Introduction

Cardozo Law Review has, for the first time, collected all of the articles about the criminal legal system in Volume 42 into one issue.1Cara Suvall, Certifying Second Chances, 42 Cardozo L. Rev. 1175 (2021); Rachel Moran & Jessica Hodge, Law Enforcement Perspectives on Public Access to Misconduct Records, 42 Cardozo L. Rev. 1237 (2021); Ronald F. Wright, Jenny Roberts, & Betina Cutaia Wilkinson, The Shadow Bargainers, 42 Cardozo L. Rev. 1295 (2021); Eric S. Fish, The Paradox of Criminal History, 42 Cardozo L. Rev. 1373 (2021); Anna Roberts, Victims, Right?, 42 Cardozo L. Rev. 1449 (2021); Trena Riley, Note, The Inadequacy of the Impossible: Obtaining Post-Conviction DNA Testing in Alabama, 42 Cardozo L. Rev. 1513 (2021); Zachary Buda, Note, A Critique of Federal Rule of Criminal Procedure 23(b)(2)(B) and a Proposal to Level the Playing Field for Defendants, 42 Cardozo L. Rev. 1549 (2021); Alison Goldman, Note, Defining Necessary Deadly Force for Police: A Framework for Interpreting California’s A.B. 392, 42 Cardozo L. Rev. 1579 (2021). I am thrilled to have the opportunity to frame this issue with some thoughts on criminal legal scholarship.

In the summer of 2020, the United States saw the largest and most sustained protests against police violence in its history.2Lisa Shumaker, U.S. Saw Summer of Black Lives Matter Protests Demanding Change, U.S. News (Dec. 7, 2020, 8:04 AM), https://‌www.usnews.com/‌news/‌top-news/‌articles/‌2020-12-07/us-saw-summer-of-black-lives-matter-protests-demanding-change [https://perma.cc/‌DWU3-AWLQ]; Larry Buchanan, Quoctrung Bui & Jugal K. Patel, Black Lives Matter May be the Largest Movement in U.S. History, N.Y. Times (July 3, 2020), https://‌www.nytimes.com/‌interactive/‌2020/07/03/us/george-floyd-protests-crowd-size.html [https://perma.cc/‌2DVU-3BSW]. Comfortable, White America, like it or not, was forced to bear witness to the centuries-long pain policing has inflicted on Black and Brown America: the literal knee on George Floyd’s neck a too-apt metaphor for the choking fear the specter of police violence imposes on marginalized communities.3See, e.g., Devon W. Carbado, From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to Police Violence, 105 Cal. L. Rev. 125, 128 (2017) (“By and large, Americans tend to think of police killings of African Americans as aberrant and extraordinary, failing to see their connections to the routine, to the everyday, and to the ordinary.”); Paul Butler, The System Is Working the Way It Is Supposed to: The Limits of Criminal Justice Reform, 104 Geo. L.J. 1419, 1425 (2016) (“The most far-reaching racial subordination stems not from illegal police misconduct, but rather from legal police conduct.”).

Lost, though, in the ongoing conversation about police violence, is the vast network of laws, norms, and people who encourage, justify, and reward such violence. Yet, it should be widely recognized that police violence is simply the most visible arm of a system that cages, tortures, and dehumanizes millions of our fellow citizens.4Kate Levine, Police Prosecutions and Punitive Instincts, 98 Wash. L. Rev. 997 (2021); Kate Levine & Joanna Schwartz, Hold Prosecutors Accountable Too, Bos. Rev. (June 22, 2020), http://bostonreview.net/‌law-justice/‌kate-levine-joanna-schwartz-hold-prosecutors-accountable-too [https://perma.cc/‌L274-89RY]; Andrew Manuel Crespo, Regaining Perspective: Constitutional Criminal Adjudication in the U.S. Supreme Court, 100 Minn. L. Rev. 1985, 2034–35 (2016) (noting how often police officers’ testimony will be deemed credible by judges in suppression hearings and used as a bargaining chip by prosecutors); Julia Simon-Kerr, Systemic Lying, 56 Wm. & Mary L. Rev. 2175, 2202 (2015) (Police “testilying” is “routine” due in part to the “cooperation of prosecutors, police officers, and judges who are willing to ignore obvious falsehoods in the courtroom.”). See generally Jessica A. Roth, The “New” District Court Activism in Criminal Justice Reform, 74 N.Y.U. Ann. Surv. Am. L. 277, 279 (2019) (explaining that judges have started to discuss the role they and prosecutors have historically played in mass incarceration). To say, as I will, that prosecutors, legislators, judges, jailors, prison guards, parole officers, and the average non-criminal-justice-involved person are also implicated in Mr. Floyd’s death may seem a provocation, but it is a necessary one if we are to truly reckon with the violence the system metes out to the poor and to people of color.

