Excerpted From: Nicole Smith Futrell, Practicing with Conviction: Race, Reentry, and the Legal Profession, 20 Ohio State Journal of Criminal Law. 71 (Fall, 2023) (62 Footnotes) (Full Document)


NicoleSmithFutrellWithin recent years, different areas of the legal community have publicly addressed the need for racial justice. The killing of George Floyd and the reckoning with race that followed prompted law schools, bar associations, and court systems, as well as government, private, and non-profit legal organizations, to publicly acknowledge that racial disparities continue to persist in our society. While most of these legal institutions have made some recognition of the fact that the legal system has played a role in perpetuating systemic racism, they have essentially failed to address how discrimination against system-impacted individuals continues to deepen racial and socioeconomic inequities within the legal profession itself.

It is well documented that racial bias is particularly pervasive in the criminal legal system. People of color are stopped, arrested, and sentenced at rates that are disproportionate to their representation in the population. In New York, for example, Black people make up fifteen percent of the state's population, yet they account for thirty-eight percent of arrests. Across the United States, people of color are overrepresented in the legal system but underrepresented in the legal profession. According to recent statistics that have not changed in over a decade, only five percent of lawyers identify as Black and Latinx respectively. The legal profession is not representative of the people it serves in part because of the criminal records that result from law enforcement interactions. Criminal records, whether a conviction occurs or not, serve as barriers to important educational and employment opportunities in the law for many people of color and their families over multiple generations.

While certainly the backgrounds of people seeking to enter the legal field should be considered, the overbroad and stigmatizing factors that are currently used by law schools and state bar admissions administrators serve to gatekeep the profession and exacerbate existing inequities. The legal profession would benefit from the diversity of experience that people of color impacted by the system bring, and yet these are the very people the profession excludes. Rather than embracing the experience of system-involved people, the legal profession utilizes arbitrary evaluations of character and risk to bar system-impacted people from accessing vital social welfare goods, such as education, licensure and employment. This disconnect provides the legal profession from what could otherwise be an opportunity to confront its own role in perpetuating racial marginalization. To repair some of the harms caused by racial bias in the law, the legal profession could serve as its own conduit to a reimagined form of reentry. Reentry in this context would not narrowly focus on individual rehabilitation and treatment interventions, but rather would encourage institutions that have deepened social and racial inequities to take proactive steps to provide access to educational and employment opportunities.

This Essay, which grows from ongoing research highlighted in my symposium remarks, argues that the legal profession, with its history of racial exclusion and active participation in furthering mass incarceration, has both an obligation and an opportunity to adopt a proactive racial equity reentry agenda. Such an agenda would redistribute economic and social resources by creating intentional professional pathways for people with the lived experience of criminalization. An equity-oriented reentry agenda would not only help system-impacted people in rebuilding their lives, but it would also help to reshape a legal profession that has historically reinforced social and racial marginalization.

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The profession has a long way to go to diversify its ranks and redress the harms of mass incarceration. Proactively embracing strategies that engage system- impacted people is a powerful way to support a new approach to reentry and bring greater equity to the law.

Associate Professor and Co-Director, Defenders Clinic; Director, Center for Diversity in the Legal Profession, City University of New York (CUNY) School of Law.