JOSH BOWERS: Welcome tothe Criminal Justice Panel.
Welcome to law school.
Congratulations on your success.
My name is Josh Bowers.
I am a professor here.
I teach mainly criminal lawand criminal procedure classes.
I also teach them othercourses as well, occasionally constitutional law.
Every year I teach aseminar with my colleague Charles Barzun called Ruleof Law and Threats to It.
In my former life, Iwas a public defender at the Bronx Defenders– Holistic Defender Office,obviously in Bronx County, New York.
Sounds a little bitlike a superhero outfit, but we kind of thoughtof ourselves that way.
And before that I wasa white collar defense attorney for a year at aboutique white collar defense firm in Midtown Manhattan.
So, you know, I'm happy to talkto you guys about private side defense work, indigentdefender work, and criminal justicemore generally.
And actually that'swhat we're going to talk about today, obviously,is criminal justice– oh, also I should mention I amformerly co-director and still faculty advisor of the programin Law and Public Service.
I don't know if anyof you guys just came from CrystalShin's panel, but I've worked for a long timewith the public interest program, the Law andPublic Service program, and, informally, withother public interest efforts at the law school.
So I want to talk to youtoday about what it's like and what you canexpect when it comes to studying criminal law andcriminal justice at UVA law school.
So what you're definitely goingto study, almost no matter where you go to lawschool, because it's pretty much a corerequirement for 1Ls at any law schoolin the country, is what's calledsubstantive criminal law.
This is the 1L criminallaw course, the required 1L criminal law course.
And what you can think of itas is the what of criminal law.
What do we punish? The substance of crimes,that's why it's called substantive criminal law.
And to some degree it's how wego about making criminal law.
And to put that simply, criminallaw is somewhat special when it comes to first yearcourses, because it's your one opportunity to engagein the legal skill of statutory interpretation.
And there's goodreason for that.
So contracts andtorts and property may be dictated bywhat's called common law, by judicial decisions, by kindof reading the judicial tea leaves.
Criminal law is not like that– or it's not entirely like that.
There's still a commonlaw element to it, there's stillinterpretive elements, but interpretation of what? Of written statutes.
And the reason forthat is we want to be especially carefulbefore bringing down the hammer of the state.
Bringing down this– all lawhas effect on people's lives, but only one body oflaw carries the stigma and the hard treatmentof criminal punishment.
So at least ostensiblywe're supposed to be careful with that.
Now what statutes are welooking at when it comes to substantive criminal law? At pretty much any so-callednational law school, what you are lookingat is not exclusively the body of law local tothat particular law school.
So yes, we will touchon Virginia statutes, but we will not look exclusivelyat or even predominantly at Virginia statutes.
We'll look for national trends,minority trends, majority trends, and that's to prepareyou to practice criminal law just about anywhere.
The other big box ofcrim law related courses, beyond substantivecriminal law, is what's called criminal procedure.
Really, the how of how crim lawactors, how the stakeholders, how the professionalsdo their work.
The police officers, theprosecutors, the defense attorneys, and the judges.
And this class in turnseparates– not class– this box in turn separates intokind of two halves of classes.
Criminal procedure classesthat focus on investigations, pejoratively called, cynicallycalled Cops and Robbers– how police officersdo their work.
And the other half is calledAdjudication, pejoratively called Bail to Jail, asif those are the only two things that can happen, right? And Adjudication whatwe're really talking about is principallyconstitutional regulation of the work ofdefense attorneys, prosecutors, judges, whetherat trial, the lead up to trial, or plea bargaining.
We look at the constitutionalregulation of plea bargaining.
And for that matter, Iteach an upper level seminar called Plea Bargaining,which focuses exclusively on that practice.
The normative dimensionsof it, its problems, and the practical implications.
And then Investigation'sreally interesting class.
Focuses also onconstitutional regulation, [? in care ?] of the police.
