Reality Check: Mass Incarceration and Teaching Lawyering Skills

Introduction

When creating assignments for the first-year legal writing course, I frequently use fact patterns based on or inspired by real cases, a valuable practice for helping law students learn lawyering skills.^[1] When the fact patterns are part of a criminal law problem, the defendant often faces jail time. In one instance, the real case was on appeal as my students worked on their appellate brief assignments; the appellate court decided the case at the end of the semester. For all the days of the semester, the real person named as the defendant was living in a state prison, ultimately learning that he lost his appeal and would remain incarcerated for two years.

That defendant first spent time in a county jail that had been sued for a sexual assault committed by a corrections officer, for not addressing plumbing problems that caused raw sewage backflow, and for failing to provide timely mental health care.^[2] He then spent his time in a state prison under the custody of a Department of Corrections that was sued for the use of harsh punishments following false positive drug tests and delays in providing health care.^[3] Additionally, an investigation into the conditions of solitary confinement revealed that people were “not receiving basic quality-of-life care, such as frequent showers, health care, visitation, regular meals and enough toilet paper” and detailed “‘dehumanizing and traumatizing’ restraint practices used by the department, including spit hoods, pepper spray, tasers and shock shields.”^[4] These are the experiences and conditions in just one state, illustrating that incarcerated individuals are subjected not only to confinement and its inherent impacts, but also to additional threats to their mental and physical health and to violations of their constitutional rights.

The experience of following a specific defendant’s case in real time over the course of a semester drove it home for me: When we teach students lawyering skills, we teach them how to use these skills in a legal system that creates mass incarceration and the conditions of confinement that stem from it. We are accountable to that reality, whether we teach in the realm of criminal law or not.

I. The Need to Teach About Mass Incarceration in Law School

In the United States, almost two million people are incarcerated, including in state and federal prisons, local jails, and ICE detention.^[5] The national rate of incarceration is one of the highest in the world, and each individual state incarcerates more people per capita than most countries.^[6] Within these numbers are disparities in race and ethnicity, including disproportionate numbers of Black and Latinx people in prisons.^[7] Additionally, the legal system’s reliance on incarceration as opposed to alternatives bears “social, moral, and fiscal costs.”^[8]

Regardless of their specific field, law students will become lawyers in a legal system that is marked by these numbers and their impact, and they will be part of working against or maintaining a status quo of mass incarceration. Students who plan to become criminal defense lawyers bear the additional weight of representing individual clients who are incarcerated or facing incarceration. Students who plan to become prosecutors will grapple with what it means to seek incarceration for someone; as Professor Alice Ristroph notes, mass incarceration “requires a great many individuals who are willing to put a still larger number of other individuals behind bars.”^[9]

Students who do not envision a pathway in criminal law should also be aware of the impacts of mass incarceration and the relationship between their work and incarceration. For example, civil cases can lead to incarceration if someone does not follow a court order, and civil cases can lay the groundwork for a criminal prosecution. Additionally, the consequences of a civil case could lead someone to engage in criminal activity, such as if they have a debt due to having to pay monetary damages, or if the case caused them to lose employment or housing. Criminal and civil law are intertwined in a comprehensive legal system that places responsibility for mass incarceration on all lawyers. Students therefore must consider mass incarceration and its impacts in deciding how they will practice law.

Criminal law courses, where such content may be expected, don’t reliably address the lived experiences of people who are incarcerated. Professor Sharon Dolovich, who specializes in prison law, asserts, “It is during the administration of punishment that the state’s criminal justice power is at its zenith, and at this point that the laws constraining the exercise of that power become most crucial. Yet it is precisely at this point that the curriculum in most law schools falls silent.”^[10] Furthermore, “[M]ost law students at most schools will not even realize the vast reach of the criminal law post-conviction, much less that there are millions of people in prison or jail or on probation or parole who are struggling daily to navigate complex and highly consequential legal regimes without counsel.”^[11] She makes the point that, even if a law school doesn’t offer a prison law curriculum, prisoners’ rights topics can be incorporated into other courses.^[12] She doesn’t specify legal writing courses, but such courses are ripe for incorporating prison topics given that students often work through criminal law problems to develop lawyering skills.

