[M]arginality … is also the site of radical possibility, a space of resistance.
— bell hooks (1989, 341)For individuals with a conviction history, the law is a “durable and powerful” presence in their lives (Ewick and Silby Reference Ewick and Silbey1998, 247). Charged, tried, and sentenced in a series of legal rituals, those with prior criminal convictions have experienced the power of the law directly and bear a legally constructed label that is a salient factor in their daily existence. Collateral consequences triggered by a criminal conviction impact fundamental life needs like housing, employment, and public assistance (Ewald Reference Ewald and Henry2017). The law can also impact those with a conviction history by shaping their identity (Chua and Engel Reference Chua and Engel2019). The stigma of a criminal record can negatively impact interpersonal interactions and, in turn, alter one’s self-concept fundamentally. As such, the law is a “shadowy presence” in the lives of those with prior criminal convictions, making the relationship between this population and the law principally adversarial (Sarat Reference Sarat1990, 345).
As part of their reentry process, those with prior carceral contact are increasingly turning to higher education (Chaney and Schwartz Reference Chaney and Schwartz2017; Jeffers Reference Jeffers2017). Legislative reforms that restrict criminal history inquiries on admission applications (Vest et al. Reference Vest, Winn, Tonnesen-Casalegno and Blake2020), that expand Pell grant eligibility (Welsh Reference Welsh2002; Burke Reference Burke2021), and that support grassroots activism on campus (see, for example, Project Rebound 2021; Underground Scholars Initiative 2021) have made higher education more accessible for those with prior criminal convictions (Evans, Szkola, and St. John Reference Evans, Szkola and St. John2019; Stewart and Uggen Reference Stewart and Uggen2020). As a result, many students are successfully completing their undergraduate degrees and subsequently searching out opportunities for graduate education (Murillo Reference Murillo2021; Project Rebound 2021). Public narratives of lawyers with a conviction and organizing efforts in this area suggest that the legal profession, in particular, has gained popularity among those with a prior criminal conviction (see, for example, Hopwood Reference Hopwood2018; Simmons Reference Simmons2019; Binnall Reference Binnall2022).
The legal profession is a seemingly curious choice given the prior experiences of those with a conviction history. Individuals convicted of a crime overwhelmingly describe their interaction with the law as negative (Brunson and Miller Reference Brunson and Miller2006; Vera Sanchez and Adams Reference Sanchez, Claudia and Adams2011). Such perceptions—even when stemming from just one event—can then color impressions of other legal institutions and authorities by shaping an individual’s “worldview” (Chua and Engel Reference Chua and Engel2019, 3; see also Lawless and Fox Reference Lawless and Fox2001; Soss Reference Soss, Anne and Helen2005). In this way, negative encounters can taint how those with conviction histories view the law and legal processes generally, prompting a level of “anticipatory injustice” (Shapiro and Kirkman Reference Shapiro, Kirkman, Greenberg and Cropanzano2001) that can persist even in the face of objectively fair and legitimate encounters (Woolard, Harvell, and Graham Reference Woolard, Harvell and Graham2008). Notably, these perceptions often divide along racial lines, with Black and Hispanic individuals far more likely to experience injustice, and subsequent anticipatory injustice, than white individuals (Hurwitz and Peffley Reference Hurwitz and Peffley2005). Thus, in seeking a career as an attorney, those with conviction histories must negotiate a rather fickle relationship with the law, pursuing admission to a profession that they may simultaneously perceive as unjust.
For those with criminal convictions, a career in law may also seem like an especially daunting career path given the structural barriers to practicing law. Access to the profession requires aspiring attorneys to complete an undergraduate degree, secure acceptance to law school, successfully finish law school, pass the bar exam, and navigate admission to a state licensing agency (that is, the state bar) (LSAC 2021). At multiple steps in this process, applicants are required to disclose a conviction history and subsequently prove that they possess good moral character (Rhode Reference Rhode1985, Reference Rhode2018). For many, this requirement can be emotionally taxing as attempting to demonstrate “worthiness” often requires lengthy descriptions of traumatic events and circumstances leading up to and surrounding a criminal conviction (Rhode Reference Rhode1985; Binnall Reference Binnall2010). Law school admission professionals and state bar officials then scrutinize those descriptions, looking for evidence of candor and rehabilitation, the alleged building blocks of a fit applicant (Aviram Reference Aviram2020). Consequently, while categorized as administrative, the professional licensure process for those with prior criminal convictions reifies the oppositional nature of their interactions with the law.
Thus, for many reasons, the choice to pursue entry into the legal profession seems counterintuitive for individuals with conviction records. Yet it is precisely that contradiction that makes the educational journeys of these individuals a valuable context for study. First, we connect the theoretical concepts of stigma and legal consciousness to develop a framework for understanding the role that social exclusion, identity, and resistance might play in the decision to pursue a law degree. Drawing on data derived from in-depth interviews with twenty-nine prospective, current, and former law students with conviction histories, we then explore why and how one chooses to navigate the path to the legal profession. To do so, we asked respondents about their early lives and views of education, their sense of identity over time, their experiences with the criminal legal system, and their reasons for ultimately choosing to pursue a legal career. After presenting the key themes that our participants described, we situate those results in a broader discussion of identity, resistance, and the diversity of the legal profession.
LEGAL CONSCIOUSNESS, STIGMA, AND RESISTANCE
The study of legal consciousness, or “the ways in which people experience, understand, and act in relation to law” (Chua and Engel Reference Chua and Engel2019, 2), suggests that experiences and interactions with the law are constitutive, shaping how one views oneself and one’s place in society (Ewick and Silby Reference Ewick and Silbey1998; Engel and Munger Reference Engel and Munger2003). For those with prior convictions, the law influences identity in direct and powerful ways (Becker Reference Becker1963; Goffman Reference Goffman1963), most notably by officially and ceremoniously labeling those with a conviction history “criminals” (Lemert Reference Lemert1951; Maruna Reference Maruna2011; see also Garfinkle Reference Garfinkel1956). After formal punishment, the law then diminishes legal status through a series of collateral sanctions triggered by a conviction and justified by the presumed threat posed by the “criminal” other (Garland Reference Garland2001; Ewald Reference Ewald2012). Through the application of labels, the creation of outsider status, and the perpetuation of discrimination, the law initiates and contributes to the process of stigmatization for those with conviction histories (Link and Phelan Reference Link and Phelan2001).
Particularly insidious features of the criminal label are its permanence and its potential to undermine one’s identity (Goffman Reference Goffman1963). The criminal label, once affixed, can be extraordinarily difficult to erase, prompting some to suggest that the stigma of a conviction history is “sticky” (Uggen and Blahnik Reference Uggen, Blahnik, Shapland, Farrall and Bottoms2015) and “almost irreversible” (Erikson Reference Erikson1962, 31). Targets of stigma may also incorporate the negative connotations associated with their group membership into their own self-concepts (Cooley Reference Cooley1902; Mead Reference Mead1934). Through reflected appraisals, an individual bearing the criminal label develops a sense of “stigma consciousness” (Kinch Reference Kinch1963) or the degree to which people realize their labeled status, predict negative reactions from others, and alter their behaviors accordingly (Pinel and Paulin Reference Pinel and Paulin2005, 345). In legal consciousness terms, the law has an indelible impact on how people with conviction histories navigate their social worlds (Chua and Engel Reference Chua and Engel2019).