Our elected legislators decided that Floyd’s alleged crime, passing a counterfeit twenty-dollar bill, was an act worthy of arrest, prosecution, and incarceration.5Minn. Stat. § 609.632(3) (2006). Prosecutors have sent people to jail or prison thousands upon thousands of times for minor crimes such as this.6See Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2020, Prison Pol’y Initiative (Mar. 24, 2020), https://www.prisonpolicy.org/‌reports/‌pie2020.html [https:// ‌perma.cc/‌L2KG-9HM9] (“For behaviors as benign as jaywalking or sitting on a sidewalk, an estimated 13 million misdemeanor charges sweep droves of Americans into the criminal justice system each year (and that’s excluding civil violations and speeding).”); Misdemeanor Sentencing Trends, Nat’l Conf. State Legislatures (Jan. 29, 2019), https://‌www.ncsl.org/‌research/‌civil-and-criminal-justice/‌misdemeanor-sentencing-trends.aspx [https://‌perma.cc/‌KQ2S-Y5BF]; Jordan Smith, How Misdemeanors Turn Innocent People into Criminals, Intercept (Jan. 13, 2019, 9:30 AM), https://theintercept.com/‌2019/‌01/‌13/‌misdemeanor-justice-system-alexandra-natapoff [https://perma.cc/‌2U5Z-EDKG]. Judges have approved the plea deals that send so many to prison for so long.7See Jeffrey Bellin, Reassessing Prosecutorial Power Through the Lens of Mass Incarceration, 116 Mich. L. Rev. 835, 849 (2018). Prison guards make their living off of caging and dehumanizing their fellow human beings.8See generally Allegra M. McLeod, Prison Abolition and Grounded Justice, 62 UCLA L. Rev. 1156 (2015). Parole officers report formerly incarcerated people for miniscule violations that send them back to jail or prison.9Tonja Jacobi, Song Richardson & Gregory Barr, The Attrition of Rights Under Parole, 87 S. Cal. L. Rev. 887, 903–04 (2014). And many members of the public call the police in situations where no one was threatened with harm,10See, e.g., Troy Closson, Amy Cooper Falsely Accused Black Bird-Watcher in 2nd 911 Conversation, N.Y. Times (Oct. 14, 2020), https:/www.nytimes.com/‌2020/‌10/‌14/‌nyregion/‌amy-cooper-false-report-charge.html [https://perma.cc/‌NDS7-YYR2]. despite incontrovertible evidence that encounters with the police are damaging (though rarely deadly).11Amanda Geller, Jeffrey Fagan, Tom Tyler & Bruce G. Link, Aggressive Policing and the Mental Health of Young Urban Men, 104 Am. J. Pub. Health 2321 (2014) (discussing increased anxiety rates among those stopped most often by police). All of these actors have contributed to the conditions that put Mr. Floyd under Derek Chauvin’s knee. What is more, they have encouraged, in the aggregate, untold, smaller violence and harm to so many poor people of color in the country.12Levine, supra note 4, at *48–60. Many of whom sit, caged, right now.

