How to reimagine — not just reform — our criminal legal system
Posted July 2020
In his book, Usual Cruelty, civil-rights lawyer Alec Karakatsanis questions the underlying assumptions of our criminal legal system in hopes of spurring — not just reform — but a true reimagining of justice in the U.S.
In the last two months, following the murder of George Floyd at the hands of police officers in Minneapolis, Minnesota, a powerful reckoning — about systemic racism, police brutality, and White supremacy, spurred by the Black Lives Matter movement — has spread across the U.S. and around the world.
Alec Karakatsanis’ career has been laser-focused on fighting such systems of racial injustice in this country. As the founder and executive director of Civil Rights Corps, he uses advocacy, groundbreaking litigation, and storytelling to resensitize society to mass incarceration — or what he calls, “the irrational brutality of keeping humans in cages.”
Civil Rights Corps has fought more than 20 cases on money bail across the country, and is working to challenge systems of mass control and incarceration — including modern debtors’ prisons, the privatization of the criminal system, the militarization of police, and prosecutor misconduct.
Here, Karakatsanis, an Emerson Collective Dial Fellow, talks to Emerson Collective Senior Advisor Adam Frankel about his new book, Usual Cruelty: The Complicity of Lawyers in the Criminal Injustice System, which examines the roles of lawyers, judges, and police in perpetuating systemic injustices in the U.S.
In your book, you raise some fundamental questions about our society: what is a crime; what does the rule of law mean; how do we choose what laws are enforced? Can you talk a little bit about how you think about some of those fundamental questions?
I think there are at least two levels (that virtually everyone skips over) which I think are fundamental.
The first is, what does American society define as a crime? For example, throughout much of American history, certain types of gambling were thought to be crimes. Included in that was much of what we now call the modern derivatives trading market. In the 1990s, a lot of very wealthy bankers and others basically paid a lot of money to politicians to legalize certain types of trading.
Now, at the same time as all of that was made legal, other forms of casino-based gambling that used to be illegal, suddenly become legal, and people are making billions and billions of dollars all over the country on the activity that used to be called a crime. At the same time, poor people all over the country, in every major city, are being arrested every single year for rolling dice in the street and gambling. That's still called a crime. I don't use that example because it's the most important example, but I just say it's a very clear one, of how we make very intentional social decisions about what's called a crime and what isn't.
Another example, of course, is that the government has a list of substances that you're not allowed to possess and then, a list of penalties for possessing those substances, some of which are natural plants, some of which have been long used for centuries by certain communities in religious ceremonies and others. Over the last few years, we've seen the possession of the marijuana plant legalized, for example, even though tens of millions of human beings have been arrested and caged because of their possession of the marijuana plant over the last 40 years.
People have to understand that what is a crime is not, in any sense, objective. It's a product of culture, and it's a product of who has power in culture. The decision about what constitutes a crime is a very intentional one. Now, I'm not saying that any of these particular decisions is the wrong decision. I'm just urging people to understand that it is a decision. Laws have been designed by people who have power to further very particular social ends.
The second fundamental level is understanding, once it’s been decided what a crime is and isn't, we make very intentional decisions about where we look for those crimes, and who will be targeted when enforcing them. For example, it's a crime to commit tax evasion and insider trading, but that offense is hardly ever investigated at all. Or take environmental pollution. There are many, many criminal statutes that criminalize illegal pollution and dumping by large corporations, but hundreds of thousands of examples of this happen every single day, and it's very rarely prosecuted.
On the other hand, our system chooses to devote tens of billions of dollars to policing, surveilling, stopping, searching, arresting, and imprisoning Black people for things that are largely ignored when wealthy White people do them, like possessing drugs. Millions of Black children have been separated from their parents in the last few years because of marijuana possession.
These are choices that we're making about who we allow to get away with crime, and who we don't. This is a function of what I call “The Punishment Bureaucracy,” which is not about making objective arrest and prosecution decisions based on public health and safety, but political decisions, based on who has power in society, and who doesn't.