Researchers point to two major responses to stigma: self-devaluation and resistance. Self-devaluation occurs when the target of stigma is aware or conscious of their stigmatized status, agrees with stereotypical portrayals of their group, and applies those stereotypes to oneself (Goffman Reference Goffman1963; Corrigan, Larson, and Rusch Reference Corrigan, Larson and Ruesch2009, 75). Through this process, individuals who possess a stigmatizing attribute like a conviction history come to conceive of themselves as a criminal “other” (Luoma et al. Reference Luoma, Twohig, Thomas Waltz, Hayes, Padilla and Fisher2007). Typically, once self-stigmatization occurs, reduced self-esteem and self-efficacy follow, prompting some targets to withdraw psychologically and sometimes physically from social situations that put them at risk of mistreatment (Major and Schmader Reference Major, Schmader, Janet and Stangor1998; Evans, Pelletier, and Skola Reference Evans, Pelletier and Szkola2017).
Alternatively, a significant subset of stigmatized populations engages in stigma resistance or the rejection of a “stigmatizing master narrative” (Stone Reference Stone2016, 963). In her research on the stigma of mental illness, Peggy Thoits (Reference Thoits2011) suggests that resistance takes two forms: deflecting and challenging. While deflecting is primarily cognitive and involves distancing oneself from one’s own stigmatized population (I am not like them), challenging is predominantly behavioral and contests others’ perceptions of stigma targets through largely confrontational tactics (we are not like that) (Thoits Reference Thoits2011). Importantly, while deflection may preserve one’s self-esteem and self-efficacy, challenging has the potential to enhance self-concept, individually or collectively, by eliciting “pride in courageously standing up for oneself or one’s group” (5). Fluid and non-linear, stigma resistance may include elements of deflecting and challenging, deployed at different times and in different contexts by both individuals and groups (Link et al. Reference Link, Struening, Neese-Todd, Asmussen and Phelan2002; Corrigan and Watson Reference Corrigan and Watson2002).
Resistance can occur at the micro or macro level. At the individual or micro level, those with conviction histories often engage in resistance by acting as a “wounded healer” to others with prior system involvement (D. Brown Reference Brown1991). In this work, those with prior convictions typically draw on empathy cultivated by contact with the carceral system (Hanan Reference Hanan2020) to aid similarly situated others through a mutual help model (Eglash Reference Eglash1958, Reference Eglash, Hudson and Galaway1977; Cressey Reference Cressey1965; White Reference White2000; Irwin Reference Irwin2005). Serving others and going this “second mile” demonstrates both redemption (Maruna and LeBel Reference Maruna and LeBel2009) and the embrace of a pro-social identity, thus altering preconceptions about those individuals serving as wounded healers (Giordano, Cernkovich, and Rudolph Reference Giordano, Cernkovich and Rudolph2002). “Third mile” resistance strategies go further and involve coalescing power through organization, with the goal of altering overall perceptions of a stigmatized population at the macro or group level (Maruna and LeBel Reference Maruna and LeBel2009). Analogously, in each instance, the stigmatized individuals challenge prevailing depictions of themselves or their population by drawing on their strengths and attributes (Maruna and LeBel Reference Maruna and LeBel2003) to help others who likewise bear the mark of a criminal conviction (Smith Reference Smith2021).
Legal consciousness scholars also contemplate resistance strategies to the hegemonic power of the law (Ewick and Silby Reference Ewick and Silbey1998). One line of research explores how broader worldviews, perceptions, and the mobilization of rights are influenced by identity and the person’s role in society (Chua and Engel Reference Chua and Engel2019). Along that line, Ewick and Silby’s (Reference Ewick and Silbey1998) seminal typology of legal consciousness develops three categories for the narratives of everyday people. People who are before the law are disinterested and distant; those with the law view legality as “a game” that requires strategy; and individuals operating against the law hold that “the law is a product of power” and view legality as “arbitrary and capricious” (28). Against the law consciousness contemplates such “everyday” resistance as a way to secure power (Scott Reference Scott1985), and strategies can include “foot dragging, omissions, ploys, small deceits, humor, and making scenes” as people try to vindicate their rights or interests (Ewick and Silby Reference Ewick and Silbey1998, 28, 48). Resistance can also be more visible and contentious, reflecting larger social movements (Hollander and Einwohner Reference Hollander and Einwohner2004) and existing “in and through law” (Merry Reference Merry1995, 16).
Though some of the most influential reforms in the areas of criminal law and criminal procedure have come as the result of direct legal action by those who have been the target of the carceral system (see, for example, Gideon v. Wainwright and Miranda v. Arizona), challenges using formal legal procedures arguably reify the hegemonic power of the law and a system that serves to marginalize those with prior conviction histories.Footnote 1 For this reason, alternative forms of resistance can be more effectual. Exploring radical environmental activists and their strategies of opposition, Erik Fritsvold (Reference Fritsvold2009) observed more severe forms of resistance. Describing a fourth category of consciousness— under the law—he proposed that traditional “against the law” forms of resistance are “relatively mild and … do not adequately represent the forms of resistance regularly employed by radical environmental activists” (819). Under the law consciousness, Fritsvold suggests, conceives of the law as “a vitally corrupt social order [that] has produced a vitally corrupt legal system to assist in perpetuating its own power” (806). In short, against the law resistance acknowledges failures in the law, while under the law emphasizes that such failures and injustices are intentional and warrant more drastic forms of challenge.
MARGINALIZED GROUPS AND THE PURSUIT OF LAW
The law has a long history of excluding certain demographic groups from the profession. Although women are now well represented in the legal profession, the first woman was not barred until 1869, and sex-based prohibitions existed in other states for several additional decades (Fossum Reference Fossum1981). In 1844, the first Black lawyer was admitted to practice (ABA 2020), but the American Bar Association (ABA) continued to exclude this population for nearly another century, finally admitting Black members in 1943 (Abel Reference Abel1989; Chambliss Reference Chambliss2004). Until 1950, when the US Supreme Court struck down official, race-based law school admissions criteria (in Sweatt v. Painter), southern law schools formally excluded Black Americans and other racial minorities (Abel Reference Abel1989).Footnote 2 Similarly, Hispanic individuals faced underrepresentation in the legal profession in the aftermath of the Civil Rights Movement (Davila 1987), and, in recent decades, the level of Hispanic representation in the law has been termed “alarming” (Malpica and Espana Reference Malpica and Espana2002, 1394). While blatant exclusionary policies premised on race or ethnicity no longer remain, the demographic homogeneity of the profession still persists, so much so that some commentators have described the law as the “whitest profession” in the United States (Anderson Reference Anderson2009, 1012; Moran Reference Moran2010, 39).
There are two key studies focused on law school barriers for individuals with conviction records, although neither directly examines the interplay between other disadvantaged statuses and the criminal conviction. In the first empirical study of prospective law students and attorneys with prior criminal convictions, researchers at the Stanford Criminal Justice Center and the Stanford Center on the Legal Profession surveyed eighty-eight individuals with prior criminal convictions on a wide range of subjects relating to legal education and the legal profession (Cohn, Mukamal, and Weisberg Reference Cohn, Mukamal and Weisberg2019). While the Stanford study did not probe motivations for seeking out a career in law specifically, it did ask about possible deterrents to applying and found passing the good moral character requirement was a common factor of concern (Cohn, Mukamal, and Weisberg Reference Cohn, Mukamal and Weisberg2019). In a second related case study, law professor Hadar Aviram (Reference Aviram2020) interviewed ten individuals with conviction records who had successfully passed the bar to examine their experiences with the bar process. Aviram explains that many participants saw their pasts as valuable sources of empathy that served to bridge their role as attorney with that of their clients. While not a key focus of the study, she also notes, “[a]ll of them, without exception, mentioned their experiences in the criminal justice system as catalysts for their decision to become lawyers, and most specifically to help disenfranchised population[s]” (78).