These realities have led to a renewed call, from some legal scholars, for abolition—to tear down the current system and rebuild it without the prison industrial complex.13See, e.g., Jocelyn Simonson, Police Reform Through a Power Lens, 130 Yale L.J. 778 (2021); Amna A. Akbar, An Abolitionist Horizon for (Police) Reform, 108 Cal. L. Rev. 1781 (2020); Allegra M. McLeod, Envisioning Abolition Democracy, 132 Harv. L. Rev. 1613, 1638–40 (2019); McLeod, supra note 8, at 1161–62. See generally Angela Y. Davis, Are Prisons Obsolete? (2003). These scholars tend to focus on broad, structural change, and are skeptical of solutions that call for small scale reform or reform that shores up the criminal legal system as a whole. Other legal scholars, though aware that the criminal legal system is an interconnected web rather than a set of fixed and separate points, believe that tweaking certain specific aspects of the system will have positive ripple effects.14See generally, Alexa Van Brunt & Locke E. Bowman, Toward a Just Model of Pretrial Release: A History of Bail Reform and a Prescription for What’s Next, 108 J. Crim. L. & Criminology 701 (2018); Nicholas P. Johnson, Cash Rules Everything Around the Money Bail System: The Effect of Cash-Only Bail on Indigent Defendants in America’s Money Bail System, 36-37 Buff. Pub. Int. L.J. 29 (2019); Rachel Smith, Note, Condemned to Repeat History? Why the Last Movement for Bail Reform Failed, and How This One Can Succeed, 25 Geo. J. Poverty L. & Pol’y 451 (2018); Heather L. Pickerell, Critical Race Theory & Power: The Case for Progressive Prosecution, 36 Harv. BlackLetter L.J. 73 (2020); Jeffrey Bellin, Theories of Prosecution, 108 Calif. L. Rev. 1203 (2020); Hao Quang Nguyen, Progressive Prosecution: It’s Here, But Now What?, 46 Mitchell Hamline L. Rev. 325 (2020). The articles in this issue represent the best of both of these kinds of scholarship.

One salient issue that has arisen among those who long for large-scale change is the question of whether certain small-scale reforms actually harm, rather than help, the cause of radical decarceration. If a reform tends to shore up, or legitimize, the criminal legal system or increase its reach, such a “reformist reform” may be seen as a net negative.15Akbar, supra note 13, at 1826 (“Abolitionist steps [as opposed to reformist reforms] include suspending the use of paid administrative leave for police under investigation; withholding pensions and refusing to rehire police involved in the use of excessive force; making police liable for misconduct settlements; limiting and withdrawing from participation in police militarization programs; prioritizing spending on community health, education, and affordable housing; and reducing the size of police forces. In contrast, common police reforms like training, body cameras, and community policing increase funding, resources, and, possibly, scale.”). This debate between “reformist reforms” and “abolitionist reforms” is on the rise in conversations among criminal legal scholars. And this is a discussion that should be heeded by anyone interested in seeing her prescription for change or her contribution to the scholarly literature make a mark.

In the rest of this Introduction, I want to trace this idea, of the possible problem with “reformist reforms,” by exploring one particularly prevalent critique of the criminal legal system—its lack of transparency. This kind of critique, and the arguments for more information that often accompany it, can be both an asset to and a distraction from radical change. It is an asset in that it surfaces the way the criminal legal system has been allowed to bloat and to hide its grossest practices from the public. It is a distraction in that it can be confused for achieving actual change to the system, when all transparency does is expose information. It can be a distraction in that too many scholars and advocates focus only on gathering more information about a system that has been shown for decades to be deeply broken, and recently irrevocably so. Moreover, system actors, such as the police, can use their transparency as a way to, in fact, obscure larger abuses and refusals to make systemic changes.

