JOSH BOWERS: Welcome to
the 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 law
and criminal procedure classes. I also teach them other
courses as well, occasionally constitutional law. Every year I teach a
seminar with my colleague Charles Barzun called Rule
of Law and Threats to It. In my former life, I
was a public defender at the Bronx Defenders-- Holistic Defender Office,
obviously in Bronx County, New York. Sounds a little bit
like a superhero outfit, but we kind of thought
of ourselves that way. And before that I was
a white collar defense attorney for a year at a
boutique white collar defense firm in Midtown Manhattan. So, you know, I'm happy to talk
to you guys about private side defense work, indigent
defender work, and criminal justice
more generally. And actually that's
what we're going to talk about today, obviously,
is criminal justice-- oh, also I should mention I am
formerly co-director and still faculty advisor of the program
in Law and Public Service. I don't know if any
of you guys just came from Crystal
Shin's panel, but I've worked for a long time
with the public interest program, the Law and
Public Service program, and, informally, with
other public interest efforts at the law school. So I want to talk to you
today about what it's like and what you can
expect when it comes to studying criminal law and
criminal justice at UVA law school. So what you're definitely going
to study, almost no matter where you go to law
school, because it's pretty much a core
requirement for 1Ls at any law school
in the country, is what's called
substantive criminal law. This is the 1L criminal
law course, the required 1L criminal law course. And what you can think of it
as 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 we
go about making criminal law. And to put that simply, criminal
law is somewhat special when it comes to first year
courses, because it's your one opportunity to engage
in the legal skill of statutory interpretation. And there's good
reason for that. So contracts and
torts and property may be dictated by
what's called common law, by judicial decisions, by kind
of reading the judicial tea leaves. Criminal law is not like that-- or it's not entirely like that. There's still a common
law element to it, there's still
interpretive elements, but interpretation of what? Of written statutes. And the reason for
that is we want to be especially careful
before bringing down the hammer of the state. Bringing down this-- all law
has effect on people's lives, but only one body of
law carries the stigma and the hard treatment
of criminal punishment. So at least ostensibly
we're supposed to be careful with that. Now what statutes are we
looking at when it comes to substantive criminal law? At pretty much any so-called
national law school, what you are looking
at is not exclusively the body of law local to
that particular law school. So yes, we will touch
on Virginia statutes, but we will not look exclusively
at or even predominantly at Virginia statutes. We'll look for national trends,
minority trends, majority trends, and that's to prepare
you to practice criminal law just about anywhere. The other big box of
crim law related courses, beyond substantive
criminal law, is what's called criminal procedure. Really, the how of how crim law
actors, how the stakeholders, how the professionals
do their work. The police officers, the
prosecutors, the defense attorneys, and the judges. And this class in turn
separates-- not class-- this box in turn separates into
kind of two halves of classes. Criminal procedure classes
that focus on investigations, pejoratively called, cynically
called Cops and Robbers-- how police officers
do their work. And the other half is called
Adjudication, pejoratively called Bail to Jail, as
if those are the only two things that can happen, right? And Adjudication what
we're really talking about is principally
constitutional regulation of the work of
defense attorneys, prosecutors, judges, whether
at trial, the lead up to trial, or plea bargaining. We look at the constitutional
regulation of plea bargaining. And for that matter, I
teach an upper level seminar called Plea Bargaining,
which focuses exclusively on that practice. The normative dimensions
of it, its problems, and the practical implications. And then Investigation's
really interesting class. Focuses also on
constitutional regulation, [? in care ?] of the police. Fourth Amendment,
searches and seizures, unreasonable searches
and seizures. It's fascinating
material and extremely meaningful and
important, because it has real world consequences
that you guys are well aware of. Look no further than a debate
about Black Lives Matter movement. These are the cases
that bubble up into the public consciousness. Likewise, Fifth
Amendment regulates the conduct of police officers. Think about Miranda, which
you guys are probably already familiar with the
Miranda warnings, right? OK. When you're taking
criminal procedure, you can either take-- the doctrinal course as opposed
to the upper level seminars, which you can also take-- you can either take the three