Intersectionality research demonstrates that considering how multiple marginalized identities intersect can provide important insight into lived experiences when compared to a focus on a single identity (King Reference King1988; Crenshaw Reference Crenshaw1989; Collins Reference Collins2000). As Kimberle Crenshaw (Reference Crenshaw1991, 1244) explains when describing intersectionality for Black women, “the intersection of racism and sexism factors into Black women’s lives in ways that cannot be captured wholly by looking at the race or gender dimensions of those experiences separately.” In other words, people “do not live single-issue lives” (Lorde Reference Lorde1984, 138). People may also become aware of the multiple and intersecting systems of inequality they face (King Reference King1988). In addition to race and gender, intersectionality can also involve class, disabilities, sexual orientation, and criminal record identities (see, for example, G. Brown Reference Brown2010; Panfil Reference Panfil2017; Bailey and Mobley Reference Bailey and Autumn Mobley2019). In the current study, we anticipated intersections between race, sex, and criminal records given the racialized structures and policies inherent in the criminal legal system (see, for example, Alexander Reference Alexander2012).Footnote 3
While the research in this area is limited, there is suggestive evidence that marginalized groups may seek out the law to combat oppression. In her unique and in-depth intersectionality study of Black women who sought to enter the legal profession, Gwyned Simpson (Reference Simpson1996) found that those with parents or Black role models who encouraged educational achievement were more likely to pursue a career in law. Additionally, those who had a history of community service sought out the law as a means for effectuating social change. Injustice was a major concern for Simpson’s study participants, and roughly half noted they entered the legal field “because they wanted to serve the Black community” (205). While a sizable contingent (44 percent) considered other helping professions like teaching or social work, many wanted to pursue a career in law because of their marginalized status and desire for social change. As one of her participants explained, “[b]eing a lawyer was always on my mind. I had an image of myself striding forth on my White steed with the love of the people overcoming the racists of the world” (205).
Similar to Simpson’s (Reference Simpson1996) findings, two major surveys conducted by the American Association of Law Schools (AALS) (2017) and Law School Admission Council (LSAC) (2018) found that many prospective law students are motivated to pursue a career in the legal profession, in part, for an opportunity to effect social justice.Footnote 4 Furthermore, this reason is more commonly reported among Black, Hispanic, and female applicants/students. Unfortunately, neither survey collected criminal history data on respondents. Yet the desire to work toward social justice appears to be heightened for people experiencing a marginalized status and is perhaps even stronger for those with multiple marginalized statuses.
The current study expands these prior efforts in two ways. First, while our study includes experiences and perceptions during different parts of the law school journey and licensure process, we are also interested in our respondents’ broader life narratives, including how they experienced school, family dynamics, neighborhood life, and education from early childhood to the present. This enables us to explore the interaction between different forms of discrimination and disadvantage, including race and criminal legal system experiences. At the same time, we can explore in depth how and why these formative years influenced their ultimate motivations to pursue the law. Second, we broaden the scope of voices included in our sample. One of the authors has a unique position as a formerly incarcerated person who attended law school and passed the bar after release from prison. This enabled access to a larger and more diverse pool of individuals in this otherwise hard-to-reach population (with several explicitly pointing to this shared commonality as important for their participation). As a result, we can include the perspectives of applicants and law students in addition to individuals who have successfully (or unsuccessfully) passed the bar at the time of the interview. From a theoretical perspective, examining the experiences of a highly stigmatized group that is largely concealing their criminal record status and has serious prior criminal justice system experiences allows us to study both stigma and legal consciousness. This can provide insight into the motivations and goals of other marginalized populations seeking access to the occupation and further contribute to intersectionality research.
The relationship between those with conviction histories and the law is complex, and little is known about the motivations of this specific group of law students. In addition, individuals with conviction records often experience co-occurring disadvantages and marginalized statuses based on race or ethnicity. While the law contributes to stigmatization and marginalization, the law’s power—which is all too familiar to those who have previous carceral contact—may also represent an opportunity for change if members of this group are able to access and alter the system. The goal of reforming oppressive legal structures may then explain, at least in part, the desire to enter a profession that has historically maintained homogeneity through notoriously exclusionary policies (Kidder Reference Kidder2003; Kennedy 2019).
METHODS
There are no available estimates on the number of prospective, current, and/or former law students with criminal histories. Although the ABA collects a variety of annual statistics from law schools, criminal record information is not included. This is particularly surprising given that every ABA-approved law school except one inquires about a criminal history on their application for admission (Binnall and Davis Reference Binnall and Davis2021). More broadly, we do not have representative or current estimates for how common pursuing (or desiring to pursue) professional education is among those with criminal records. In addition to official data collection limitations, as described earlier, individuals in this population often aim to conceal the stigma of a criminal conviction record (LeBel Reference LeBel2012). However, there are informal networks of prospective, current, and former law students and, increasingly, emerging formal organizations. California, the site selected for recruitment in the current study, has been a leader in organizing and promoting the legal profession for individuals with conviction records. California is the study site for the first comprehensive report on formerly incarcerated and system-involved law students (Cohn, Mukamal, and Weisberg Reference Cohn, Mukamal and Weisberg2019), and it is home to the first bar association exclusively for system-involved lawyers and law students (California System-Involved Bar Association 2021). In addition, of the over 1.3 million lawyers across the United States, the state of California has the second highest number (ABA 2020).
Our initial sample recruitment developed through existing connections that one of the authors had previously established as a law professor with a felony conviction. Most participants contacted the author at some point prior to the study for advice regarding their educational pathway to law school. From there, we used snowball sampling and new connections to extend our network and reach study participants, including recruiting several people from a national conference focused on access to the legal profession for individuals with conviction histories.Footnote 5 Ultimately, referrals came from a variety of sources including community organizations, colleges, law enforcement agencies, and other attorneys. Notably, our respondents were diverse and not necessarily connected to social reform movements through advocacy or reentry organizations.
As displayed in Table 1, our sample is more racially diverse, slightly older, and includes more males than law students on average, which reflects the demographic trends anticipated for this system-involved population. In 2018, while approximately 53 percent of law school applicants (66 percent of matriculants) were white, 11 percent (10 percent) were Hispanic, 8 percent (9 percent) were Asian, and 14 percent (7 percent) were Black (LSAC 2018). In contrast, in our sample of twenty-nine prospective, current, and former law students, only 17 percent of our participants self-identified as white, 45 percent as Hispanic, 3 percent as Black, 14 percent as Asian, 7 percent as Middle Eastern, and 14 percent as multi-racial. On average, our cohort was also older. The LSAC’s (2018) study found that 74 percent of law school applicants and 92 percent of law school matriculants were age twenty-nine or younger, while only 31 percent of our sample fell within that age group (mean = 34; range = 22–56).Footnote 6 In terms of gender, roughly 53 percent of law school applicants and matriculants are women (LSAC 2018); our sample was comprised of 45 percent women.
