Born in Maryland, Dwayne Betts’ LAW ’16 parents separated when he was a toddler. A bright, bookish kid, he was enrolled in gifted programs throughout his youth. In high school, he was an honors student and class treasurer.
But Betts began to drift. In December 1996, he and a friend drove a neighbor’s car to a mall in the suburbs of Northern Virginia. In the parking lot, they found a man asleep in a Pontiac Grand Prix. Betts pointed to a borrowed pistol at the window, took the man’s wallet and drove off. The next day, Betts and his friend tried to buy $300 worth of clothes with the man’s stolen credit card. A clerk called security; the two were arrested and confessed shortly thereafter.
Betts cried after his first court appearance. He had never been in trouble with the police and was going to miss Christmas. Relying on a draconian statute that allowed him to transfer children from juvenile to criminal court, Betts’ prosecutor charged the 16-year-old as an adult with carjacking, use of a firearm during a felony and attempted robbery. Judge Bruce Bach, who sentenced Betts to nine years in prison, reportedly told him that he did not “have any illusions that the penitentiary” was going to help him. Nonetheless, he encouraged Betts “to get something out of it.”
Betts took Judge Bach’s advice to heart. During his eight years in five different facilities, Betts completed high school, taught himself Spanish, became his own lawyer, began reading and writing fantasy, philosophy, poetry and essays and gained a reputation among the inmates and guards as a man of great wisdom.
Upon leaving prison in March 2005, Betts enrolled at Prince George’s Community College, made straight As, transferred to the University of Maryland, earned a 4.0 GPA there and delivered the college’s commencement address, before earning several prestigious writing scholarships and fellowships — as well as an M.F.A. He is the national spokesperson for Campaign for Youth Justice; President Obama placed him on the Coordinating Council on Juvenile Justice and Delinquency Prevention. Today, he is a nationally recognized author working on his doctorate at Yale Law.
Betts’ story is America’s story. A modern Horatio Alger, he pulled himself up by his bootstraps. But recently, Connecticut’s Bar Examining Committee begged to differ. The members found that Betts’s 20-year-old conviction was sufficient to prove that he lacked “good moral character” and was unfit to practice law. The Committee’s decision was not just erroneous — it underscored why the bar should eliminate moral character tests.
Good moral character tests are a relatively recent innovation. The phrase is vague and reflects the definer’s prejudices, leading to discrimination and the wrongful rejection of bar applicants. And discriminate they did. By the 1920s, states created “moral fitness committees” that used mandatory interviews, character questionnaire and oversight measures to ferret out Jews, communists, southern and eastern European immigrants, women, ethnic minorities, cohabiters, divorcers and men who dared to fish without a license. These measures were anti-competitive to their core; the Old Guard hoped they would keep the profession solidly Republican, conservative in outlook, standard Protestant in faith and Old English in heritage. Indeed, Connecticut was at the forefront of this fight. In 1879, Nutmeggers placed a flat ban on bar admission for non-naturalized immigrants claiming that only American attorneys could properly sign “writs and subpoenas, administer oaths and take depositions” as court officers. This was naked nativism.
Even if one believes that a policy or institution conceived with a discriminatory purpose can come to serve legitimate ends, character tests do a horrendous job of identifying troublesome applicants. First, character assessments are based on past, not current conditions and assign minimal weight to forgiveness and redemption. Applicants with prior convictions who were denied admission to the bar have spent an average of 10 years out of prison. This statistic is significant because once a prisoner has served her time, she has repaid her debt to society.
Second, character tests are being used to protect the bar’s public image — not the public. One study found that applicants with prior convictions were 10 times as likely to win admission when the proceedings were unpublished than when they were published. The reason for the discrepancy? Aversion to negative press.
Third, an emphasis on criminal records disproportionately impacts certain racial groups and socioeconomic classes, discouraging ex-felons from engaging in meaningful work and heightening recidivism rates.
Fourth, the character test is ineffective and inefficient. Indeed, there is zero correlation between bar committee review and punishment in subsequent disciplinary proceedings. Moreover, character tests shrink the pool of available legal talent by raising the cost of entering the profession, which inflates attorney fees and decreases access to legal services — often for the most vulnerable demographic groups.
Finally, character tests use an overly simplistic multifactor balancing test to predict future conduct from past evidence – even though sociologists and criminologists have been unable to do so with more sophisticated metrics.
There is nothing “good” or “moral” about these assessments — and nowhere is this starker than with Yale’s very own Dwayne Betts.
Habib Olapade is a first-year student at Yale Law School. Contact him at firstname.lastname@example.org .