecutor will feel.

Again, the last thing I want is for a bunch of resentful law school students to be deciding, a year or two from now, on how to exercise their enormous discretion. And believe me, people carry resentment for a long time.

Third, if done right, the prosecution clinic at UW could be the start of a wonderful social justice minded program. In my dream scenario, every law school would have a prosecution clinic, where the future prosecutors of the world would be required to read The New Jim Crow by Michelle Alexander. Where they would be required to learn about wrongful convictions and how to prevent them and how not to fight them when they are proved. Where they would be forced to visit a prison and see for themselves whether incarceration is the first and best response to fighting crime and rehabilitating people.

If done right, a prosecution clinic like that could be one of our best weapons for ending mass incarceration.

If done right, a prosecution clinic could provide as much social justice and public service as any clinic, anywhere.

Fourth, I couldn’t really care less if UW is viewed poorly because the school started a prosecution clinic that another school declined. What I care about is reducing the 2.3 million people we cage behind bars and barbed wire. As I said, if UW were to start the right kind of prosecution clinic, it could become one of the most influential things the school could do in ending mass incarceration.

I think we have an enormous opportunity to break the cycle of prosecutors who are unexposed to the big problems in our criminal justice system prior to starting their jobs.

Now, I do acknowledge that all of these reasons rest on the law school putting together the right curriculum for the clinic. But I am confident and encouraged that it will happen. I know that Dean Testy cares about mass incarceration because if she didn’t, I wouldn’t be attending law school at UW.

Just my two pennies.