Fourth Amendment,searches and seizures, unreasonable searchesand seizures.
It's fascinatingmaterial and extremely meaningful andimportant, because it has real world consequencesthat you guys are well aware of.
Look no further than a debateabout Black Lives Matter movement.
These are the casesthat bubble up into the public consciousness.
Likewise, FifthAmendment regulates the conduct of police officers.
Think about Miranda, whichyou guys are probably already familiar with theMiranda warnings, right? OK.
When you're takingcriminal procedure, you can either take– the doctrinal course as opposedto the upper level seminars, which you can also take– you can either take the threecredit Investigation class all by itself, dealing withthe constitutional regulation of the police, the threecredit Adjudication class all by itself, dealing withwhat happens after arrest, really from chargeall the way up to adjudication todisposition, or you can take both of these threecredit classes for six credits, or you can take a class that Iteach, the four credit Criminal Procedure Survey, whichincludes some of both sides.
Some of both halves.
What else do I want to sayabout Criminal Procedure– I mean, at the endof the day when you're talking aboutcriminal procedure you're talking about the rules ofwhat makes a fair process, or at least what's supposedto make a fair process.
But even that turns into thisdebate about what is fairness? Is it right treatment,or is it accuracy? Is it OK that youhad a sleeping lawyer because you were guilty anyway? Or do we say no, there's justsomething wrong, something ineffective.
It's a right tocounsel doctrine, and ineffectiveassistance of counsel.
There's something ineffectiveabout not having that advocate zealously advocating on yourbehalf throughout the trial, independent of whetheryou're actually guilty of the crime or not.
And at a higherlevel of abstraction, whether we're talkingabout criminal procedure or we're talking aboutsubstantive criminal law, for that matter– any public law course, whatwe're ultimately talking about is the balance betweenindividual liberties, whether that'sliberty, whether it's right to self-determination,autonomy, whether it's equality, whetherit's dignity, and public safety and order.
And the state's claim,if it has that claim, to that particular regime ofsocial order it's pursuing.
That is to say, when isthe state our friend, giving us benefits andsubsidies, versus when is the state a threat to us.
This is core to allpublic law courses, but it's especiallyprofound when we talk about criminal lawand criminal procedure.
What do our enforcementand punishment practices have to say about us, aboutwho we are as a people? With that grand chargebehind us, I just– a little more on the nittygritty, the nuts and bolts.
So you've gotSubstantive Criminal Law during your 1L year.
You've got CriminalProcedure which you can take as an elective atany point throughout your time here, or not at all,if you if you decide that criminal law wasenough, but especially Investigations, very rich,very interesting materials.
Beyond that there are lots ofupper level seminars on crim theory seminars, crimprocedure seminars, substantive criminallaw seminars, seminars onaffirmative defenses, seminars on socialscience and the law.
Professor Harman's class,Law of the Police, which has become something of a novel– sorry, national model.
Kim Ferzan is oneof the foremost crim theorists in the country.
You take a practical class,like my Plea Bargaining class, or you can take anexperiential class, like the Prosecution Clinic,the Defense Clinic, the Criminal Defense Clinic, or for thatmatter, the Innocence Clinic.
And there are ways to getinvolved in criminal justice even without– or even before you getup to 2L and 3L year where you're doingclinical work.
So for instance, you can becomea part of a pro bono project during your 1L year.
In addition to a bailreform project which I've been involvedin– bail reform is extremely topical issue incriminal justice right now.
I'm also a member ofthe civilian review board for the cityof Charlottesville.
And in both capacitiesI've sort of set up my own mini probono projects and brought 1L students into those efforts.
And there's lots ofopportunities like that.
There's the externship program.
I don't know if you guys aregoing to go to the externship panel, but a numberof the externships are in the criminal law domain.
Even our Supreme Courtclinic, it's not exclusively about crim cases.