Professor Ristroph argues that the substantive criminal course generally required in students’ 1L year has “contributed affirmatively to the collection of phenomena commonly labeled mass incarceration . . . by telling a particular story about criminal law as limited in scope, careful in its operation, and uniquely morally necessary.”^[13] She explains how this story arises due to the common model of the substantive criminal law curriculum, which includes an emphasis on homicide over more common and less serious crimes,^[14] an emphasis on crimes over the mechanisms of enforcement (which implicate lawyers),^[15] and an emphasis on incarceration over other options for consequences.^[16] Through this model, “law schools have helped to facilitate a carceral state by supplying it with willing agents, and more specifically, willing lawyers.”^[17]

Legal writing and lawyering skills courses also do not reliably address mass incarceration, and it is not included in regular discussion of what such courses should address. For example, neither the Association of Legal Writing Directors’ 2025 Biennial Conference nor the Legal Writing Institute’s 2024 or 2026 Biennial Conferences (all national conferences) contained programming that directly addressed the relationship between teaching lawyering skills and preparing students to practice in a legal system that includes mass incarceration.^[18]

This is a missed opportunity for legal writing professors. Whether we acknowledge it in the classroom or not, the context of mass incarceration—and all that stems from it—exists. We best serve students and their future clients if we not only acknowledge it but also prepare them to engage with this reality as part of their development of lawyering skills. This reality should inform how students approach conducting a client interview, communicating with a client about possible outcomes and goals, writing a memo about the merits of a case, formulating arguments for a judge in a brief or in court, and understanding the importance of their role as counsel. Lawyers need to be aware of conditions because they need to be able to have informed conversations with clients as they make decisions. Prosecutors need to understand what they are asking for people to be sent into. Lawyers who have a client in custody need to have an awareness of what circumstances their client may be dealing with as they come into a meeting. Lawyers representing people while they are in prison may be in a role to provide other legal support, such as access to medications. Lawyers in civil cases need to provide complete counseling to their clients about possible consequences if the case could lead to possible criminal charges.

II. Incorporating Mass Incarceration into the 1L Legal Writing Course

I’ve incorporated materials, discussions, and speakers into my classes to expose the conditions of confinement that are inherent to mass incarceration. This work brings the voices of people who are or have been incarcerated into the classroom. It asks students to critically consider the powers and responsibilities of lawyers in relation to the carceral system. It also inspires students to understand that effective counseling of clients includes not only their legal goals but also their personal ones.

I take this approach in my classes because of years spent providing support to people incarcerated in both state and federal facilities, being mentored in this work by former political prisoners and legal workers and visiting loved ones in jail and prison. However, the personal experiences of a professor shouldn’t determine whether students in a course are exposed to the realities that unfold under mass incarceration as they learn about lawyering skills. To help expand the inclusion of mass incarceration into the law school curriculum, I will share practices I’ve developed that can be incorporated into legal writing and lawyering skills classes.

A. Underground Scholars Language Guide

At the start of a term, as a foundation for communication about incarceration, I share with my students the Underground Scholars Language Guide from the Underground Scholars Initiative.^[19] The guide is available online with a note that includes: “This is not about euphemisms or glossing over people’s actions rather [sic] it is about reclaiming our identity as people first.”^[20] For example, the guide suggests using a term such as “people convicted of drug violations” since referring to people as drug offenders “continues to reduce one’s identity to a particular type of conviction,” and to refer to someone as “person on parole” rather than parolee.^[21]

After introducing my students to the guide, we have a brief class discussion about it, and I highlight that they should keep the guide as a point of reference to use throughout the term and beyond. Professor Amanda Stephen describes, “The Language Guide helped me provide students with concrete examples of ways to revise language to humanize the people involved in legal disputes, something I believe is critical to inclusion and equity in our profession and not typically addressed in law school.”^[22]

B. Jailhouse Lawyers

I assign my students to read the book Jailhouse Lawyers: Prisoners Defending Prisoners v. The U.S.A. by Mumia Abu-Jamal, a Black liberation activist, journalist, and longtime political prisoner.^[23] The book tells the stories of jailhouse lawyers (imprisoned people who teach themselves about the law and advocate for themselves and other prisoners), as well as street lawyers (the traditional notion of a lawyer, which our students are studying to become). Through telling these stories, Abu-Jamal addresses issues of race, class, and gender in relation to the legal system, and the book exposes harsh realities of the legal system that law students should be aware of but that aren’t generally found in textbooks. Students can learn a lot about the legal system and their role as advocates by considering how the system treats those who are locked away and often ignored.

The book puts law students in conversation with voices that aren’t often heard in the law school classroom. These are not stories as written in decisions by judges, but stories written from the perspectives of people who have direct experience with some of the darkest corners of the legal system. Abu-Jamal writes,

This is the story of law learned not in the ivory towers of multibillion-dollar-endowed universities, surrounded by neatly kept lawns and served by the poor. . . . It is law learned in the bowels of the slave ship, in the hidden, dank dungeons of America—the Prisonhouse of Nations. . . . It is law learned in a stew of bitterness, under the constant threat of violence, in places where millions of people live, but millions of others wish to ignore or forget. . . . It is a different perspective on the law, written from the bottom, with a faint hope that a right may be wronged, an injustice redressed.^[24]

As Professor Dean Spade describes in a piece that encourages prospective law students to be realistic about what can be accomplished through attending law school, “US law is fundamentally structured to establish and uphold settler colonialism, white supremacy, capitalism—the legal system will not undo these things.”^[25] While perhaps most evident from situations such as that of Abu-Jamal, this foundation of the legal system extends across criminal and civil areas of law. Therefore, shining the light into the dark corners is critical to students’ understanding of how the broader system functions and what role they will play.