National and sample demographic characteristics
Notes. Sample statistics are rounded and may not total to 100 percent within a category. The median age for our sample was 33 (mean = 34). Among those identifying multiple races/ethnicities, this included Black and white (n = 3) and Latino and white (n = 1) respondents. Among those currently enrolled in law school, three were in their first year (that is, 1Ls), two were in their second year (2Ls), and two were in their third year (3Ls).
Source for LSAC applicant figures: Dustman et al. (Reference Dustman, Walzer, Camilli and Gallagher2018).
While there are not aggregate statistics on the proportion of law students with criminal records and the types of records, most of our respondents had serious convictions, with 86 percent reporting a felony criminal conviction history for which they spent time in prison (n = 25). The remaining participants (n = 4) had misdemeanor convictions that had been reduced from felony charges by virtue of “wobblers,”Footnote 7 and two of those participants were incarcerated in a local or county jail. Most of our participants grew up in neighborhoods they describe as disadvantaged, with high levels of gang presence and police surveillance, and 31 percent reported personal affiliation or membership in a street gang. Moreover, unlike traditional law students, a majority of the participants were first generation (62 percent) and attended community college at some point in their educational career (66 percent). Conversely, among the respondents in their 2018 study, the LSAC (2018) found that 64 percent of applicants and 77 percent of matriculants had a parent who had completed a bachelor’s degree or higher. As for where our participants were in their legal education journey, 38 percent were in the process of applying to law school, 24 percent were currently in law school, and 38 percent were licensed attorneys at the time of the interviews.
We conducted all in-depth interviews by phone between July 2019 and May 2020. Interviews typically lasted around an hour and covered five main topics: background (including childhood experiences, neighborhood and family context, and early schooling), pre-law education, events and perceptions surrounding the criminal record, the decision to attend law school, and the good moral character requirement. All interviews were recorded on a phone application, transcribed, and stripped of identifiers. Our analysis consisted of four main stages. First, both authors read each transcript multiple times to familiarize ourselves with the content. Second, using NVivo as an organizational tool, we independently coded each interview. We reviewed the text for themes and patterns related to potential reasons our participants considered and eventually seriously pursued the legal profession. This included background characteristics (including early education and childhood experiences), criminal legal system interactions, and broader information about key relationships, employment and educational events, and goals. Third, after our initial round of coding for main themes, we discussed our major categories and subcategories and reviewed discrepancies. This process involved creating a working outline together and reviewing the documents and codes independently again to finalize our key themes and subthemes. Fourth, following Jamie Fader (Reference Fader2021), we created profiles for each study participant based on another review of the transcript and key themes we had previously identified. Each profile contained a summary and a diagram of the temporal ordering of key events that occurred from childhood to the present. We also highlighted the point at which law school became a serious consideration and identified quotes for each participant that best reflected the reason.
RESULTS
We identified three interrelated themes that were important for paving the path to law school for our study participants: cumulative disadvantages across the lifecourse; the realization of systematic marginalization in their lives; and the law as a powerful outlet for change. In the anonymous identifiers attached to quotes below, “A” represents a prospective law student (or applicant), “S” notes that the participant is currently a student in law school, and “B” stands for awaiting bar results or barred.Footnote 8
Cumulative Disadvantages: The “Cycle of Violence and Death and Poverty”
Most of our participants pointed to severe hardships and structural disadvantages throughout their lives—which started as children and accumulated over time—as a salient aspect of their educational path. Within an overarching theme of normalization of crime and violence, we coded several subthemes, including trauma in the home; negative interactions with teachers, other students, and school resource officers; and adverse neighborhood experiences, which was often connected to police patrols and gang presence. For our respondents, disadvantages appeared to accumulate not only through the repetition of negative incidents over time but also because these events spanned across family, school, and community domains.
Respondents described a range of traumatic events in the home, including witnessing and experiencing emotional and physical abuse, police drug raids, and parental substance abuse. School environments were similarly problematic, with frequent descriptions of bullying, fighting, and negative interactions with school resource officers. While many of our participants experienced detention, suspension, and expulsion, others pointed to the intervention of the criminal legal system in the school setting: “Lower income high schools, you don’t get sent to detention. They call the cops” (Interviewee 11B). Several also noted “a lot of SWAT [police] presence” (Interviewee 01S) in the surrounding area, particularly in neighborhoods with “very, very few white people” (Interviewee 02S) and described being targeted (for example, “like, there are certain officers … that would like basically hunt me down because I wore a certain color” [Interviewee 04B]). Even seeking institutional protection within the neighborhood, such as attending a local Catholic school, “still didn’t stop me from being immersed by the violence that was around our neighborhood, because it was just all over the place” (Interviewee 01A).
Although not initially part of our semi-structured interview guide, we also started to probe respondents about gang affiliations and involvement after multiple respondents raised the issue. Similar to prior qualitative gang research (see, for example, De Vito Reference De Vito2020), some of our respondents reflected on the positive family and social structure that the gang provided given the existing normalization of crime and violence: “So like 15, 16, yeah, I’m getting jumped, though getting jumped and all that was very normal to me … so I started to—I joined [the gang], I was like, maybe 16, got really close to them…. I still consider them my brothers because they were there for me, you know? They took care of me” (Interviewee 04B). As a different participant described, although she was never affiliated with a gang, “I’ve always been accused of being gang affiliated,” and she sought higher education to escape the normalization of crime and violence:
“I didn’t even know that to go to law school you needed to go and get a BA [Bachelor of Arts] so that’s totally—but I viewed my purpose as someone who was just working hard and trying to really get out of the cycle of like, violence and death and poverty that I saw all around me because I did grow up in predominantly low-income neighborhoods that were really—you know, run by gangs” (Interviewee 04S).
Some participants initially withdrew from stigmatizing situations that accompanied the structural disadvantages they faced and fell within the self-devaluation framework at certain points in their life course, such as Interviewee 06S, who recalled how he was “picked on by [teachers], and then me just saying like, ‘Fuck school,’ basically.” However, as depicted in the following sections, resistance through challenging existing structures was overwhelmingly common. These early and cumulative negative life experiences were often a critical part of our respondents’ narratives because they led to self-reflection and an epiphany for our participants. The next section expands on this epiphany process, including how respondents came to realize they were part of a broader power structure and the decision to use micro and macro resistance strategies as a result.
Systematic Marginalization: “Just a Number of Events That Pile Up and Pile Up and Pile Up”
The challenges that our participants identified tended to culminate in some type of major event—such as incarceration or an educational “awakening”—that led to a realization about broader systemic social issues and that they were part of something bigger than themselves. They described this broader system in various ways, pointing to racial disparities, economic disadvantage, the school-to-prison pipeline or mass incarceration, and a combination of “a lot of systemic issues.” Some identified financial hardships from court expenses and unequal representation as particularly influential. As one participant described,
my parents sold everything they had, man. Like my mom sold her wedding ring. They sold everything. Just to get me a private lawyer. … Even though I wasn’t legally educated, I knew he wasn’t doing anything for me [laughs]. So I just saw how unfair it was that poor people were really stuck with poor representation, and wealthy kids—I mean, I saw all the white kids in juvenile hall go home…. So I wanted to be able to make a difference. I mean, as cheesy as that sounds, that’s really why I went to law school. That’s 100% why. (Interviewee 11B)
For others, a sense of inequality and unfairness built up over time, and the incarceration experience was just one of many perceived injustices. As one respondent described after recounting how his mom’s wealthy employer “didn’t want to pay her and use[d] the law against her”: “So like, those experiences were formative I think … feeling like, powerless under the hands of the law were all those that really like, formed my experience to like, really want to go to law school and get educated and use the law as a tool to help people, not oppress people, like I had felt” (Interviewee 04S).
