Tuesday, September 29, 2015

Lower the Bar

An interesting Room for Debate at the New York Times centers on the Bar Exam, the recent amount of failures and the lowering of standards of the LSAT exam to enable more to attend law school.

The pose this question:  Bar exam scores have declined over the past few years, and last summer, graduates had some of the lowest scores in a decade. This years scores could be even worse. The National Conference of Bar Examiners, which creates and scores the multistate, multiple-choice portion of the exam, maintains that the quality of incoming law students has declined, while many law professors blame the bar exam itself.
Why are so many law students failing the bar exam? 

As I have written many times I find the practice of law to be utterly deceptive and fraudulent. We have a large surplus of Lawyers and yet we have a backlog of cases in the Court system, people begging for legal help and law students with six figures of debt with few positions available that offer salaries commensurate with expectations that the law field demands. While also not experienced or trained enough to properly serve any client be they high or low paying.

We have a Bar Association that puts expensive requirements for schools to be certified to teach law, then we have a Bar Association utterly devoid of any responsibility with regards to the costs of said law schools. Then we have law schools that teach largely theory and very little practical skill set, and then each state with its own bar exam that each prospective lawyer must pass regardless of where they went to law school.

Add to this a shortage of Lawyers in rural areas and the increasing demand for their services to perform even the most basic of law practice.

Is there anything I have missed?

So as one peruses the Debate team and their ideas to resolve this issue, realize that today of all days the ABA actually did something relevant.

The New York City Bar Association released a report on Monday urging federal and state leaders to “make the reduction of mass incarceration a top priority.”

Titled “Mass Incarceration: Seizing the Moment for Reform,” the report offers several recommendations for changing sentencing laws and other policies on the state and federal levels, including repealing or reducing mandatory minimum terms, reducing sentences for nonviolent offenses and providing sentencing alternatives to prison.

Judge Jed S. Rakoff of Federal District Court in Manhattan, who is a member of the City Bar Association’s executive committee, said in an interview on Sunday, “Judges did not make the laws that have led to mass incarceration, but we have had to implement them and we have seen firsthand, therefore, some of the terrible results.”

He added, “We have a role to play in trying to make the public aware of problems in the criminal justice system in our country that we as judges see and participate in every day of our lives.”

Politicians from both major parties, legal scholars and activists have recognized mass incarceration as a critical criminal justice issue, especially after police shootings in Ferguson, Mo., and other places, where protesters have repeatedly made connections between racially concentrated policing, the biases of the criminal justice system and mass incarceration.

Over the years, the number of prison sentences and their lengths have increased for both violent and nonviolent offenses, even as crime rates have dropped. This is largely a result of mandatory minimum terms for certain offenses, such as drug convictions, though there are other contributing factors, the report said.

The report also includes many statistics that point out the cost, both human and economic, of certain criminal justice policies. In the United States, more than two million people are imprisoned, including those in local jails — a quarter of the world’s prisoners.

The report also highlights the racial disparities of incarceration: One in 35 African-American men and one in 88 Latino men are in prison, and African-American men are six times more likely than white men to be behind bars. Since 1970, the report states, the prison population has increased fourfold, costing taxpayers $260 billion every year.

“It is heart-rending to see case after case of young black males who are, because of the severe laws that we have, going to be ripped from their families and often spend some of the most formative years of their lives in prison with devastating effects on them, on their families and on the communities as a whole,” Judge Rakoff said.

The City Bar Association is also creating a task force comprising defense lawyers, prosecutors, judges and others to continue to examine the issue.

The bar association has often weighed in on laws and policies that affect New York State and the city, and Judge Rakoff is among several sitting judges who have offered opinions on mass incarceration.

Though advocates and scholars who study the issue said Judge Rakoff’s stance was symbolic and important, they saw a need for more direct engagement.

Alyssa Aguilera, a political director for VOCAL-NY, an advocacy organization for low-income people affected by H.I.V. and AIDS, the drug war and mass incarceration, said that while it was a positive development to see recognition of the issue at many levels, “ultimately, the way that we are able to see change is through our legislative process and through policy shifts in the city, state and nationwide.”

Heather Ann Thompson, a historian at the University of Michigan who studies mass imprisonment and served on the National Academy of Science’s blue ribbon panel on its causes and consequences, said that the focus on sentencing guidelines was important, but that more attention needed to be paid to re-entry programs and addressing the fallout of mass incarceration.

Additionally, she said, Americans should not forget that mass imprisonment is a political product: “Through the politicians we elected, we chose the disastrous policies that led to the crisis of mass incarceration.

“We didn’t need to do it because of historically remarkable crime rates. We chose it, so we must now unchoose it.”

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