I recognize that asking students to read a book can feel like a lot on top of all the other demanding assignments of legal writing classes. To address this concern, I give my students as much time as possible to read the book, whether that be a whole term (semester or otherwise) or full school year (if I teach the same students across multiple terms). I break up when the students are expected to have read batches of chapters so that the reading is manageable and they are able to digest it, not see it as a burden on top of their other reading assignments. Chapters could be read independently if assigning the whole book doesn’t work within a class’s timeline. I also weave what students learn from the book into class discussions about lawyering skills and professional identity, as well as into written reflection assignments, so that the pieces come together for them. I sometimes invite students to write letters to Abu-Jamal, and they have the option of mailing their letters to him.

Even with the amount of reading that law students must do, the overwhelming feedback is that the book is a welcome read. Students have told me of how the book impacted their career interests (with one student even deciding he wanted to dedicate time to representing people in parole and clemency hearings), informed them about context for some social movements and demonstrations, reminded them why they wanted to attend law school in the first place, gave them motivation to work to change the legal system, and helped them gain a better understanding of how to work with clients who are incarcerated and what those clients may be navigating. They write about being deeply impacted by the stories in the book, and they express being grateful to have read the stories as law students so that they may keep them in mind from the very beginning of their careers.

C. Tilted Scales

For every class I teach, I assign chapters from the book A Tilted Guide to Being a Defendant by the Tilted Scales Collective, a group of legal support organizers who have years of experience working directly with political prisoners and other incarcerated people.^[26] The primary audience for the book is people who are facing possible time in prison, and the book focuses on how to navigate that situation. The book has a follow-up companion called Representing Radicals: A Guide for Lawyers and Movements that students may also find helpful, but I continue to prioritize A Tilted Guide to Being a Defendant precisely because it considers the defendant’s perspective, which is rarely included in legal education.

As a foundation to learning about lawyering skills and client-centered lawyering, I have students read Chapter 2: Setting and Balancing Personal, Political, and Legal Goals. This Venn diagram of goals is an effective model for approaching client interviewing and counseling, and the chapter acknowledges the weight that a possible looming prison sentence may have on a client’s decision-making, a weight that a lawyer also needs to take into consideration:

A final word on setting your personal goals—it is of the utmost importance that you confront your own fears. Do you want to stay out of prison more than anything else? Prison is a terrible place that is designed to destroy people’s characters, hearts, minds, and souls. Being afraid of prison is healthy! Whatever your fears, try to acknowledge and appreciate them rather than letting them make you feel ashamed or inadequate. Also weigh them carefully as you determine what you are willing to risk, suffer, or lose.^[27]

We should be teaching our students about this fear. It is real and valid and will play a role in interactions with future clients, either because the clients directly discuss it or because it comes out as anger, avoidance, or other manifestations.

The book also has a chapter on Surviving in Prison that includes writing directly from current or formerly incarcerated people who share experiences and advice for others who are facing time in prison. The chapter begins, “While we would love to believe that no one reading this guide will ever need a chapter like this, the unfortunate reality is that some will.”^[28] This framing makes me think of the situation that many lawyers may find themselves in. They work to try to help their clients avoid time in jail or prison, but they also have to deal with the reality that some will be incarcerated, and law students need to engage with that reality as they learn lawyering skills.

D. Guest Speakers

When considering guest speakers, I go beyond the usual lawyers and judges who are so often featured in law school and also invite people who have direct, personal experience with incarceration. I’ve had speakers who were formally incarcerated (some who now work in the legal field), as well as speakers who’ve navigated having loved ones incarcerated. These speakers share what it means to be the people most impacted by a case and its outcome. I also ask them to speak to what was helpful and harmful in their interactions with lawyers, as well as what advice they have for law students as they work towards having clients.