credit Investigation class all by itself, dealing with
the constitutional regulation of the police, the three
credit Adjudication class all by itself, dealing with
what happens after arrest, really from charge
all the way up to adjudication to
disposition, or you can take both of these three
credit classes for six credits, or you can take a class that I
teach, the four credit Criminal Procedure Survey, which
includes some of both sides. Some of both halves. What else do I want to say
about Criminal Procedure-- I mean, at the end
of the day when you're talking about
criminal procedure you're talking about the rules of
what makes a fair process, or at least what's supposed
to make a fair process. But even that turns into this
debate about what is fairness? Is it right treatment,
or is it accuracy? Is it OK that you
had a sleeping lawyer because you were guilty anyway? Or do we say no, there's just
something wrong, something ineffective. It's a right to
counsel doctrine, and ineffective
assistance of counsel. There's something ineffective
about not having that advocate zealously advocating on your
behalf throughout the trial, independent of whether
you're actually guilty of the crime or not. And at a higher
level of abstraction, whether we're talking
about criminal procedure or we're talking about
substantive criminal law, for that matter-- any public law course, what
we're ultimately talking about is the balance between
individual liberties, whether that's
liberty, whether it's right to self-determination,
autonomy, whether it's equality, whether
it's dignity, and public safety and order. And the state's claim,
if it has that claim, to that particular regime of
social order it's pursuing. That is to say, when is
the state our friend, giving us benefits and
subsidies, versus when is the state a threat to us. This is core to all
public law courses, but it's especially
profound when we talk about criminal law
and criminal procedure. What do our enforcement
and punishment practices have to say about us, about
who we are as a people? With that grand charge
behind us, I just-- a little more on the nitty
gritty, the nuts and bolts. So you've got
Substantive Criminal Law during your 1L year. You've got Criminal
Procedure which you can take as an elective at
any point throughout your time here, or not at all,
if you if you decide that criminal law was
enough, but especially Investigations, very rich,
very interesting materials. Beyond that there are lots of
upper level seminars on crim theory seminars, crim
procedure seminars, substantive criminal
law seminars, seminars on
affirmative defenses, seminars on social
science and the law. Professor Harman's class,
Law of the Police, which has become something of a novel-- sorry, national model. Kim Ferzan is one
of the foremost crim theorists in the country. You take a practical class,
like my Plea Bargaining class, or you can take an
experiential class, like the Prosecution Clinic,
the Defense Clinic, the Criminal Defense Clinic, or for that
matter, the Innocence Clinic. And there are ways to get
involved in criminal justice even without-- or even before you get
up to 2L and 3L year where you're doing
clinical work. So for instance, you can become
a part of a pro bono project during your 1L year. In addition to a bail
reform project which I've been involved
in-- bail reform is extremely topical issue in
criminal justice right now. I'm also a member of
the civilian review board for the city
of Charlottesville. And in both capacities
I've sort of set up my own mini pro
bono projects and brought 1L students into those efforts. And there's lots of
opportunities like that. There's the externship program. I don't know if you guys are
going to go to the externship panel, but a number
of the externships are in the criminal law domain. Even our Supreme Court
clinic, it's not exclusively about crim cases. But more often than
not it seems like when cert is granted to the Supreme
Court clinic, when they get to argue and briefs their
cases before the Supreme Court, it is for crim law cases. They get cert granted
on crim law cases, and we just got a really
exceptional crim law faculty at this law school. I mean, my colleagues
are really my heroes because they're not
just exceptional in the sense of
scholarship, they're really excellent teachers who care
about their teaching a lot. And I don't mean to badmouth
any law school in particular, but I've been affiliated
with several law schools, some of which care more
about teaching, some of which care less. This is a law school that
cares a lot about teaching. It doesn't mean that every
teacher you have while you're here is going to be a great
or an exceptional teacher, but everyone's
going to bring it. Everyone's going to try. And that's really valuable. That's really valuable. I mean, that's what
helps 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 of
the names of people working in the crim law
domain here, and I'm sure many leave some
people out, but John Monahan, social science
and criminal law. Barb Armacost, John
Jeffries, who's currently working on [? Main ?]