While our respondents felt powerless in their past situations, they also viewed the law as a source of power. Obtaining knowledge about the law was perceived as a form of power, a way to “fight for” the social issues they identified as oppressive and a method of holding existing systems accountable:
Law, for one, I was always—if you’re a person of color, you were being patrolled by sheriffs, which were predominantly all white and racist. … I felt like, well, if I can’t beat them, I’m going to join them, but I wanted the sense of power. You know, it was all about power, so I figured, if I get this degree, I’m going to become a federal agent, and that would actually give me the license to say FU to all these other local police. (Interviewee 01A)
But it’s just a number of events that pile up and pile up and pile up, and I don’t want to be angry, so it’s just like a spark in me … [a]nd I think that’s kind of what pushes me for law school and why. (Interviewee 09A)
I do feel like a big part of my experiences with incarceration and homelessness and domestic violence and all of that stuff too was like all just kind of bearing witness to racial disparities and everything like that. So I feel like I have a lot of really valuable information that would be—that could be put to really good use with a law degree as far as like being able to call certain systems and practices to account or whatever. (Interviewee 04A)
Higher education can positively influence self-identity for marginalized populations, leading students to feel successful and empowered (Rendon Reference Rendon1994; Deil-Amen Reference Deil-Amen2011; Winkle-Wagner and Locks Reference Winkle-Wagner and Locks2013), including formerly incarcerated adults (Evans, Pelletier, and Szkola Reference Evans, Pelletier and Szkola2017; see also West Reference West2011). Criminological research suggests that pro-social identity transformation is foundational to criminal desistance processes (see, for example, Maruna Reference Maruna2001; Giordano, Cernkovich, and Rudolph Reference Giordano, Cernkovich and Rudolph2002; Maruna et al. Reference Maruna, LeBel, Mitchell and Naples2004), and higher education can play an important role along that pathway (Runell Reference Runell2015). While our respondents did not discuss their desistance processes specifically, they often spoke to the connection between education and self-identity changes, noting that they “don’t see [themselves] as a villain anymore” (Interviewee 06S) or as “demonized” (Interviewee 01S) by others but, rather, as a “leader” (Interviewee 03S) and “the author of the story” (Interviewee 06S). They described their legal education as giving them more confidence, agency, and privilege.
Our findings also suggest higher education helped our participants reveal and understand broader social structures and inequality, which provided insight into their place and experiences in these larger systems. In some cases, education appeared to give them language and tools to describe the events and patterns they had encountered in their lives, along with the drive to pursue the law to create change.
Interviewee 02S: So I took a Chicano studies class and it just blew my mind, man.
Interviewer: At community college?
Interviewee 02S: Yeah, at community college. I’m like, holy shit, like, my people belong here, we have a history here—because all my life, dude, I had like an identity crisis, like I wasn’t white enough or I wasn’t American enough for the white kids I went to school with so they called me wetback and border hopper and they made fun of my accent. And in my neighborhood I was too smart, I was too white, I acted too white, I spoke too white, I said the word dude, I used these fancy vocabulary words that kids in the hood shouldn’t know, you know what I mean? So I didn’t fit in anywhere. And I never shared any of this with anyone, right, this is an internal struggle that I dealt with—so when I went to Chicano studies, man, it was like, oh my god—so I knew in that moment, I didn’t know what, but I knew like, okay, I have to study and I have to fight these things.
After another meaningful event—meeting someone else with a conviction record and law degree—this respondent had a revelation: “I was like holy shit, you can become a lawyer, and help out kids in the hood like me!” Another student who encountered cumulative disadvantage growing up described an educational awakening and a desire to learn how to use the law that she once found oppressive:
Once I got to college and I started learning about things like the school to prison pipeline … I started realizing I was in that pipeline, but fortunately not all the way funneled into prison or juvenile hall, and I started learning about mass incarceration. In college, at that point, that’s when I realized, you know, there’s a lot of systemic issues and the law really plays a role and so that kind of—that awakening, that learning experience in my undergraduate career really motivated me or inspired me to want to pursue law school. … I think if I had to put it in one sentence it’d be my desire to just learn and understand the law in order to use the law as a tool for my community that’s been historically oppressed through the law. So really to—for lack of a better word, like, to learn the master’s tool. (Interviewee 04S; emphasis added)
Part of the realization process also involved an acknowledgment that they were not alone, and that there were other similarly situated people like them. Some questioned why the “good people” they met in prison were incarcerated and punished instead of receiving drug treatment programming (Interviewee 01B). As another described, learning the law could provide protection not only for himself but also for others:
I felt like I needed the law as a bulletproof vest so when, you know, the police or anybody tries to—you know, the court system, the jail system, the justice system—I feel I needed to better defend myself because I couldn’t count on nobody because I didn’t have resources or a lawyer. And then I felt like I need to study the law, I need to get into law school—at the same time I feel like I wanted to help people get out because a lot of the people that I met in there I felt like they didn’t belong in there. (Interviewee 02A)
Similarly, another barred attorney reflected on the desire to help others the way he was helped:
“[T]hinking about it, if I’d have gone into juvenile hall, if I would have gone into the system—I think I would have just done a lot worse. But that lawyer helped me, and I’ve always thought about that. I’ve always thought about that. And that’s in the same way that I want to help people, you know?” (Interviewee 10B)
Our participants frequently highlighted the perceived injustices they observed and the empathy for others that they felt as a result. In fact, fighting against injustice on the behalf of others was a key explanation for pursuing law school. While prior studies suggest that around a third of undergraduate students report choosing a career in law to “help others” (35 percent) or “advocate for social change” (32 percent) (AALS 2017), our participants overwhelmingly chose the law because they sought to advocate for others like them and to alter a system they see as oppressive. As in prior research, all of our participants mentioned helping similarly situated others (“second mile”) and working for large-scale social change (“third mile”) as an influential motivation in their legal educational journey (Maruna and LeBel Reference Maruna and LeBel2009). As some respondents indicated in this section, the law was a perceived mechanism for obtaining power and refuting the powerlessness that they experienced from discrimination and cumulative disadvantage. The next section further elaborates on this idea of power as a central theme in the decision to pursue the legal profession over other helping professions and, as some participants hinted at in the quotes above, the importance of mentorship and role models in accessing the law.
Accessing the Power of the Law
Systemic marginalization realization weighed heavily on many of our participants’ decisions to attend law school and join the legal profession, with the goal of helping others and changing the system from within as a frequently cited goal. The final puzzle for us was understanding why this group ultimately chose the law. Almost all of our participants considered other jobs at some point in their career search, and most of these job positions would be considered “helping professions,” such as social workers or therapists. Stories about helping others typically started to appear during or after the person’s incarceration. While incarcerated, approximately one-third of our respondents filed grievances: some in response to a specific or isolated incident and some more frequently. When asked why they filed a formal complaint in prison, two main themes emerged: to help others and as a form of law or power. The former could include “helping someone navigate like different [administrative] forms and stuff like that,” especially for those who could not navigate the process themselves (Interviewee 06S). As one person described, “I think it was because I could and then when you’re in there there’s a lot of people that can’t. So it sounds funny, but most of the people in jail that I was in jail with, maybe one in five or one in eight were real—um—were able to read well. And able to do paperwork well” (Interviewee 09B).