But more often thannot it seems like when cert is granted to the SupremeCourt clinic, when they get to argue and briefs theircases before the Supreme Court, it is for crim law cases.
They get cert grantedon crim law cases, and we just got a reallyexceptional crim law faculty at this law school.
I mean, my colleaguesare really my heroes because they're notjust exceptional in the sense ofscholarship, they're really excellent teachers who careabout their teaching a lot.
And I don't mean to badmouthany law school in particular, but I've been affiliatedwith several law schools, some of which care moreabout teaching, some of which care less.
This is a law school thatcares a lot about teaching.
It doesn't mean that everyteacher you have while you're here is going to be a greator an exceptional teacher, but everyone'sgoing to bring it.
Everyone's going to try.
And that's really valuable.
That's really valuable.
I mean, that's whathelps build a community.
So people like Anne Coughlin.
I co-teach with her sometimes,and I'm just in awe.
She's an amazing teacher.
I'll give you a list ofthe names of people working in the crim lawdomain here, and I'm sure many leave somepeople out, but John Monahan, social scienceand criminal law.
Barb Armacost, JohnJeffries, who's currently working on [? Main ?]Grounds, but will come over, I'm sure, to teach a classor two every now and then.
Richard Bonnie, who just aboutwrote the book on insanity.
Daryl Brown, a publicdefender like myself.
Rachel Harmon, aleading scholar when it comes to regulationof police practices, and Coughlin whoI just mentioned.
Likewise, Kim Ferzan,who I also mentioned, as a really prominentcrim theorist.
Since Criminal Law is the courseyou are all going to take, and you're goingto take it soon, almost wherever yougo to law school, I thought I'd talk a little bitabout that course in particular and what you can expect from it.
I mentioned that itis a statutory course in orientation.
One of the things you takeup almost immediately when it comes to criminal law is thepurposes of punishment itself.
Why do we punish? And these purposesoften break in two different conceptualframeworks, but typically break into four categories:retribution, deterrence, incapacitation,and rehabilitation.
In a nutshell, retribution is– some people frame itas an eye for an eye.
But what do you deserve? Let's get even withthis person for doing this bad thing, thesocially costly thing that he or she did.
Deterrence is notso retrospective, it's more prospective.
Retribution's looking backat the conduct you did and saying that conductwas blameworthy, for X, Y, or Z reason.
Deterrence is sayingwell, let's look forward and try to minimize the chancethat this happens again, by teaching that person a lessonand by expressing that lesson to the rest of the community.
To say if other peoplebehave like this, you are going to face thesame sets of consequences.
Incapacitation– I'll give youa cartoonish version of it.
It's actually more sophisticatedthan this, but sort of says, well, OK, we can try toteach people lessons, but the best way to make surepeople don't do something again is just to lock them up.
And it's moresophisticated than that– and then rehabilitationis saying wait, no– it's both lookingbackwards and forwards, saying there's a reasonwhy this happened and we can sort of fix whatails this person to make sure it doesn't happen again.
So it's something closerto a public health approach than a blameand shame approach.
Drug courts might bea modern instantiation of a rehabilitativecriminal justice model.
We talk about the differentpurposes of punishment, and we also talk about thecrime definition process a lot, which I alreadysketched out to you.
Statutory in nature.
You might say– again, wetouched a little bit on why, but it's basicallythat the touchstone of the principle of legality.
The rule of law as appliedto criminal justice.
The touchstone is publicityand precision, what's sometimes called notice and standards.
This idea that thestigma and hard treatment of criminal justice demand thatwe make especially clear to you at the front endwhat is prescribed so you can plan yourlife accordingly, and that we rein in– we limit– the ability–now, discretion still exists in our criminaljustice system, but to the extent possible,we rein in that discretion by putting in placecriteria or standards for enforcement and punishment.
The rules of the game forthe police, the prosecutors, the defense attorneys,and the judges.
And then we move on to thebasic elements of any crime.
