Race and Continuing Legal Education: From the Functionalist Approach to the Critical Approach

Abstract

The complex nature of our society dictates that professionals continue to learn in order to remain abreast of the ever-changing knowledge in their field of expertise. Members of the professions make up more than 25% of the workforce and are the primary decision makers for the major institutions and establishments of American society (Cervero, 1988). Cervero maintains that because the public relies on professionals for crucial services, these professionals have a significant amount of control over the lives of people in our society. Continuing professional education helps to ensure quality of life for consumers of legal services in our society. The legal profession in most of the United States imposes mandatory continuing legal education requirements on attorneys. Continuing legal education has resisted social pressure calling for change in the legal profession and has focused primarily on functionalists matters. By far, almost all continuing legal education offerings address the technical details of legal practice. For example, continuing legal education offerings review recent court decisions under the Americans with Disabilities Act or address the details of trial preparation in criminal defense. As such, continuing legal education has failed to address the bigger issue in the practice of law and the legal profession, which is racial inequity. Racial Inequity in the Legal System Many of the problems related to criminal justice issues in the United States today involve issues of race and ethnicity Consider the following: * Half of all the prisoners in the United States (49.4% in 1996) are African American, despite the fact that African Americans represent only 12% of the United States' population (Walker, Spohn, & Delone, 2000). * The incarceration rate for African American men is seven times the rate for white men (3,250 per 100, 000) compared with 461 per 100,000 (Walker, Spohn, & Delone, 2000). * African Americans account for only 13% of all regular drug users, but make up 55% of those convicted for drug possession and 74% of those imprisoned for drug possession (Donziger, 1996). * Hispanics were 17.5% of all prisoners in 1996, up from only 10.9% in 1985 (Walker, Spolm, & Delone, 2000). * About 40% of the people currently on death row and 53% of those executed since 1930 are African American. (Walker, Spohn, & Delone, 2000). As these data show, race is a significant sentencing factor in criminal cases. These data indicate that African American and Hispanic offenders receive harsher treatment than white offenders in the criminal justice system. Numerous studies have been conducted to investigate race and sentence severity in the legal system. Admittedly, these studies have failed to produce uniform findings of racial discrimination in sentencing. However, many experts have asserted that this is because discrimination against racial minorities in sentencing is not universal, but is confined to certain types of settings, and defendants. Spohn (1996) maintained that sentencing decisions throughout the 1990s reflect contextual discrimination. For example, judges in many jurisdictions continue to impose harsher sentences on racial minorities who murder or rape whites, and more lenient sentences on racial minorities who victimize members of their own racial or ethnic group. Similarly, judges in some jurisdictions continue to impose racially-based sentences in less serious cases. In such borderline cases, racial minorities get prison, while white offenders get probation. In jurisdictions with sentencing guidelines, judges depart from the prescriptive sentence less often when the offender is African American or Hispanic than when the offender is white. Judges continue to take race into account, either explicitly or implicitly, when determining appropriate sentences (Spohn). Despite the research data and current statistics, which overwhelming point to discriminatory practices in the American criminal justice system, practicing lawyers are not made aware of this reality in their mandatory continuing legal education. …