Why every law school should teach prison law

With the turn to fall, students are heading into law schools across the country, cracking open the classics of the law school curriculum: contract, tort, property, constitutional law, and criminal law. 

How many of them will be studying prison law? 

The body of statutes, regulations, procedures, oversight, and constitutional and human rights that constrain incarceration in all its forms has never been more relevant. 

Currently, there are more than 35,000 people in Canadian prisons, and many more on conditional release. 

At the federal level, more than a third of prisoners are Indigenous, and a full half are in prisons designated for women. These numbers have increased since the Truth and Reconciliation Commission expressed alarm about Indigenous mass imprisonment and called on law schools to engage more deeply with their role in (de)colonization. Each decade, new reports and inquiries document the growing gaps in safety, human rights, and the rule of law in Canadian carceral institutions.

Legal education needs to grapple with these legal realities.

Historically, prison law has been neglected in Canadian legal education. While it’s on the rise, it’s still finding its place. The first Canadian law school was founded in 1883 (50 years after Canada’s first prison, Kingston Penitentiary, was built), but prison law was not taught until 1972, when it was introduced at the University of British Columbia. Today, half a dozen or so of Canada’s 24 law schools reliably offer a dedicated prison law course as part of their curriculum.

We think it is essential that every law school in Canada offers a dedicated, well-supported course on the subject.

Just as no legal education is complete without learning about criminal justice, no education in criminal justice is complete without learning about prison law. 

Prisons play a definitive role in Canada’s criminal justice system. The nature and rules of criminal liability, procedure, evidence, and sentencing are all shaped by the looming threat of imprisonment, and prisons are often expected to deliver criminal justice’s aims. 

Despite this, our colleague Prof. Lisa Kerr has likened prison to a “black box,” even for legal scholars, lawyers and judges: something whose function we presume, but without any insight into what goes on inside it. 

This problem starts in law school. 

While prisons might be the elephant in the classroom in other criminal justice courses, none of the usual subjects have the space to critically engage with the realities of prison life or its administration. Consequently, most Crown prosecutors and defence counsel regularly pursue and grapple with prison sentences without ever having studied prison law or learning about the realities of incarceration. Even among prison lawyers, it is common to have joined the field without benefitting from supported study in law school.

Our students often share how necessary and transformative studying prison law can be. In these courses, the actual workings of these institutions are explored in depth; abstract ideas like the loss of liberty are made concrete, and the knowledge and skills necessary to support the rule of law within prisons are developed.

At the same time, prison law isn’t only useful for law students intending to work in criminal contexts. As Justice Muldoon said in 1984 in Russell v Radley, a prison is “a society within a society.” Capturing all facets of life, prison law allows students to see that legal practice isn’t siloed. It’s also a chance to engage with areas they are passionate about, including labour, health, family, and tort law, as they appear in and are contorted to fit a carceral setting. 

Beyond making rights abuses concrete, prison law is a site for students to grapple with the realities of access to justice, pushing them to think creatively about legal arguments, the significance of other disciplines, and how to use limited resources to achieve results for clients.

Prison law is also a key lens for understanding the legal and social effects of colonialism, with which prisons have strong historical ties.

Importantly, prison law courses also create opportunities to learn from and serve those in prisons. Going into institutions and interacting with the people incarcerated there is often an integral part of the coursework. These encounters humanize people who have often been reduced to their worst acts by case reports and media stories, and offer opportunities to develop practical skills. 

These learning opportunities can be leveraged to help serve some of society’s most vulnerable, as prison law courses in this country are often attached to clinical education initiatives. Indeed, with twin challenges of access to justice and human rights abuses persisting in Canadian prisons, there is a real need for effective legal support. Law schools have a social responsibility to contribute to bridging these gaps, if not by directly providing services, then by preparing their law graduates to help as prison lawyers, policymakers, or influential community members. Creating and adequately supporting prison law courses is essential to this effort.

Those who have already graduated also have an important role to play. Lawyers, especially those in criminal justice roles, can connect with leadership at their alma maters and help advocate for these courses, explain their relevance to their work, and share stories showing their importance. In turn, vibrant research and teaching in these areas may enrich that work through continuing education opportunities. 

Donors can signal the importance of prison law by earmarking funds for these purposes and creating scholarships and prizes that recognize and support the most promising prison law students. Prison lawyers can likewise share their expertise with professors, students, and project administrators as part of prison law education. 

Every region of Canada has people in prison, and every law school should teach prison law. It might not yet be a classic, but the legal community should throw its collective weight behind it—not just for the 35,000 people behind bars but for legal education itself.