Grounds, but will come over, I'm sure, to teach a class
or two every now and then. Richard Bonnie, who just about
wrote the book on insanity. Daryl Brown, a public
defender like myself. Rachel Harmon, a
leading scholar when it comes to regulation
of police practices, and Coughlin who
I just mentioned. Likewise, Kim Ferzan,
who I also mentioned, as a really prominent
crim theorist. Since Criminal Law is the course
you are all going to take, and you're going
to take it soon, almost wherever you
go to law school, I thought I'd talk a little bit
about that course in particular and what you can expect from it. I mentioned that it
is a statutory course in orientation. One of the things you take
up almost immediately when it comes to criminal law is the
purposes of punishment itself. Why do we punish? And these purposes
often break in two different conceptual
frameworks, but typically break into four categories:
retribution, deterrence, incapacitation,
and rehabilitation. In a nutshell, retribution is-- some people frame it
as an eye for an eye. But what do you deserve? Let's get even with
this person for doing this bad thing, the
socially costly thing that he or she did. Deterrence is not
so retrospective, it's more prospective. Retribution's looking back
at the conduct you did and saying that conduct
was blameworthy, for X, Y, or Z reason. Deterrence is saying
well, let's look forward and try to minimize the chance
that this happens again, by teaching that person a lesson
and by expressing that lesson to the rest of the community. To say if other people
behave like this, you are going to face the
same sets of consequences. Incapacitation-- I'll give you
a cartoonish version of it. It's actually more sophisticated
than this, but sort of says, well, OK, we can try to
teach people lessons, but the best way to make sure
people don't do something again is just to lock them up. And it's more
sophisticated than that-- and then rehabilitation
is saying wait, no-- it's both looking
backwards and forwards, saying there's a reason
why this happened and we can sort of fix what
ails this person to make sure it doesn't happen again. So it's something closer
to a public health approach than a blame
and shame approach. Drug courts might be
a modern instantiation of a rehabilitative
criminal justice model. We talk about the different
purposes of punishment, and we also talk about the
crime definition process a lot, which I already
sketched out to you. Statutory in nature. You might say-- again, we
touched a little bit on why, but it's basically
that the touchstone of the principle of legality. The rule of law as applied
to criminal justice. The touchstone is publicity
and precision, what's sometimes called notice and standards. This idea that the
stigma and hard treatment of criminal justice demand that
we make especially clear to you at the front end
what is prescribed so you can plan your
life accordingly, and that we rein in-- we limit-- the ability--
now, discretion still exists in our criminal
justice system, but to the extent possible,
we rein in that discretion by putting in place
criteria or standards for enforcement and punishment. The rules of the game for
the police, the prosecutors, the defense attorneys,
and the judges. And then we move on to the
basic elements of any crime. When we talk about the
basic elements of any crime, you may have some
familiarity with this where you say, OK, well,
the elements of burglary are breaking or entering
a building with intent to commit a crime therein. Yes, those are the specific
elements of burglary. But at core the
elements of crime-- crime must contain elements
that fall into two camps, and we kind of need
both of these camps. So I think you guys already
intuit the answer to this, so let me just ask you a question. My 15-year-old daughter used
to be a very neurotic kid, and when I first got here
she was about five years old. I'd sort of watch her express
some of her anxieties, and one of her anxieties
was she would say something like this to me. She's rule bound kid, too. She'd say-- less so
now as a 15-year-old, but that's just that's
the passage of time-- but she would say, "I'm worried
I've done something wrong, because I was thinking
about hitting my brother." And what do you think
our question for her-- what do you think the
follow up to that was? What do you think we said? She said I'm just thinking
about 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 least
we're not supposed to-- punish people for just
their bad thoughts. Even their bad resolutions. It's their bad actions. We need to have some
amount of activity. You might say, well
what about attempt, what about uncompleted crimes? Significantly, even for
an uncompleted crime, we demand that you took
steps in the direct-- what some have called
substantial step, or an overt action in
furtherance of the crime. It's not enough that you
just said I am set on doing. It's not enough that you
wrote it in your diary and said I'm going to do this. Conduct is required
for criminal punishment in a small l liberal
criminal justice system, a criminal
justice system that hews to the rule of law. Now something else she
would sometimes say is-- she'd get troubled by
the differences between-- or she didn't see the
differences between a lie, and a joke or a story. She's sort of saying but