When reaching out to people about speaking to my classes, I try to ensure that I’m not exploiting one of the most difficult experiences someone has ever been through. I make sure that the speaking invite is not only for the benefit of my students’ growth as lawyers, but that the speakers also benefit from sharing their stories, helping to shape the perspective of future lawyers, and having space to advocate for their position on addressing mass incarceration. Some of my guest speakers are individuals with whom I have personal relationships, so I’m able to talk with them about whether speaking to students is something they genuinely want to do and if they feel open to being asked questions by students. If you don’t have personal relationships with people you wish to invite, you can build relationships with organizations that openly address incarceration and work with people who want to speak about their experiences with it, and then approach the organization about your interest in inviting speakers to your class. I’ve previously worked with the National Lawyers Guild (which often has student chapters you may find at your school) to host speakers. Some other options for organizations to consider are Essie Justice Group, National Bail Out, The Sentencing Project, Critical Resistance, The Marshall Project, and many more.

My students have expressed appreciation for hearing from people who have direct experience with incarceration, saying it gave them a new perspective on what incarceration looks like and what someone who is incarcerated may want from a lawyer. A significant lesson for my students is that people are concerned with how their lawyers make them feel—whether they feel heard and cared about.

E. Last Week Tonight Segments

I’ve frequently assigned my students segments of the Emmy-award-winning HBO show Last Week Tonight with John Oliver, which has addressed a variety of topics related to incarceration. Segments are available for free on YouTube, so students don’t incur any cost to watch them, and professors can easily link the segments in a syllabus. The show has covered topics that include not only prison broadly, but also prison health care, prison labor, juvenile justice, ICE detention, and solitary confinement. It has also covered related topics such as prisoner re-entry, bail reform, felony disenfranchisement, prosecutors, wrongful convictions, mandatory minimums, and executions. A search of the Last Week Tonight YouTube channel will produce dozens of segments related to the legal system that may be of use to supplement a class topic.^[29]

Not only do these segments provide students with a well-researched overview of an issue, but I have found that students enjoy learning about topics through this medium. The show and John Oliver are recognizable to them as part of pop culture, watching a YouTube video offers them a break from long reading assignments, and the mixture of important information and humor in the show holds their attention. I do caution them that Last Week Tonight is an adult-oriented program with mature themes and jokes, so they are mindful about whether they want to do something like watch a segment with a child in the room. Overall, the participation students demonstrate in class when we discuss content from the segments proves that they watch the segments, absorb the information, and understand the relevance to our class assignments.

F. Assignments About Real-World Issues

I recently taught in a legal writing program that facilitates having 1L students work on real issues in a real-world context. Seattle University School of Law promises to students: “During spring semester, one of your assignments will be the Real Clients in the First Year assignment, where you will research and write a memorandum under the guidance of your Legal Writing professor that addresses a legal issue identified by a law school clinic or legal nonprofit.”^[30] This assignment allows for students to confront the reality of how the legal system functions and how it leads to mass incarceration, and professors have the support of people in a clinic or at a nonprofit in helping their students to navigate the issue. Additionally, an exploration of this assignment by Mary Nicol Bowman, who was previously the Director of this Legal Writing Program, and Lisa Brodoff, who was a clinical professor, illustrates its potential value for transference benefits between the learning done in legal writing courses and in clinics.^[31] Professors Bowman and Brodoff reflect: “These collaborative techniques allow students to achieve competency in critical lawyering skills more quickly. These techniques also give agency to our students, helping them become reflective practitioners and lifelong learners, linking and applying retrieved knowledge and skills to the ever-changing landscape of legal practice in all its forms.”^[32]

Other schools also provide opportunities to expose students to real issues in a real-world context within their required legal writing and lawyering skills programs. For example, Northeastern University School of Law has a Legal Skills in Social Context program in which first-year students “are introduced to the core skills of effective team lawyering and given an opportunity to put them into practice through an extensive legal research project on behalf of a public-service partner organization.”^[33] Northeastern highlights: “For more than two decades, every Northeastern law student has participated in Legal Skills in Social Context (LSSC), our unique first-year social justice program that prepares students to use law as a tool for social change.”^[34]

The fact that every law student in these programs is exposed to assignments with real social context in their first, foundational year of law school is significant. While clinics, externships, and internships also provide students with exposure to real issues, those opportunities are self-selected by students. The self-selection is appropriate and important for allowing students to gain experience in a specialized area of law, but all law students should also have the benefit of a 1L experience in which they grapple with real issues in context.

While assignments and programs such as these don’t guarantee that the context of mass incarceration in the legal system will be a core part of the students’ learning experience, they offer a solid opportunity for professors to address mass incarceration as being part of our legal system.

Conclusion

As students’ time in my classes progresses, they incorporate what they learn from these assignments and practices into their learning of lawyering skills, from considering what questions to ask in a client interview to how they may formulate a policy argument to how they want to shape their professional identity. Ultimately, students leave my classes having developed lawyering skills that are informed by a greater understanding of the reality of mass incarceration and the responsibility that it places on them in their interactions with and advocacy for their future clients.