People have to understand that what is a crime is not, in any sense, objective. It's a product of culture, and it's a product of who has power in culture.
You write in the book that the criminal justice reform movement is superficial, deceptive, and dangerous. Why do you believe that? What would real change look like?
I think most of what now passes for "reform" in the criminal legal system discourse are things that would have almost no effect on the architecture of “The Punishment Bureaucracy,” but are designed to quell public clamoring for some serious change. Reforms can be deceptive in the sense that they're relying on people's ignorance about the system to make it look like they're important changes, but in fact, they aren't.
That's why I also think it's quite dangerous, because we are at a moment when there is real energy and momentum behind making some significant changes to the way the system functions, because of its effects on poor people and people of color, and because of its incredible cruelty and senselessness; and yet, the very people who created that system, and many of the large corporations who've been profiting off of it, have a lot to lose.
That's why, even though there's all this energy around criminal justice reform and mass incarceration, year after year, we've seen virtually no change at all in the number of people incarcerated in this country.
I think we have to understand that the kind of changes that are being proposed usually have a couple of features. The first feature is, it doesn't shrink the bureaucracy at all. It promotes changes like, for example, body cameras for police. This is a favorite reform of many punishment bureaucrats. It's passed off as a criminal justice reform to increase police accountability, but what it really means is hundreds of millions of dollars in technology going to police, and police are still in the same neighborhoods, oppressing the same people, arresting the same people, and enforcing the same kinds of offenses with cameras that the police themselves control.
Now, imagine what it would look like in our society if the millions of dollars we spend on policing were spent on mental health treatment and public health and teachers and poetry programs and art and music programs and after-school programs in the community. Police don't want to have that conversation — that conversation about actually investing the money we've been spending on punishment into money we could be spending on what every academic paper, every empirical set of research shows, which would actually lead to much less conflict and crime in our communities.
The second feature of many reforms offered by punishment bureaucrats is that they don't change who has control and power in the system. They don't want to give up decision-making and power and control to people in communities. One of the deciding features of significant reforms is taking away power from those institutional actors and returning that power, much more democratically, to the people in the communities that were most affected by those actors.
Reforms can be deceptive in the sense that they're relying on people's ignorance about the system to make it look like they're important changes, but in fact, they aren't.
One of the recurring themes in the book is the difference between the law as it is written and the law as it is lived. How do we narrow the gap between the two? Should that even be the goal of lawyers?
We have a lot of very beautiful legal principles. Some of them are even inscribed in marble on the top of the U.S. Supreme Court — equal justice under law, for example.
But for the entirety of American legal history, those kinds of words have been a cruel farce. Let's take one example. The law requires poor people, when they're accused of a crime, to be given a lawyer. Not only that, but it requires them to be given an effective lawyer, a zealous lawyer, a lawyer who fights for them. Everybody who works in the legal system knows that doesn't happen in almost any case for almost any poor person in this country who's accused of a crime.
Another example is, the law requires that jail and prison conditions be healthy and sanitary and not cruel. Of course, all throughout the country, prisons are dungeon-like places, where people are being sexually assaulted, physically beaten, contracting infectious diseases, deprived of the most basic human needs, kept in torturous solitary confinement (which much of the rest of the world considers is a crime of torture).
The main point is that our legal system gains legitimacy from being able to articulate that it has these really great values, and yet the way that those values are written in no way correlates to what's actually happening on the ground for poor people and people of color in our legal system. What many White people are now seeing with the video of the murder of George Floyd and the thousands of videos of rampant police brutality and violence, has been the everyday existence of Black communities for the entire history of American policing. The system has never realized its lofty values and has instead inflicted unspeakable cruelty on Black children, families, and communities.
One of the jobs of the lawyer, in my opinion, is to expose that gap, to constantly be attacking that gap, and to be trying to get people to understand why our society, in general, created and tolerates that gap, as a matter, both of propaganda and everyday practice.