Why New York Should Retain Question 26

Posted in: Law Practice

About a month ago, a working group of the New York State Bar Association produced a report regarding a question on the New York Bar Exam, question 26. The question asks an applicant for admission to the New York Bar whether, among other things, he has been arrested. The view of the working group is that the New York Bar should not and perhaps legally may not ask this question. The main reason appears to be the correlation between race and ethnicity, on the one hand, and interactions with the police, on the other. As a member of the New York Bar, I neither want to deter people of color from going to law school nor to prevent those who have graduated from being admitted due to a biased experience. However, there may be cases in which an arrest record is indeed relevant to an application to practice law.

To offer an example of a question that could bias things due to a correlation, imagine that the bar exam contained questions the answers to which required an intimate knowledge of golf and tennis. If we discovered that non-white applicants fared worse on these questions, the questions should be eliminated. Is there a reason to retain the question about arrests if we also find a correlation between the answers and the racial or ethnic identity of the applicant? I want to consider in this post whether asking about arrests is like asking about golf and tennis.


The first thing that leaps out at me when I consider the side-by-side comparison of an arrest records question and of golf and tennis questions is that criminal behavior is highly relevant to one’s entitlement to practice law, while a knowledge of golf and tennis is not. The legal profession carries many ethical responsibilities, and a person who has engaged in certain types of criminal behavior is simply not trustworthy as a bearer of ethical duties. Knowing about golf and tennis, by contrast, is completely irrelevant to the quality practice of law. There is more to consider, of course, but it is worth flagging the fact that someone who has been arrested is a lot more likely to have committed a criminal offense than someone who has not been arrested, even though many innocent people are arrested and even though we find a racial correlation in arrest rates.

If we decided that in similar circumstances, a police officer is more likely or even a lot more likely to arrest an African American civilian or a Native American civilian than someone who is white, then the most rational response to this information—given the relevance of criminal history—is to exempt African American and Native American applicants from having to answer question 26 or to bring a skeptical lens to an arrest history in an applicant of color. Not only would this move protect the people about whom the working group of the State Bar Association has expressed concern, but it would leave an important and large population of arrestees transparent to the State Bar. What makes the class of white people who have an arrest record an important population of arrestees? It is the fact that, by hypothesis, police are reluctant to arrest whites for the very same offenses that lead to the arrest of Black people. What this reluctance means is that when a white person has an arrest record, the odds increase that he has done something serious and less forgivable than the average arrestee. The police officer, according to the working group, brings a bias to the job of criminal justice, a bias that perhaps protects all but the most serious white criminals from getting arrested. Perhaps one worries about acting in this race-conscious fashion? Well, the move to eliminate the question is very plainly race conscious as well, and my proposal has the advantage of screening some very bad people out of a profession that prizes ethics. Moreover, if question 26 remains in place, but examiners count the answers more heavily against a white applicant, it would simply be weighing the evidence in accordance with its probative value, a legitimate approach.


A separate problem with the recommendation of the working group is the fact that it is not just arrests that may reflect bias. It is also convictions. Michelle Alexander’s book, The New Jim Crow, is a chronicle of racially biased mass incarceration. Therefore, a person of color is more likely than a white person to have a felony conviction or a misdemeanor conviction because bias does not simply stop when a prosecutor brings a case to a jury. Are we ready to eliminate consideration of criminal convictions? For which crimes? And if we are not, then it seems strangely arbitrary to eliminate the arrest question but leave in place an inquiry into convictions.

Probable Cause?

Everyone who has seen a police procedural knows that police need probable cause before they can arrest a suspect. Probable cause is some quantum of evidence that the Supreme Court has never numerically defined. But we know that it is less than what a criminal conviction requires. Is that fact a good answer to the question about distinguishing between an arrest and a conviction? Are we confident in the conviction in a way that we cannot be when it comes to an arrest? Yes and no.

I suspect that most readers imagine that when the police arrest a person, but the arrest never moves to a trial or a conviction, it means either that (a) there was insufficient evidence to support a finding of guilt beyond a reasonable doubt, or (b) the crime was relatively trivial and therefore would not have justified an effort to try and ultimately to incarcerate the person. If this assumption were accurate, then it would make sense to eliminate Question 26 (or the part that calls for revelation of arrests) because apart from bias, we have no reason to keep innocent people or people guilty of trivial transgressions out of our profession. But it turns out that the facts do not entirely justify that assumption.