The Articles in this volume do the important work of uncovering dark places in the criminal legal system in a number of different settings. In Law Enforcement Perspectives on Public Access to Misconduct Records, Moran and Hodge discuss the lack of data surrounding the issue of transparency in police misconduct records, adding a new element to this discussion by providing data based on interviews with police themselves regarding law enforcement beliefs about misconduct transparency.16Moran & Hodge, supra note 1. In The Paradox of Criminal History, Fish uncovers the undue influence a person’s criminal history has on collateral consequences—such as immigration status—when judges rely on these histories without full information,17Fish, supra note 1. and, in Certifying Second Chances, Suvall laments the information and access asymmetries that make it difficult for those most at need to take advantage of the reintegration programs designed to create second chances for formerly incarcerated people.18Suvall, supra note 1. In The Shadow Bargainers, Wright, Roberts, and Wilkinson conduct their own qualitative research to open up the black box of plea negotiations, which, despite essentially being the way criminal charges are resolved, remain undertheorized, haphazard, and full of foolish disparities.19Wright et. al., supra note 1. Through these articles, we can see the way a lack of transparency from, or perhaps put better, information asymmetry within, the criminal legal system can wreak havoc on the life of a person: a worse plea outcome,20Id.. the inability to challenge an officer testifying at a suppression hearing or to easily access records for civil lawsuits against police,21Moran, supra note 1. the deportation consequences of a reduced charge,22Fish, supra note 1. and the labyrinthian process of clearing one’s record after serving a prison or jail sentence.23Suvall, supra note 1.

The value of information and of surfacing opacity in the criminal legal system is clear and is rightly celebrated.24Kate Levine, Discipline and Policing, 68 Duke L.J. 839, 849–57 (2019) (noting the many scholars who value and laud transparency efforts). The articles I mention above do this good work, as well as add much more to our conversation on various aspects of the criminal legal system. On the other hand, I see some real and underappreciated downsides to legal scholarship’s many transparency critiques of the criminal legal system. My criticism does not necessarily apply to any or all of the pieces here, but, rather, raises broader concerns about the value of transparency in the criminal legal system25Id. at 889–96 (noting the negative impact of public criminal records). and about the functions of criminal legal scholarship itself.26See Amna Akbar et al., Movement Law, 73 Stan. L. Rev. (forthcoming 2021) (manuscript at 4) (arguing that the function of scholarship on movement lawyering is to “join prefigurative efforts toward justice, freedom, and other ideals that the law claims, yet has failed to achieve . . . . [similar to] jurisprudential schools of thought such as critical legal studies (CLS), critical race theory (CRT), LatCrit, feminist legal theory, critical lawyering, and democratic constitutionalism.”). First, the proposed solutions to many transparency problems are necessarily calls for more transparency. As I, and others, have noted elsewhere, transparency may be a positive instrumental goal, but it is never an end in and of itself.27See Levine, supra note 24, at 853–57. Thus, scholarship that revolves around simply calling for more transparency without actually showing how that transparency will contribute to making change, or that claim transparency will make change when there is good reason to believe it will not, can lead to unproductive and revolving conversations in the scholarly world, and allow criminal legal system actors to claim that they have made reform attempts when all they have done is unleashed information. One can see this very clearly in the world of policing. Transparency is one of the favorite buzzwords of police chiefs around the country and has been for many years. Yet this transparency has rarely led to any actual changes in the way overpoliced communities experience law enforcement or the rate at which racial disparities continue to infect stops, searches, and arrests.28Samuel Sinyangwe, The Police Departments With The Biggest Racial Disparities In Arrests And Killings, FiveThirtyEight (Feb. 4, 2021, 1:09 PM), https://fivethirtyeight.com/‌features/‌the-biden-administration-wants-to-address-racial-bias-in-policing-what-cities-should-it-investigate [https://perma.cc/‌8HUP-EWBQ] (showing racial disparities using FBI data of 8 million arrests in 2019).