Yet even for the two respondents who explicitly described using the power of law to file grievances, they reported harnessing that power to help others. For example, as one person described,
California co-regulation title 15, which is pretty much the bible in prison. That’s your bible, know your rules, know your law, and I remember in the reception center, [someone told me] no matter what you do, learn this. This is your bible. Learn it. Learn it, learn it. I go, how’s that? He goes, because at the end of the day, this is how you’re going to beat them. (Interviewee 08B)
After working in the law library for several years and filing grievances on behalf of other incarcerated Mexican Americans, this respondent described the process as “hav[ing] another weapon other than using violence—we have now a resource in someone that knows the law … and the law is so powerful.” (Interviewee 08B)
Participants often described the current criminal legal system as oppressive and discriminatory, whereas learning the law was viewed as a way to help people and fight systemic social problems. Law was viewed as “the master’s tool,” a “bulletproof vest,” and a source of empowerment. Even when a respondent’s parents did not see the legal profession as a reputable career path—“I may as well have told him that I’m going to go join the circus [laughs]”—she recognized the power in the law: “And so thought of law school as a way for me to be able to kind of gain some of that power along the way because I saw what lawyers could do inside of a courtroom and outside of a courtroom” (Interviewee 02B).
Encouragement, mentorship, and the realization that the legal profession was a possibility for people with conviction records were also empowering experiences for our study participants. Several mentioned formerly incarcerated mentors or public role models that shifted their own perceived career possibilities and provided a “breath of fresh air” (Interviewee 01S):
Anyway, if this knucklehead could do it, so could I. That’s what I thought. (Interviewee 05B)
[W]e met when I worked at [organization name] which is a non-profit to help formerly incarcerated—and he goes hey, I just got enrolled in [law school]. I said, how’s that? He goes, we can be lawyers. I go, no way. There’s no way you can be a lawyer. He goes, bro, I’m going to be a lawyer. Very adamant, very stern, he says look, I got into law school. (Interviewee 01A)
[B]ut once I found education and like, I became inspired, you know, I was like, man, I just want to know there’s a chance. Just show me one motherfucker that’s done it and I’m going to be the next one. That was my mentality. And at that point that’s where my confidence in myself just started growing, man. … And then I found out about [name redacted], dude, and then I was like, man, okay. So then once I met him and I could touch him and I could see him and I could feel him, then I was like, okay. This is happening for real, for real, you know? (Interviewee 02S)
The realization that the legal field could be accessible to our study participants appears to be particularly empowering because they previously believed it was impossible. While the quotes above reference meeting people in person, several respondents were motivated by people they read or heard about. Other people also served as influential sources of inspiration and transferred confidence and hope, including interactions with courtroom actors or learning about broader movements. One interview explored this idea:
Interviewer: What about joining the Bar? Are you concerned that you will not be admitted?
Interviewee 01S: Not anymore. Hey-oh!
Interviewer: Why not anymore?
Interviewee 01S: Why not anymore? I don’t know, maybe the California System Impacted Bar Association … maybe it’s the fact that other people have done it before me and I know it’s a possibility? I can do this.
When we asked this participant about his level of confidence in passing the good moral character requirement, he replied: “Uh, I feel really confident now. You know, if you would have asked me that literally last year I would have said zero to twenty-five. And the reason why I’m saying that is because before I had no knowledge of it. And you know, knowledge is power” (Interviewee 01S).
As Gwyned Simpson (Reference Simpson1996) points out in her study of Black female attorneys, self-efficacy, self-concept, and the motivation to achieve and succeed are key indicators of pursuing a career. Similar to Simpson’s respondents, access to educational opportunities and having role models and support systems that reaffirmed intellectual abilities and encouraged the pursuit of law were hugely important factors in our respondents’ lives. While our study participants faced enormous challenges and barriers throughout their early lives and interactions with the legal system, these experiences and encounters were also often described as the motivational foundation for pursuing a career in law. As one of our participants described,
I always knew I was going to go to college, but it wasn’t until I got in trouble that I knew I was going to go to law school. … Absolutely [incarceration] changed me as a person. It definitely made me stronger, but it also made me more distrusting. It made me completely question authority, but also, the silver lining is it also made me a very passionate and empathetic person just because if it could happen to me, it could absolutely happen to a Black kid or a brown kid in East LA or in South LA. So it gave me a purpose, I guess is the best way to put it. (Interviewee 11B; emphasis added)
This notion of finding purpose aligns with prior research suggesting people formerly involved in the criminal legal system may find “inner peace” by helping other similarly situated individuals (Maruna Reference Maruna2001, 102) and may even become “hyper moral” after developing a non-deviant identity (Lofland Reference Loftland1969, 283).
Finally, many of our participants were interested in expanding law school opportunities for similarly situated individuals and expressed the need for law schools to diversify their student populations, including—but not limited to—students with conviction records. Most described the unique perspective that those individuals with different lived experiences can bring to the table. As one barred attorney explained,
a diversified profession is a better profession, just like a diversified student body, a diversified workplace. You want different points of view, different perspectives. You don’t want everyone whose daddies’ own a company, whose sons and daughters can afford to go to law school and [audio unintelligible] law firms. And just this cycle. No, no, no. The diversity of experiences is what makes a profession awesome, unique. Where everyone feels like they belong. So yes. And I’m not just talking racial, economic, but people like us. I think we also need to be classified as a diverse group. (Interviewee 11B)
A current student agreed with this perspective:
Usually I’m always recruiting for people to come to law school because I feel like we need a lot more representation regardless of what your background is, but definitely more women, we need more people of color, more system-impacted formerly incarcerated people, undocumented people—we need everybody here. (Interviewee 04S)
In a message to law schools regarding prospective students with a conviction history, one participant summarized, “Gotta let us in, man. Stop closing the doors. Stop hiding the ball. You know, if our grades aren’t enough, then our grades aren’t enough. But treat us as equals.” (Interviewee 01S).
DISCUSSION
In April 2021, the dean of William-Mitchell Law School proctored the law school admission tests of two individuals in custody at a Minnesota State Prison (Austin Reference Austin2021). Dean Anthony Niedwiecki’s efforts are the most recent to build on a growing movement aimed at facilitating entry into the legal profession for those with conviction histories. In recent years, a number of individuals have successfully chartered a course from criminal conviction to practicing attorney and now occupy public positions as law professors, legislators, and activists (Betts Reference Betts2010; Kroft Reference Kroft2019; Zoukis Reference Zoukis2019; Simmons Reference Simmons2021). Moreover, multiple programs and collectives now work to mentor those with conviction histories who wish to enter the legal field (Arthur Reference Arthur2021a, 2021b). While these discrete success stories and grassroots efforts have garnered attention from the media, little empirical research has focused on the legal educational journeys of those with prior criminal justice system contact (but see Aviram Reference Aviram2020; Binnall Reference Binnall2022).
