This article is part of an Expert Analysis series of book reviews from judges.
Judge Bernice Donald
"Usual Cruelty: The Complicity of Lawyers in the Criminal Injustice System," a provocative new book by Alec Karakatsanis, shines a searing light on the anachronism that is the American criminal justice system. He exposes the fractures, pitfalls and minefields of a system where every actor is potentially complicit in the "injustice" outcome.
He convincingly acknowledges the outsize role that poverty and structural racism play in the evolution, interpretation and application of laws. Karakatsanis portrays the justice system as a mythical beast fed by the constant grinding and gorging on the bodies of poor, trapped individuals who are processed and served up by a system that strips them of humanity and consigns them to a caged existence.
Karakatsanis begins with the story of Sharnelle Mitchell, who was jailed for the failure to pay fines — an offense rooted in poverty. He describes Mitchell's shock and disbelief when she learned she would be jailed, separated from her children, be labeled a criminal and become a criminal justice statistic merely because she does not have the means to pay for her freedom. This offense is set against the backdrop that, as of 2019, 2.3 million people are in jails and prisons in the United States.
In the state of Texas, 524,628 people were jailed due to unpaid fines and fees in 2018 alone. In Ferguson, Missouri, an average of 3.6 arrest warrants were issued per household, most of which related to unpaid traffic tickets. African Americans are 10 times more likely to be jailed than white people in our nation's capital, Washington, D.C., exacting a huge toll on the resources of the city and unnecessarily shattering the lives of people living at the margin.
According to the Prison Policy Initiative's 2019 study, "Mass Incarceration: The Whole Pie," over 500,000 people are detained in local jails, largely due to an inability to pay bail. In other words, over half a million Americans are locked up due to poverty. Karakatsanis dubs the system the punishment bureaucracy. He argues that the sole function of modern criminal justice systems is to punish, noting there is no longer a pretense of rehabilitation. He then posits a more condemnatory function: "If the function of modern punishment system is to preserve racial and economic hierarchy through brutality and control, then the bureaucracy is performing well."
"Usual Cruelty: The Complicity of Lawyers in the Criminal Injustice System," by Alec Karakatsanis. The New Press. 208 pages.
I would have found these descriptions incredible had I not begun my early career as a county public defender and personally witnessed the environments the author vividly portrays. As I read the stories of the characters depicted in his work, I reflected on my own clients and the situations that brought them to the criminal justice system. They were all poor, struggling to eke out a living, burdened by race and class in a system that relegated them to a marginalized existence. I do not subscribe to any false notion that my clients were pure and blameless, but I do acknowledge that every person should be accorded dignity and respect and must be accorded the presumption of innocence when accused of a crime.
Karakatsanis paints a system that has turned the presumption of innocence on its head and argues that courts often treat the poor as guilty until proven innocent. The optimist in me hopes that he is wrong, but based on the results of innocence projects around the country, I must acknowledge that, at times, courts fail to deliver justice.
One factor that Karakatsanis reveals is the offensive and pernicious role that money bail plays in the current justice system, and how the budgets of defenders, prosecutors, courts and police forces benefit from cash bail, fines and fees levied on the poor. In my time as a defender and as a limited-jurisdiction criminal court judge, I became aware that people often plead guilty in order to get out of jail because they do not have the means to pay a $100, $200 or $500 bail. The urge to be free from the clutches of jails and prisons can often overcome the advice of even a well-meaning lawyer. Thus, while poverty can drown out will, the hope of temporary freedom can easily cloud judgment.
Karakatsanis asks the legitimate question: Have courts abandoned the constitutional detention/bail analysis and substituted a detention default which unfairly and consistently harms poor people? