Law School and the Criminal Justice System: A Disconnect?
By Roger Baron
I graduated from law school 50 years ago. When I entered the practice of law as a naïve young lawyer, I found things weren’t as I expected. The single most dramatic shortcoming I found in my legal education was availability and emphasis on criminal law in the curriculum. Although I needed 90 hours course credits to graduate law school, I was only required to take two courses involving Criminal Law – a 3 credit course in Criminal Law and a 3 credit course in Criminal Procedure.
As a practicing lawyer, I discovered that the vast majority of cases in the state courts were criminal cases. In the county where I had a general practice in rural Missouri, the courthouse clerk kept active criminal files in a separate set of file cabinets than active civil files. There were about twice as many criminal file cabinets than civil file cabinets. Of course, in those days, all records and files were maintained in hard copy as paper products. There were no electronic filing systems.
This imbalance between criminal and civil cases was not unique to Missouri, and is not unique to South Dakota. It is a national phenomenon. I saw it in the file cabinets. We now see it in the statistics.
According to South Dakota’s Unified Judicial System (UJS), for the fiscal year 2025, 68.9% of the cases filed in South Dakota State Court were criminal (139,510 of the total of 202,589). In federal court in South Dakota for the same time period, 58% of all the cases filed were criminal (516 of the total of 890 cases).
In federal court in South Dakota in 2024, there were 42 jury trials held – and 38 of those were criminal. This means slightly more than 90% of all jury trials in the District of South Dakota were criminal cases. (Comparable statistics for jury trials in FY 2025 are not available; the January 2026 federal newsletter reports 40 jury trials in FY 2025, but does not identify how many of those were criminal.)
At the University of South Dakota School of Law, only 6 of 90 required credit hours are devoted to Criminal Law and Criminal Procedure – identical to my experience in Missouri more than 50 years ago. When viewed in comparison with the statistic described above, this disparity is striking. There are some criminal law-related elective courses, but many students do not take these courses.
I am not the first person to question role of criminal law in legal education. More than 60 years ago Professor Harry Glassman asked, Why Don’t We Teach Criminal Law? Glassman observed “The strangest shortcoming in the average law school curriculum is the comparative neglect of criminal law,” which he described as an “orphan” in legal education. Paul Kurtz later conducted a nationwide empirical study of criminal-justice curricula, resulting in the suggestion that there should be an effort to explore how more of the curricula should be devoted to criminal law.
More recently, Professor Alice Ristroph questioned whether traditional criminal-law teaching adequately reflects the realities of the modern criminal justice system. She states that her mission consists of “dual aims to destabilize the current curricular model and to move toward something better.” She posits that this failure of the legal education system has contributed to the mass incarceration phenomenon that society faces today.
Even more recently and closer to home, USD Knudson School of Law Professor Gregory Brazeal published a law review article in which he examines the gap between the traditional law-school curriculum and the actual operation of the American criminal justice system. Professor Brazeal argues that the current system tends to focus on appellate opinions and doctrinal problems, without paying adequate attention to the day-to-day realities of prosecutors, defense lawyers, judges, plea bargaining, and the criminal process.
Of course, counting cases is not the same as counting hours of judicial or attorney time. A single complicated civil lawsuit may require more work than a minor criminal matter. I do not suggest that criminal law should constitute 68.9% of the law-school curriculum at South Dakota’s only law school just because criminal cases constitute 68.9% of the case load in South Dakota. Rather, this disparity raises a legitimate question about whether present allocation of required legal education bears a reasonable relationship to the work lawyers and courts perform.
If criminal cases constitute nearly 70% of South Dakota’s state-court filings, more than half of its federal district-court filings, and more than 90% of its federal jury trials, is it reasonable that a law student graduate with only six required credit hours of criminal-law education? Perhaps the answer is yes. But I believe the question deserves to be asked—and answered—not by tradition, but by looking honestly at the legal system which those students are preparing to enter.