Second, transparency may benefit those who are actually tied up in the criminal legal system, but, often, its benefits are overstated and risk obscuring more direct action.29See Levine, supra note 24, at 858–80. Indeed, the groups who most often clamor for more transparency are academics and the media, because these are the groups that can make most direct use of the data through study or investigation. Of course, these groups can use information to make change or to influence those who do, but the notion that transparency is a solution to real-world criminal legal problems is, I think, overstated. For example, one major reform suggestion for the police, from scholars and journalists, is to make their actions more transparent across numerous axes, from policy setting to the punishment of officers who violate rules and everything in between.30See Christina Koningisor, Secrecy Creep, 169 U. Penn. L. Rev. (forthcoming 2021), https://papers.ssrn.com/‌sol3/‌papers.cfm?‌abstract_‌id=‌3672272; Hannah Bloch-Wehba, Visible Policing: Technology, Transparency, & Democratic Control, 109 Calif. L. Rev. (forthcoming 2021) (manuscript at 20–30); Barack Obama, The President’s Role in Advancing Criminal Justice Reform, 130 Harv. L. Rev. 811, 840–41 (2017) (noting that his policing task force unanimously “recommended steps for transparency”); Shima Baradaran Baughman, Subconstitutional Checks, 92 Notre Dame L. Rev. 1071, 1140 (2017) (“[T]he executive branch should institute direct review of . . . [the] police from the highest levels of the executive branch and create transparency of broad—not case-specific—criminal justice data to the public.”); Monica C. Bell, Police Reform and the Dismantling of Legal Estrangement, 126 Yale L.J. 2054, 2144–45 (2017) (“Transparency measures, including data collection and ‘hot ticket’ reforms such as police officer body cameras, can also contribute to the overall democratization of policing in a way that could begin to root out legal estrangement.”); Jonathan Abel, Cops and Pleas: Police Officers’ Influence on Plea Bargaining, 126 Yale L. J. 1730, 1734 (2017) (“[Transparency about] when officers choose to get involved in a plea [bargain]” is essential to understanding the “normative implications of police influence on plea bargaining.”); Stephen Rushin, Using Data to Reduce Police Violence, 57 B.C. L. Rev. 117, 160 (2016) (arguing that data collection on police shootings could help improve the efficacy of federal prosecutions of police); Elizabeth E. Joh, The New Surveillance Discretion: Automated Suspicion, Big Data, and Policing, 10 Harv. L. & Pol’y Rev. 15, 32 (2016) (“When the police can watch many more people and activities with increasing sophistication and at lower cost, we need new transparency and accountability mechanisms.”); Tonja Jacobi, Miranda 2.0, 50 U.C. Davis L. Rev. 1, 47 (2016) (“Greater access to cheap technology could considerably improve police transparency, at little cost. In particular, requiring audiovisual recording of all interrogations would not only help establish actual coercion in some cases, it would reinforce Miranda’s ‘civilizing’ effect on police behavior.”); Barry Friedman & Maria Ponomarenko, Democratic Policing, 90 N.Y.U. L. Rev. 1827, 1835 (2015); Stephen Rushin, The Regulation of Private Police, 115 W. Va. L. Rev. 159, 162 (2012) (“[L]egislatures should create laws that mandate private police transparency, afford aggrieved parties with an efficient means of redress, and ensure public accountability.”); Mary