There are crimes that prosecutors prefer not to try even when those crimes are, by many lights, extremely serious. And there are crimes, sometimes the same crimes, in which victims suddenly decide not to help the prosecutor. Such crimes have two features in common: (a) they involve perpetrators who know their victims well, and (b) they involve physical and emotional abuse of their victims. I wish I could say that in the year 2022, prosecutors consider rape and domestic violence serious crimes calling for trials, convictions, and severe punishments. But I cannot say anything of the kind because such a claim would be false.  Even though studies find that very few allegations of sexual assault are false, very few of those accused are arrested and almost none are convicted.

Many readers may be familiar with a case in California in which Brock Turner, a Stanford student (and a swimmer, no less) sexually assaulted Chanel Miller, a woman who was too intoxicated to consent. There were third party witnesses, which matters not only because Miller could not recall the details of the assault but also because people routinely apply the “he said, she said” trope when the eyewitness to the crime is a victim and the crime is gender violence. In other sorts of trials, juries regard the criminal defendant as a very low-credibility witness, and a victim as a high-credibility witness. Few characterize robbery trials as “he said, she said,” even though many cases involve no physical evidence and indeed come down to a credibility contest between victim and alleged perpetrator. In cases involving sexual assault, the framing is often exactly the opposite.  The victim’s credibility is often questioned, and the likelihood of conviction may turn as much on concern about whether the defendant “deserves” criminal punishment as whether he committed the offense.


The trial of Brock Turner, as described in Miller’s riveting account, Know My Name, ended in a conviction. The assailant’s father made news by writing a letter to the judge asking for leniency, saying “That [jail] is a steep price to pay for 20 minutes of action….” The judge apparently agreed and imposed a sentence of six months in jail (when the maximum sentence was 14 years). The six months foreseeably became three months in jail. After a successful campaign led by Stanford Law Professor Michele Dauber, the judge who imposed this trivializing sentence, Aaron Persky, was removed from the bench.

Predictably, people concerned about the overincarceration of African Americans worried about the precedent set by recalling a judge for a lenient sentence. But the worry was misguided. Brock Turner was a white college student charged with digitally raping a woman whom he had met. The judge was not, in general, a great lover of leniency. The leniency was apparently all about identifying with the athletic white college student and trivializing a very specific crime. Keeping Persky on the bench would not have helped Black people charged with crimes against white strangers.

In Miller’s case, the only reason the jury convicted was almost certainly the fact that third parties who are presumed credible testified about watching and intervening in the crime while it was in progress. Had Miller remembered what happened and had she wanted to go to trial to vindicate her right to bodily integrity from predators, the prosecutor might have refused to go forward. Juries don’t believe women who charge acquaintance rape, much as the law long treated such women as presumptively crazy or “scorned.” And the same is often true in cases of domestic violence that do not result in major physical injuries or death. In such cases, the most that victims can expect (assuming anything happens for them) is an arrest. Many men agree to take a course in “domestic violence.” Among measures that show no sign of addressing the crisis of relationship abuse, courses in domestic violence have to be at the very top of the list. In fact, when a victim asks the prosecutor to bring a criminal case, and the prosecutor instead offers the perpetrator the opportunity to take a course, the perverse lesson is quite clear and devastating: I do not take your criminal assault against or rape of your girlfriend seriously enough to go to trial. That message can only further liberate the violent predator’s antisocial inclinations toward women for the future.

With acquaintance rape and domestic violence, then, an arrest is often the end of the line. And that is not because victims are lying, and it is not because the crimes are trivial. It is because prosecutors and juries continue to bring to the table rape myths like “she asked for it” and “the woman scorned” narratives of domestic violence.

Accordingly, if Question 26 is reconsidered, I would propose the following substitutes for eliminating altogether an inquiry into arrests: (a) exempt groups whose membership correlates with arrest rates and therefore are suggestive of bias, or (b) take arrests of African Americans and Indigenous people with a grain of salt in reviewing Question 26, or (c) keep the question but only for domestic violence and rape (and all of their synonyms), or (d) keep the question but investigate more deeply the cases involving perpetrators who know their victims. At a time when more and more seemingly ordinary people turn out to be dangerous and violent con artists, the New York Bar must do its part to screen malefactors out of the profession.

Posted in: Law Practice

Tags: bar exam, New York

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