When we talk about thebasic elements of any crime, you may have somefamiliarity with this where you say, OK, well,the elements of burglary are breaking or enteringa building with intent to commit a crime therein.
Yes, those are the specificelements of burglary.
But at core theelements of crime– crime must contain elementsthat fall into two camps, and we kind of needboth of these camps.
So I think you guys alreadyintuit the answer to this, so let me just ask you a question.
My 15-year-old daughter usedto be a very neurotic kid, and when I first got hereshe was about five years old.
I'd sort of watch her expresssome of her anxieties, and one of her anxietieswas she would say something like this to me.
She's rule bound kid, too.
She'd say– less sonow as a 15-year-old, but that's just that'sthe passage of time– but she would say, "I'm worriedI've done something wrong, because I was thinkingabout hitting my brother.
" And what do you thinkour question for her– what do you think thefollow up to that was? What do you think we said? She said I'm just thinkingabout hitting my brother.
Yes! Did you? Did you do it? Did you do it? Did you engage in conduct? This is core to criminal law.
We don't– or at leastwe're not supposed to– punish people for justtheir bad thoughts.
Even their bad resolutions.
It's their bad actions.
We need to have someamount of activity.
You might say, wellwhat about attempt, what about uncompleted crimes? Significantly, even foran uncompleted crime, we demand that you tooksteps in the direct– what some have calledsubstantial step, or an overt action infurtherance of the crime.
It's not enough that youjust said I am set on doing.
It's not enough that youwrote it in your diary and said I'm going to do this.
Conduct is requiredfor criminal punishment in a small l liberalcriminal justice system, a criminaljustice system that hews to the rule of law.
Now something else shewould sometimes say is– she'd get troubled bythe differences between– or she didn't see thedifferences between a lie, and a joke or a story.
She's sort of saying butthese things didn't happen, and I'm saying they did.
Aren't I lying? What would you say to her there? How has she not? Yeah, exactly.
Now you're actuallytaking one of the mens rea terms of criminaljustice, which is malice.
But yeah, it's enough tosay in colloquial terms the intent is differentas between the two.
Your mind state is differentas between the two.
What's called your mens rea isdifferent as between the two.
In one instance, you havean intent to deceive.
That's what makes it a lie.
In the other instance, you havean intent to make someone laugh or entertain them.
That's a differentform of intent, and one intent is worthyof criminal punishment, and one intent is– or may beworthy of criminal punishment, and one intent is not.
So it's not just– and this is a term oftenused in old criminal law– it's not just theevil doing hand, it's also the guilty mind.
Oliver Wendell Holmes said– I'm paraphrasing here, somethingalong the lines of even a dog can tell the difference betweenbeing kicked and stumbled over.
The conduct ultimatelymay be the same, and even the harmmay be the same.
The dog may bejust as physically injured by the stumbleas opposed to the kick, but the kick is intentional.
What old criminal wouldcall malicious, right? Now it could be that thereis room to criminally punish even the stumble.
Perhaps the person–this is the dog's domain, and the person is recklesslyrunning about this domain in a dangerous manner.
We might say that that kindof mind state, recklessness, is also worthy ofcriminal punishment, but that's exactly the point.
And that's whatwe drill down to.
There's lots of differenttypes of mind states that could be coupled with lotsof different types of conduct.
The intention or purpose,knowledge, recklessness, negligence– isnegligence sufficient for criminal culpability? This is a big pointof controversy.
Then we also explore theseweird, kind of idiosyncratic corners, major pointsof controversy– where, notwithstandingeverything I just said, the criminal law says incertain small circumstances we're going to have what'scalled strict liability crimes, or strict liability elements.
We're going to remove thistypical core requirement, and that's what these typicalcore requirements are, conduct and mens rea.
So one more in that vein.
I remember my daughteronce, who wandered through the neighbor's yard.
Allowed to do so, nottrespass, the neighbor had given permission.