D. Fan, Panopticism for Police: Structural Reform Bargaining and Police Regulation by Data-Driven Surveillance, 87 Wash. L. Rev. 93, 101–02, 129 (2012) (“When police are subject to the watchful gaze of courts, the public, and self-surveillance, they behave in better conformity with expectations.”); Kami Chavis Simmons, The Politics of Policing: Ensuring Stakeholder Collaboration in the Federal Reform of Local Law Enforcement Agencies, 98 J. Crim. L. & Criminology 489, 503–04 (2008). The obsessive focus on police transparency has been made abundantly clear in New York in the last several months, where the main legislative response to the Floyd protests was a successful push to ensure that police disciplinary records are made public, rather than protected as private employment records.31In a Historic Victory, Governor Cuomo Signs Repeal of 50-A into Law, Innocence Project (June 6, 2020), https://innocenceproject.org/‌in-a-historic-victory-the-new-york-legislature-repeals‌-50‌-a-requiring-full-disclosure-of-police-disciplinary-records [https://perma.cc/‌872F-ETQX]. This is just one example of the tremendous time and energy scholars and advocates put into transparency-related solutions to police brutality.32See, e.g., Cynthia Conti-Cook, Statement on Start of Administrative Trial Against NYPD Officer Daniel Pantaleo, Legal Aid Soc’y (May 13, 2019), https://rachel-asher-7wk8.squarespace.com/‌news/2019/5/13/statement-on-start-of-administrative-trial-against-nypd-officer-daniel-pantaleo [https://perma.cc/‌F9AA-2JUU] (“The Legal Aid Society has fought for more transparency around the NYPD and the Staten Island District Attorney’s failure to hold Pantaleo accountable despite City Hall’s continued political protection of both.”). And, while there is certainly something to be gained from publicizing, cataloguing, and studying police disciplinary records,33See generally Ben Grunwald & John Rappaport, The Wandering Officer, 129 Yale L.J. 1676 (2020) (using disciplinary rates and other data to show that officers who are fired often find jobs at other police departments). such transparency solutions often become self-fulfilling. Police departments, once they are forced or choose to adopt transparency, maintain that they are “reformed,” while the ills transparency should reveal, such as systemic racism, go unaddressed.34See Levine, supra note 24, at 853–54. Instead, making use of the overwhelming information we already have about bad practices in police departments to advocate for real and lasting change, such as defunding police,35Mariame Kaba, Yes, We Mean Literally Abolish the Police, N.Y. Times (June 12, 2020), https://www.nytimes.com/‌2020/‌06/12/opinion/sunday/floyd-abolish-defund-police.html [https:// perma.cc/‌8XGV-J5B8]. reducing police contact with citizens,36Christie Thompson, This City Stopped Sending Police to Every 911 Call, Marshall Project (July 24, 2020, 5:00 AM), https://www.themarshallproject.org/‌2020/‌07/‌24/‌crisisresponders [https://perma.cc/‌PN2Z-CFAT]. and giving power over policing to those most affected by it,37See generally Simonson, supra note 13. would seem much more useful than further calls for information. As I will note below, there is no rule that says scholars should be writing to change the criminal legal system for those who are impacted, but, as most scholars claim to be doing just that—critiquing the harshness of the system—it is worth noting that their transparency-related solutions often do little to move the ball forward on that front.