The current study combines stigma and legal consciousness frameworks to better understand why people who have been convicted and incarcerated—one of the most intensive forms of modern legal surveillance in the United States—turn to a career in law. Pursuing a legal education and occupational license involves a set of intensive screening processes and requires repeated scrutiny of the person’s past. Furthermore, people with criminal justice system involvement report largely negative experiences (Brunson and Miller Reference Brunson and Miller2006; Vera Sanchez and Adams 2011) that can have ripple effects on their perceptions (and avoidance) of other institutions (Lawless and Fox Reference Lawless and Fox2001). The labels and discriminatory practices routinely applied to this large subset of Americans (Shannon et al. Reference Shannon, Christopher Uggen, Thompson, Wakefield and Massoglia2017) can influence how people with conviction records experience and interpret law (Chua and Engel Reference Chua and Engel2019).
In response to not only their personal situation, but also by observing others in similar circumstances, people with convictions may choose to resist stigma at the individual level (Major and Schmader Reference Major, Schmader, Janet and Stangor1998; Thoits Reference Thoits2011; Evans, Pelletier, and Skola Reference Evans, Pelletier and Szkola2017). Alternatively, they may decide to engage more deeply in an attempt to generate macro-level change, particularly if failures in the law are viewed as intentional and systematic (Fritsvold Reference Fritsvold2009). While most of our participants’ perceived failures in the law involved modern issues such as the school-to-prison pipeline, hyper-surveillance of youth, and mass incarceration, one of our older participants even connected her motivation to pursue the law to earlier civil rights movements. As she described, “it was the civil rights—of that time, and the women’s movement, that made me want to be a lawyer and kind of a—you know, like a champion or something” (Interviewee 09B).
Our results point to three interconnected themes. First, most of our participants reflected on severe hardships and structural disadvantages, which worsened and accumulated over time, as a salient aspect of their childhood and young adult lives. Throughout this process, they tended to learn specific life skills to cope with the trauma and violence to which they were exposed.Footnote 9 Second, these challenges culminated in some type of major event—such as incarceration or an educational experience—that led to a “systemic marginalization realization” or the recognition that our participants are part of a bigger system that consistently disadvantages them. They reported developing an awareness that they were not alone and that there were other similarly situated people like them. Third, our participants decided to attend law school and join the legal profession to help others and change the system from within. While almost everyone in our sample described an interest in a helping profession at some point in their career search, we have focused on why they ultimately chose the law. A common answer, as revealed in our data, centers on power. While a few participants discussed the ability to achieve financial stability and prestige with this career path, they overwhelmingly described pursuing the power embedded in the law to create the system change that they sought.
Throughout our interviews, identity also played a key role, which aligns with prior research on stigma and legal consciousness. Most of the people we spoke with described severe economic and racial disadvantage from an early age, and, when looking back, many reported thinking of themselves, at least at one point in time (if not currently), as “gangsters,” “felons,” “thugs,” and “failures.” But our participants also self-described as “nerds” and as “smart kids” who enjoyed learning, reading, and school. They also noted that teachers and other students conveyed this positive image to them, especially in elementary and middle school, suggesting their self-image may have been shaped by how they interpreted others’ perceptions. Some explicitly reflected on the role that the criminal legal system played in this labeling process and how stigma was amplified. For example, as Interviewee 10A noted, they “felt more like a real criminal since that sentence labeled me.” Encounters with the legal system led to self-doubt and embarrassment for many of our participants, with several reporting hitting “rock bottom” while incarcerated. Yet their self-identities shifted again to more positive depictions when describing their pursuit of law school. Throughout their lives, education was a bright spot throughout the challenges and negative experiences, even though some still reported holding potentially contrasting identities. As Interviewee 04B described, “you know, I’m a fuckin thug, but I love education.”
From a policy perspective, our results have implications for both law schools and for the legal profession generally. As the AALS (2017, 1) has stated, “the nation needs diverse, talented, and well-educated lawyers and judges if it is to continue to strengthen and benefit from the rule of law.” Along this line, in recent years, the legal profession has struggled with cultural competency (Madaan Reference Madaan2016; Co Reference Co2019). Cultural competency, or “the ability to look at situations from a variety of perspectives as well as the ability to embrace diversity” necessitates an inclusive conceptualization of diversity (Demers Reference Demers2011; Patel Reference Patel2012, 1). While those with prior conviction histories are often viewed as “liabilities to be managed” (Travis Reference Travis2005, 7), those with prior carceral contact bring a unique knowledge and skillset to their subsequent endeavors, as Hadar Aviram (Reference Aviram2020) and Binnall (Reference Binnall2021, Reference Binnall2022) have noted. Our participants expressed a strong desire to draw on their empathy and intimate knowledge of the criminal legal system to serve clients who themselves are facing similar situations and circumstances. In their pursuit of cultural competency, law schools and the legal profession would do well to leverage our participants’ desire to access the law in service of others. To do so would expand the concept of diversity to include those with prior carceral contact and would acknowledge—explicitly—the value such lawyers bring to the profession.
While our participants provided compelling accounts of the processes and life experiences that led them to pursue a career in the legal field despite a (typically felonious) conviction record, there are several study limitations and avenues for future research. A snowball sampling strategy based in California was advantageous for identifying this hard-to-reach population, but future research examining a larger sample in multiple states would help provide a comparative lens. As we learned through the current study, many potential law students with conviction records in this context started their higher education paths in community college; sampling from that population could provide a new way to capture interested and active law school applicants with convictions. In addition, while we focused on motivations for attending law school and working in the legal profession, longitudinal research would enable researchers to determine whether these aspiring and early career attorneys go on to acquire power and make some of the system changes that they seek as well as what is required through that process (for example, networks, resources, time). At least in the immediate period, it is possible that this population will need to continue working within the existing system that they resist. Finally, future research exploring the motivations for other disadvantaged and intersecting populations, such as undocumented students (see, for example, Manzi Reference Manzi2020), could further contribute to our understanding of how and why marginalized populations pursue access to the legal profession and the implications of a more diversified profession for system equity and justice.
CONCLUSION: UNPACKING THE POWER PARADOX
Students and attorneys with conviction records appear to be constantly looking both backward—to the mentors and role models who paved the way for them—and forward to the next generation of young people sitting in a courtroom. Historically, those with prior criminal convictions have struggled to gain access to institutions of higher education due to criminal history inquiries, financial aid restrictions, and a lack of formal support (Custer Reference Custer2020; Binnall and Davis Reference Binnall and Davis2021; Donaldson and Viera Reference Donaldson and Viera2021). Convict criminology, a “unique criminological perspective” centered on the lived experiences of system-involved individuals, has been amplifying these often-discounted voices and perspectives for several decades and advancing a social network for this stigmatized, but often hidden, community (Tietjen Reference Tietjen2019, 108; see also Richards and Ross Reference Richards and Ian Ross2001). Recognizing that this population acquires valuable knowledge and skills through their earlier life experiences that equip them for a successful higher education experience (Hernandez, Murillo, and Britton Reference Hernandez, Murillo and Britton2022), convict criminology emphasizes a mentorship model whereby established scholars who have successfully accessed higher education cultivate the next generation of graduate students and academics with lived carceral experience (Leyva and Bickel Reference Leyva and Bickel2010; Tewksbury and Ross Reference Tewksbury and Ross2019). Similarly, role models and mentors inspired our study participants to believe a legal career was possible and drove them to help other similarly marginalized groups to break out of the systemic injustice that they describe being able to clearly see now.