But it was a summerday, dewy grass, grass stuck to her shoes.
And I saw her swatting atthe grass on her shoes.
And I said, "What's the matter?" And she said, "Istole their grass.
" And– you know– one might– so OK,play defense attorney before you've evengone to law school.
What would your defenses be? What does she lack? Why is this almostcomical to our ears? Yeah! SUBJECT 1: She was just walking.
JOSH BOWERS: Yeah, how do we– yeah! How do we define larceny? Larceny, stealing,is typically defined as taking property ofanother– that's the conduct, yeah, she did it, you might say.
She'd have a de minimis defense,because the conduct was such a trivial nature, whatever.
There are diminished–but the better defense is on the mens rea front.
Taking property ofanother– larceny's taking property ofanother with an intent to permanently deprive.
She had no intent to do so.
In fact, she was tryingto make up for it, even though I'm sure theneighbors are like just go, we didn't want thegrass clippings anyway.
So don't worry, you'reperforming a service.
Then toward the back halfof Substantive Crime– Substantive Criminal Law,different professors do it differently, but forme it's the back half, we start taking up defenses.
And some of thesedefenses have to do with just the inverse ofthe mens rea requirement, saying certain defenses thatdemonstrate that mens rea, that the guilty mind, is lacking.
So a famous case, aGreen case out of Texas.
Green goes out on the range, andhe brings home a bunch of hogs, and the police arresthim because they say those weren't your hogs.
And he said, yeah, you'reright, they're not my hogs, but I thought they were.
So he's offering what's calleda mistake defense, right? Now one question is, is hismistake genuinely held– that is to say is it honest– but let's assumethat it was honest– then we say, when isa mistake sufficient? Well, sometimes ifit's merely honest, sometimes it has to behonest and reasonable.
From there we move onto affirmative defenses.
These are things youmight be familiar with from movies and TV and frompopular accounts in the media.
Affirmative defenseof excuse is insanity.
In affirmative defense ofjustification, one of them is self-defense.
So we take up thosequestions as well.
All right, so that isSubstantive Criminal Law.
We are now pretty deep in.
So I could talk moreabout Criminal Procedure, but I think I'll just openit up to questions instead.
These can be questionsabout anything.
It don't have to be aboutSubstantive Criminal Law.
It can distributed by publiclyinterest opportunities having to do with criminaljustice at the law school.
SUBJECT 2: So backto the pro bono thing you were talking about earlier.
I kind of have thisproblem [INAUDIBLE] I live in a big city,and I think pro bono for big city schools– it'seasy to find [INAUDIBLE].
JOSH BOWERS: Yeah, so– I was actually talkingabout this with a student at the end of thelast session as well.
So there's trade offs, right.
So the obvious plus at abig city is that there– a place like New York– lots of different publicinterest organizations within a stone's throw.
But the law school may nothave a deep or meaningful relationship with any of thosecivil or criminal legal service offices.
By contrast, we've gotthe Legal Aid Justice Center inCharlottesville, which is one of the premiercivil legal services offices in the country.
Does some criminalrelated stuff as well.
And they're all–well, not all– a great number of the lawyersthere our former graduates.
They help us run our clinics.
I'm on their board,my wife works there.
We've got an intimate connectionwith not just LAJC but some of the otheroffices in the city, because it's a smaller pond butall the fish know each other.
And so that actually leads to– I almost feel like itleads to the ability to have this kind ofpro bono experiences right away withoutgetting lost in the crowd.
And frankly, we also have anexternship program, full time and part time externshipsand other metropolitan areas nearby.
So lots of people do a part timeexternship with a office in DC or in Richmond, andthey're still coming back to do their classes here.
I'll just say this.
For a college town wehave an outsized number of two professions, andI'm looking at Warren when I say this becausewe're mutual friends with one group of these people.
I feel like there area lot of architects here, because everyone's likeoh, the Jeffersonian vision.