Indeed, in a third way, a focus on transparency can reify endemic biases and shortcomings in the criminal legal system by accepting, without interrogating, who has power in the criminal legal system, why it is structured as it is, and reinforcing binaries. As Anna Roberts shows cogently in her article in this issue, Victims, Right?, even the terms we casually use to describe those involved in the system can perpetuate problematic assumptions. For example, the use of the word “victim” rather than alleged victim, a term commonly employed at the very start of an investigation, suggests that there must be a “perpetrator” rather than an “alleged perpetrator,” semantically skewing the process against an accused person before any burden of proof has been tested.38Roberts, supra note 1. Such language will be all over the police reports, prosecutorial records, charging data, grand jury minutes, and plea negotiations that scholars desire be made public. Rather than helping to uncover a problem in the system then, in a case such as this, transparency serves only to legitimize a perversion of justice.39Id..

Finally, the question of transparency in criminal law gets at another debate, one that simmers beneath the surface of much recent criminal legal scholarship: how much is legal scholarship simply a quest for knowledge and understanding, and how much is it a call to action, a prescription for change, an act of protest against an unfair status quo, or a vision for a better legal future? Many, if not most, law review articles aim to produce knowledge, to solve a doctrinal puzzle, to recategorize a legal phenomenon, or, through empirics, to confirm assumptions or anecdotal realities. But some scholars have begun to ask questions about this style of writing.40See, e.g., Akbar et al., supra note 26, at *23 (“We are . . . calling for a shift in scholarly approaches in our current crisis.”); Bernard E. Harcourt, Introduction to 1/13: On Theory and Praxis, and Truth, Politics, and Power, Critique & Praxis 13/13 (Sept. 8, 2018), http://blogs.law.columbia.edu/‌praxis1313/‌bernard-e-harcourt-introduction-to-1-13-on-theory-and-praxis-and-truth-politics-and-power [https://perma.cc/‌9XTD-4Y96] (calling for a “renewed embrace of praxis”); Jedediah Britton-Purdy et al., Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis, 129 Yale L.J. 1784, 1786–94 (2020) (arguing that political economy should be central to legal scholarship); Carbado, supra note 3, at 131–32, 138–39, 158, 163–64 (describing the evolution of Fourth Amendment jurisprudence as a way of facilitating police violence against Black people); Jennifer M. Chacón, Unsettling History, 131 Harv. L. Rev. 1078, 1078–84 (2018) (reviewing Kelly Lytle Hernández, City of Inmates: Conquest, Rebellion, and the Rise of Human Caging in Los Angeles, 1771–1965 (2017)) (arguing that attending to the narratives of those directly affected by the system—the “rebel archive”—can help uncover “the interconnected nature of governmental oppression”). The question of what scholarship should uncover is just beneath the one I have posed here of how far transparency gets us in the criminal legal system. A question that I often struggle with is, when is the aggregate information we do have enough? Why do we need more information, to take an obvious example, and one unrelated to this issue, about the racial disparities inherent in the application of the death penalty to declare it hopelessly broken?41There are numerous articles showing that the death penalty has always been racist and unfairly applied. See, e.g., Carol S. Steiker & Jordan M. Steiker, The American Death Penalty and the (In)visibility of Race, 82 U. Chi. L. Rev. 243, 244 (2015) (noting that even “[t]he justices who ‘constitutionalized’ the death penalty in the 1960s and 1970s could not have avoided consciously reflecting on the racial history of capital punishment in America . . . .”); Stephen B. Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 Yale L.J. 1835, 1878 (1994) (“Those facing the death penalty are generally poor, often members of racial minorities, often afflicted with substantial mental impairments . . . .”). Or, put another way, when will there be enough information to say either that this is an untenable punishment because of the way it perpetuates racism or to admit that we do not need more information, we just do not value racial equality enough to overcome our desire to maintain capital punishment? As a general matter, then, I am left to wonder how much more information do we need to know that the criminal legal system in this country is a failed experiment? How many statistical analyses, how many qualitative studies, how much data would be enough?

But these questions surface an underlying and current struggle in criminal legal scholarship and teaching: how much should the legal scholar strive to help implement her better vision of society? The concern that transparency is a revolving and increasingly marginal door to change in the system only matters if a vision of legal scholarship is aspirational.42See Levine, supra note 24. To many, legal scholarship may simply be about a quest for understanding or for surfacing dilemmas or problems within a system.43Lee Epstein & Gary King, The Rules of Inference, 69 U. Chi. L. Rev. 1, 9 (2002) (“Too much legal scholarship ignores the rules of inference and applies instead the ‘rules’ of persuasion and advocacy. These ‘rules’ have an important place in legal studies, but not when the goal is to learn about the empirical world.”); Joseph William Singer, Legal Realism Now, 76 Calif. L. Rev. 465, 543 (1988) (reviewing Laura Kalman, Legal Realism at Yale: 1927–1960 (1986)) (“Liberal and critical theorists . . . . do not disagree about the possibility of generating legitimate moral commitments or normative discourse. We do disagree, in fundamental ways, about how to conceptualize and engage in moral inquiry and conversation.”). These quests are at the root of the desire to collect data and to lament opacity. And that quest is, in many ways, the most natural one for an academic. Other scholars, in particular a recent movement in criminal law scholarship, have begun to suggest that it is a scholar’s responsibility to put forth a vision of the criminal legal system that demands change to the status quo, including the way academic scholarship and teaching work to maintain the structures and systems that have been known to cause so much harm to so many for so long.

These visions of scholarship are not necessarily mutually exclusive, but, like the idea of reformist reforms versus abolitionist reforms, they signal true differences of opinion among legal scholars about what our job is, what our scholarship does, and for whom we do it. These questions will certainly occupy me as I continue my work, and, perhaps, will provide an interesting lens upon which to view the five excellent pieces in this volume.