The ultimate question is not whether criminal law should constitute 70% of a law-school curriculum. The question is whether 6.67% is enough.
Authorities: Harry P. Glassman, Why Don’t We Teach Criminal Law?, 14 J. Legal Educ. 170 (1961); Paul M. Kurtz, An Inventory of the Criminal Justice Curriculum of American Law Schools, 31 J. Legal Educ. 164 (1981); Alice Ristroph, The Curriculum of the Carceral State, 120 Colum. L. Rev. 1631 (2020); Gregory Brazeal, Justice Theater in the Criminal Law Curriculum, 45 Cardozo L. Rev. 2421 (2024).
Note: In regard to the preparation of this week’s column, the author would like to thank Professor Gregory Brazeal, Attorney Sarah Baron Houy and Claudia Baron for their assistance and input.
Anyone desiring to communicate with the Author, may do so by sending an e-mail to the author at rogermbaron@gmail.com .
What percentage of private practices’ revenue comes from criminal cases? The simple answer is that, generally speaking, criminal cases are far less lucrative than civil ones. Follow the money, Professor.
But most cases are criminal cases. What you’re implying is that it’s all about money and has nothing to do with public service. So let’s keep teaching civil law while ignoring the reality: if you want to make a living as a lawyer in South Dakota, you’d better learn criminal law so you can put food on the table.
I agree with you regarding the point about it being South Dakota. The nature of the practice here requires the majority of attorneys to be generalists. I wonder what courses we would add? Motion practice in a criminal setting? A trial advocacy course focused on criminal practice?
Follow the money?
Are you asking that question to the commenter above you, or the writer of the article?
Prof posits a legitimate question. However, missing from the equation are the number of civil cases/situations that are prevented or are settled before they are filed due to proper lawyering. He mentions that perhaps more time is spent in the civil practice, than in the criminal practice – but no one is counting and tallying the time for statistical purposes. Much of law school is spent on courses that prevent litigation instead of teaching you to spend your time in court. If there were only a way to teach people how to prevent crime. And I do agree that a few more upper level criminal classes would be good.
Clearly some lawyers are hacks with basic reasoning. Most cases going to trial are criminal because most civil cases settle and additional work is done on the compliance and advisory front to prevent things from going to trial or necessitating a settlement to begin with. Statistical illiteracy amongst the judiciary is also a problem (and one with impacts on both the civil and criminal sides). His point is valid, though his reasoning is dubious.
Well, Papa Baron. I think the greater question is why are (retired) professors like you taking the stance that there should be diploma privilege and the “path” to doing so requires (essentially) work in criminal law. Maybe before we do that they need to demonstrate proficiency in more than a couple required criminal law classes. I don’t want my freedom to hinge upon someone who couldn’t pass a simple test and only had two criminal law classes.
The bar exam does not test on South Dakota law. At one time, it tested matters relevant to practicing law here. South Dakota now has to calculate its bar exam differently from every other state in the nation.
I’m sure that when you took the exam, South Dakota had the simpler version that everyone passed easily. Now law graduates attend USD because it’s affordable, then get licensed in another state. That should concern us.
I’m a big fan of a test that can weed out people who should not be practicing law. The law school isn’t in the business of failing people. There needs to be a barrier to entry.
I know plenty of people who passed the bar and turned out to be terrible lawyers. Some have embezzled money, driven drunk, or been simply incompetent. Passing a test does not determine whether someone will be a successful lawyer. Wasn’t there also a lawyer who was disbarred for inappropriate conduct toward female clients? Wake up and smell the coffee.
He references what was happening 50, 60 years ago and I think it was around 1970 that the Rev William Sloane Coffin Jr came to speak at UMass and specifically addressed the lack of criminal lawyers, that it was a civil rights/social justice issue. He urged everyone who showed up (and it was a good-sized crowd) to consider a career in criminal law. At the time he was a big deal but apparently not enough of us heeded the call. I know I didn’t. I didn’t give it much thought until now.