these 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 actually
taking one of the mens rea terms of criminal
justice, which is malice. But yeah, it's enough to
say in colloquial terms the intent is different
as between the two. Your mind state is different
as between the two. What's called your mens rea is
different as between the two. In one instance, you have
an intent to deceive. That's what makes it a lie. In the other instance, you have
an intent to make someone laugh or entertain them. That's a different
form of intent, and one intent is worthy
of criminal punishment, and one intent is-- or may be
worthy of criminal punishment, and one intent is not. So it's not just-- and this is a term often
used in old criminal law-- it's not just the
evil doing hand, it's also the guilty mind. Oliver Wendell Holmes said-- I'm paraphrasing here, something
along the lines of even a dog can tell the difference between
being kicked and stumbled over. The conduct ultimately
may be the same, and even the harm
may be the same. The dog may be
just as physically injured by the stumble
as opposed to the kick, but the kick is intentional. What old criminal would
call malicious, right? Now it could be that there
is room to criminally punish even the stumble. Perhaps the person--
this is the dog's domain, and the person is recklessly
running about this domain in a dangerous manner. We might say that that kind
of mind state, recklessness, is also worthy of
criminal punishment, but that's exactly the point. And that's what
we drill down to. There's lots of different
types of mind states that could be coupled with lots
of different types of conduct. The intention or purpose,
knowledge, recklessness, negligence-- is
negligence sufficient for criminal culpability? This is a big point
of controversy. Then we also explore these
weird, kind of idiosyncratic corners, major points
of controversy-- where, notwithstanding
everything I just said, the criminal law says in
certain small circumstances we're going to have what's
called strict liability crimes, or strict liability elements. We're going to remove this
typical core requirement, and that's what these typical
core requirements are, conduct and mens rea. So one more in that vein. I remember my daughter
once, who wandered through the neighbor's yard. Allowed to do so, not
trespass, the neighbor had given permission. But it was a summer
day, dewy grass, grass stuck to her shoes. And I saw her swatting at
the grass on her shoes. And I said, "What's the matter?" And she said, "I
stole their grass." And-- you know-- one might-- so OK,
play defense attorney before you've even
gone to law school. What would your defenses be? What does she lack? Why is this almost
comical 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 of
another-- 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 of
another-- larceny's taking property of
another with an intent to permanently deprive. She had no intent to do so. In fact, she was trying
to make up for it, even though I'm sure the
neighbors are like just go, we didn't want the
grass clippings anyway. So don't worry, you're
performing a service. Then toward the back half
of Substantive Crime-- Substantive Criminal Law,
different professors do it differently, but for
me it's the back half, we start taking up defenses. And some of these
defenses have to do with just the inverse of
the mens rea requirement, saying certain defenses that
demonstrate that mens rea, that the guilty mind, is lacking. So a famous case, a
Green case out of Texas. Green goes out on the range, and
he brings home a bunch of hogs, and the police arrest
him because they say those weren't your hogs. And he said, yeah, you're
right, they're not my hogs, but I thought they were. So he's offering what's called
a mistake defense, right? Now one question is, is his
mistake genuinely held-- that is to say is it honest-- but let's assume
that it was honest-- then we say, when is
a mistake sufficient? Well, sometimes if
it's merely honest, sometimes it has to be
honest and reasonable. From there we move on
to affirmative defenses. These are things you
might be familiar with from movies and TV and from
popular accounts in the media. Affirmative defense
of excuse is insanity. In affirmative defense of
justification, one of them is self-defense. So we take up those
questions as well. All right, so that is
Substantive Criminal Law. We are now pretty deep in. So I could talk more
about Criminal Procedure, but I think I'll just open
it up to questions instead. These can be questions
about anything. It don't have to be about
Substantive Criminal Law. It can distributed by publicly
interest opportunities having to do with criminal
justice at the law school. SUBJECT 2: So back
to the pro bono thing you were talking about earlier. I kind of have this
problem [INAUDIBLE] I live in a big city,
and I think pro bono for big city schools-- it's
easy to find [INAUDIBLE].. JOSH BOWERS: Yeah, so-- I was actually talking
about this with a student at the end of the
last session as well. So there's trade offs, right. So the obvious plus at a
big city is that there-- a place like New York-- lots of different public
interest organizations within a stone's throw. But the law school may not
have a deep or meaningful relationship with any of those
civil or criminal legal service offices. By contrast, we've got
