Criminal history inquiries and minority threat in the legal profession: An analysis of law school and state bar admission applications

Abstract

While all but one U.S. law school and every state bar ask about criminal history on their admissions application, such inquiries vary considerably in the depth of information sought. One potential explanation for variations in the depth of criminal history inquiries among law schools and state bars relates to minority threat dynamics. Drawing on data quantifying the depth of criminal history inquiries for 190 ABA-approved law schools and all state bars, as well as school and state demographics, this study explores the issue for the first time. Negative binomial regressions reveal that law schools and state bars located in states with larger Black and Latino populations employ more probing criminal history inquiries. We also find that this relationship is parabolic-where the minority threat effect is negative in states with a critical mass of Black/Latino residents. Finally, minority threat effects for law school criminal history inquiries are moderated by state bar criminal history inquiries, suggesting that law schools are cued by state bar policies. These results provide some support for minority threat theory, informing debates about the continued use of criminal history inquiries to screen prospective law students and lawyers, and the inclusiveness of the legal profession generally. | INTRODUCTIONThough lawyers are part of the populace they swear to serve, the legal profession is notoriously homogeneous (Kennedy, 2019). Roughly 61% of first-year law students are white, whereas only James M. Binnall and Nick Petersen contributed equally to this manuscript.

The Lure of the Law for the Formerly Convicted: Pursuing the Legal Profession as a Resistance Strategy

“…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 2021). 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.…”

“…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 2020;Binnall and Davis 2021;Donaldson and Viera 2021). 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 2019, 108; see also Richards and Ross 2001).…”

The Lure of the Law for the Formerly Convicted: Pursuing the Legal Profession as a Resistance Strategy

“…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 2011;Patel 2012, 1). While those with prior conviction histories are often viewed as "liabilities to be managed" (Travis 2005, 7), those with prior carceral contact bring a unique knowledge and skillset to their subsequent endeavors, as Hadar Aviram (2020) and Binnall (2021Binnall ( , 2022 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.…”

“…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 2021). 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.…”

“…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 2020; Binnall and Davis 2021; Donaldson and Viera 2021). 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 2019, 108; see also Richards and Ross 2001).…”