While our sample cannot speak to people with criminal convictions pursuing higher education more broadly,Footnote 10 the current study provides a novel look into a largely invisible population that has a complex relationship with the law. Rather than working under the law in a visibly combative role (Fritsvold Reference Fritsvold2009), some of our study participants discussed strategic features of working with the law to improve people’s lives, while others spoke more to the recognition of the power the law wields in an against the law framework (Ewick and Silbey Reference Ewick and Silbey1998). Instead of describing small acts of resistance (or the “foot dragging” described by Patricia Ewick and Susan Silbey [1998]), our prospective, current, and former law students emphasized two main goals in their desire for change. Notably, both appeared to be connected to their systemic realization moments, which provides insight into the origins of resistance for this group.
The most common depiction was using the law (that is, working within the current structure or with the law) to provide direct services to people like them to generate change (Ewick and Silbey Reference Ewick and Silbey1998). This action can also be considered resistance by means of law (Merry Reference Merry1995). Lawyers can cultivate knowledge and tools from their experiences working inside the legal system to contribute to broader social movements (Arkles, Gehi, and Redfield Reference Arkles, Gehi and Redfield2010), and although our participants did not aim to necessarily dismantle the law in this “helping” framework, they hoped to challenge a system they viewed as oppressive by alleviating its negative impact on others. Respondents frequently reflected on their own criminal legal situation (including whether others helped them or if they the desire for more guidance) and their family’s or community’s experiences when explaining why helping others was so important to them. This theme centered around small, localized change by building a personal legal knowledge base and disseminating information access to those traditionally barred from it.
Another main goal that our participants described involved general references to broad, macro-level social justice change by working within the oppressive system, which could be considered an against the law strategy (Ewick and Silbey Reference Ewick and Silbey1998), or resistance which redefines the meaning of law (Merry Reference Merry1995). This “against-from-within” approach was often paired with the recognition that knowledge and training were key. As one participant described, “I know that lawyers … have played large roles in social justice movements and civil rights and all kind of stuff. And I feel like that training would really equip me and give me more good information and a good platform to be able to really create the kind of change and put the knowledge I have to use in a way that would be beneficial and change systems. That I, you know, see as oppressive” (Interviewee 04A).
Our respondents typically acknowledged the harmful ways that the law has been used against marginalized communities and expressed a desire to use that same power in a different way—often in connection to their personal systemic realization moment—but they did not elaborate specifically on how they would adopt this power for a different purpose. Some of our respondents also referenced using the master’s tools for positive change, which stands in contrast to Audre Lorde’s ([1979] 1983, 99) famous cautionary quote: “For the master’s tools will never dismantle the master’s house. They may allow us temporarily to beat him at his own game, but they will never enable us to bring about genuine change.”
In addition to these micro- and macro-level depictions of resistance, which share similarities with previous research on wounded healers, mutual help models, and “third mile” resistance strategies, a subset of our respondents described personal, safety, and financial motives for seeking a law degree (Eglash Reference Eglash1958, Reference Eglash, Hudson and Galaway1977; Cressey Reference Cressey1965; Irwin Reference Irwin2005; Maruna and LeBel Reference Maruna and LeBel2009). For example, in describing a friend who was an attorney, one respondent described how it was “kind of like he had a force field, kind of weird. And I used to like that. I still do” (Interviewee 01A). Others noted how becoming an attorney could provide a “steady career” and “job security” (Interviewee 05S) or how, in addition to the work being important, they needed to consider “the finances of being an adult” (Interviewee 07B). These respondents emphasized the prestige and power associated with a legal career, and the personal motive narrative often appeared along with one or both of these goals.
Ultimately, viewing the law as both oppressive and potentially liberating, our respondents were deeply critical of the current justice system while simultaneously reporting a desire to change the system from within. Lawyers involved in other social justice movements also grapple with this paradox. Pursuing certain promising legal strategies “may require accepting assumptions and terms of debate that advocates most deeply wish to challenge,” which Martha Minow (Reference Minow1991, 730) refers to as the “difference dilemma,” and Margaret Radin (Reference Radin1987) termed a “double bind.” Furthermore, as Gabriel Arkles, Pooja Gehi, and Elana Redfield (Reference Arkles, Gehi and Redfield2010) point out, other well-intentioned advocacy efforts sometimes become “lawyer-only spaces” or lawyer-led strategies that emphasize elite expertise, overlook critical perspectives, and encounter limitations to intersectional analyses of the problem. Working within a problematic system can raise concerns that lawyers might have limited (or sometimes even counterproductive) impacts and enhance the very power imbalances and systems of oppression that they wish to change.Footnote 11 As Sally Engle Merry (Reference Merry1995, 15) asks, “[d]oes resistance by means of law simply reinforce the power and legitimacy of the legal system itself?”
Prior research points to several potential strategies to successfully pursue change while working within the system. First, maintaining a broader vision of the social justice movement rather than only emphasizing the law as a mechanism for change is one strategy to avoid the trap of “lawyer-only” spaces. Jennifer Ching and colleagues (Reference Ching, Harvey, Jagannath, Shah and Strode2018, 186; emphasis added), five lawyers working in different social justice areas, describe aiming to “use the law as a tool of social change, at the direction of communities most impacted by injustice.” This could entail a broader focus on community organizing efforts that combine service provision, policy change, public education, and the development of community power with lawyers serving as translators and disseminators of legal information (Arkles, Gehi, and Redfield Reference Arkles, Gehi and Redfield2010). Our respondents all reported a personal and direct connection to the oppressive system that they were seeking to change, which may have enabled them to stay grounded and avoid falling into the “lawyer-only” trap.
Another strategy that Collins (Reference Collins2000, 282) describes is “working the cracks” or the ability for Black women who secure positions of authority in a bureaucracy to use insider knowledge to identify organizational weaknesses and push for policy changes. Recognizing that disciplinary control and power are also asserted over those Black women seeking resistance from within, there are both opportunities for pursuing social justice and the potential to suppress empowerment (Collins Reference Collins2000). Although our respondents reported high levels of optimism, it is not clear whether they will be able to avert the disciplinary power imposed on those working within a system identified as inherently oppressive. On the one hand, many of our participants expressed a desire to gain the insider knowledge and power needed to “work the cracks.” Particularly for those aiming to provide direct services and share knowledge, this strategy could have meaningful micro-level effects. Yet, for the few respondents focused primarily on personal motives for pursuing the law, we might anticipate that they will blend into the existing system without much resistance. The focus on broader social justice movements and enacting widespread change is also admirable, although it was typically described in a less explicit way, which raises the question of whether people working within a system they have identified as oppressive are able to use the law without inadvertently reifying its power.
Given both the power structures that exist and the opportunities for empowerment, resistance from within an institution has the potential to be not only meaningful but also precarious for law students and lawyers with criminal convictions. It is possible that our participants, who saw themselves as a piece of the larger carceral system, were part of the national criminal justice reform optimism that was more prominent during our study collection period or that they (potentially incorrectly) perceived fewer barriers to change because many were still early in their legal careers. It is also possible that this group will be less susceptible to being pulled into the system because of their personal and vicarious experiences with the law. Still, based on similar movements in other marginalized communities, there is reason for caution whenever people work within a system with the explicit goal of changing it. While we are not able to speak to whether our participants will go on to produce the change they desire, they overwhelmingly appeared hopeful, which may be driven in part by the hardships that our often-multi-marginalized participants routinely experienced. These narratives of persistence could also serve as the inspiration they need when encountering barriers to change in the future (Hernandez, Murillo, and Britton Reference Hernandez, Murillo and Britton2022).
Open access