the Legal Aid Justice Center in
Charlottesville, which is one of the premier
civil legal services offices in the country. Does some criminal
related stuff as well. And they're all--
well, not all-- a great number of the lawyers
there our former graduates. They help us run our clinics. I'm on their board,
my wife works there. We've got an intimate connection
with not just LAJC but some of the other
offices in the city, because it's a smaller pond but
all the fish know each other. And so that actually leads to-- I almost feel like it
leads to the ability to have this kind of
pro bono experiences right away without
getting lost in the crowd. And frankly, we also have an
externship program, full time and part time externships
and other metropolitan areas nearby. So lots of people do a part time
externship with a office in DC or in Richmond, and
they're still coming back to do their classes here. I'll just say this. For a college town we
have an outsized number of two professions, and
I'm looking at Warren when I say this because
we're mutual friends with one group of these people. I feel like there are
a lot of architects here, because everyone's like
oh, the Jeffersonian vision. You know, Jefferson was an
architect, I'll be one, too, and I'm going to stay here. And there's lots
of lawyers here. There are a lot of lawyers
working locally here. All of whom we are
intimately familiar with and we have good
relationships with. Just a couple days
ago, I was sitting in the office of Joe Pletena,
our commonwealth attorney. He helps run our
prosecution clinic, and he was talking to me
about a number of my students, and he was talking about the
pro bono project I was running through the civilian review
board and ways he could set up more pro bono opportunities
at the commonwealth attorney's office. It works out well
for us, but there is that tension which any law
student should think about. More offices but less
of a relationship, or fewer offices and
more of a relationship. SUBJECT 3: Is the
[? Hunton-Andrews ?] current partnership in Richmond
or Charlottesville? JOSH BOWERS: I don't know,
because Hunton-Williams has offices in both
places, and so I don't know if it's local to
one or it could be either. Likewise, LAJC has an office
in Richmond, Charlottesville, and northern Virginia. SUBJECT 3: So-- sorry, do
you guys interface at all with SARA or the Shelter for
Health and Emergency here? JOSH BOWERS: I'm
sorry, can you say-- SUBJECT 3: Do you guys interface
with SARA or the Shelter for Health and Emergency here? JOSH BOWERS: Oh, yes! At first I thought
you were saying Sarah, as in a person named Sarah. I was like, I know
lots of Sarahs. Yeah, yeah. SUBJECT 3: That's Sexual
Assault Resource Agency. JOSH BOWERS: Yeah,
and CASA nearby. It's not just LAJC, so thank
you for supplementing that. The Public Service
Center and Kimberly Emery is our pro bono coordinator
can give you has a wealth of information about-- I know some of the
crim related stuff that I have helped students-- I've been a liaison
for students. Those organizations,
or those opportunities. But Kimberly Emery
and Annie Kim-- or for that matter,
Crystal Shin can give you a more whole picture. SUBJECT 4: How many crime
law students would you say are you some aspect of
experiental learning, whether it's clinics
or externships. How many law students are
given that opportunity? JOSH BOWERS: Everyone's
given the opportunity. Which opportunity-- you know, it
may be my wife runs special ed pro bono project
year after year. And some years she'll get 10
applicants for six or seven spots, and she'll have to
make some hard decisions. But there are other pro bono
opportunities for those three or four students. Other times she'll get six
applicants for seven spots. So there's lots
of opportunities. In terms of how many
students take advantage of those opportunities,
I think students who are interested in crim
practice, whether it's prosecution or defense, have
a good sense that they really should do that kind
of work right away. And I think that's
the right approach, so I feel like
every student I talk to who's interested
at least in being a prosecutor or
a public defender or otherwise doing criminal
justice reform or something criminal law related
straight out of graduation or a clerkship, they're
seizing those experiential opportunities, whether it's
extracurricular pro bono project, or curricular,
like clinical offering, they're seizing those
opportunities while they're here, and they should. And this is actually
something I said during the last [INAUDIBLE]. I think it's
especially important if you're interested
in criminal law and you think you
may end up going to a firm for a
couple of years, you want to build that
crim law resume now. Because you do not want
when you're essentially transitioning away from a
firm into the job that-- this has been my dream job
since I went to law school, whether it's prosecution or
public defense, what have you-- you don't want it to
look to an employer like you're just
sick of your firm. You want to convey
through your resume the idea that this has
always 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 course
we 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 about
just the Law and Public Service program if you want,
because like I said, I've been a part of that
program for a very long time. Thank you.