You know, Jefferson was anarchitect, I'll be one, too, and I'm going to stay here.
And there's lotsof lawyers here.
There are a lot of lawyersworking locally here.
All of whom we areintimately familiar with and we have goodrelationships with.
Just a couple daysago, I was sitting in the office of Joe Pletena,our commonwealth attorney.
He helps run ourprosecution clinic, and he was talking to meabout a number of my students, and he was talking about thepro bono project I was running through the civilian reviewboard and ways he could set up more pro bono opportunitiesat the commonwealth attorney's office.
It works out wellfor us, but there is that tension which any lawstudent should think about.
More offices but lessof a relationship, or fewer offices andmore of a relationship.
SUBJECT 3: Is the[? Hunton-Andrews ?] current partnership in Richmondor Charlottesville? JOSH BOWERS: I don't know,because Hunton-Williams has offices in bothplaces, and so I don't know if it's local toone or it could be either.
Likewise, LAJC has an officein Richmond, Charlottesville, and northern Virginia.
SUBJECT 3: So– sorry, doyou guys interface at all with SARA or the Shelter forHealth and Emergency here? JOSH BOWERS: I'msorry, can you say– SUBJECT 3: Do you guys interfacewith SARA or the Shelter for Health and Emergency here? JOSH BOWERS: Oh, yes! At first I thoughtyou were saying Sarah, as in a person named Sarah.
I was like, I knowlots of Sarahs.
SUBJECT 3: That's SexualAssault Resource Agency.
JOSH BOWERS: Yeah,and CASA nearby.
It's not just LAJC, so thankyou for supplementing that.
The Public ServiceCenter and Kimberly Emery is our pro bono coordinatorcan give you has a wealth of information about– I know some of thecrim related stuff that I have helped students– I've been a liaisonfor students.
Those organizations,or those opportunities.
But Kimberly Emeryand Annie Kim– or for that matter,Crystal Shin can give you a more whole picture.
SUBJECT 4: How many crimelaw students would you say are you some aspect ofexperiental learning, whether it's clinicsor externships.
How many law students aregiven that opportunity? JOSH BOWERS: Everyone'sgiven the opportunity.
Which opportunity– you know, itmay be my wife runs special ed pro bono projectyear after year.
And some years she'll get 10applicants for six or seven spots, and she'll have tomake some hard decisions.
But there are other pro bonoopportunities for those three or four students.
Other times she'll get sixapplicants for seven spots.
So there's lotsof opportunities.
In terms of how manystudents take advantage of those opportunities,I think students who are interested in crimpractice, whether it's prosecution or defense, havea good sense that they really should do that kindof work right away.
And I think that'sthe right approach, so I feel likeevery student I talk to who's interestedat least in being a prosecutor ora public defender or otherwise doing criminaljustice reform or something criminal law relatedstraight out of graduation or a clerkship, they'reseizing those experiential opportunities, whether it'sextracurricular pro bono project, or curricular,like clinical offering, they're seizing thoseopportunities while they're here, and they should.
And this is actuallysomething I said during the last [INAUDIBLE].
I think it'sespecially important if you're interestedin criminal law and you think youmay end up going to a firm for acouple of years, you want to build thatcrim law resume now.
Because you do not wantwhen you're essentially transitioning away from afirm into the job that– this has been my dream jobsince I went to law school, whether it's prosecution orpublic defense, what have you– you don't want it tolook to an employer like you're justsick of your firm.
You want to conveythrough your resume the idea that this hasalways been my plan, this has always been my goal.
Are there other hands? Have we run– yeah, we're over.
Yeah, you're like of coursewe have no more questions, we want to go eat lunch.
Thank you, guys.
Welcome to UVA.
I hope you choose it.
If you have any questions,follow up with me.
You can contact me also aboutjust the Law and Public Service program if you want,because like I said, I've been a part of thatprogram for a very long time.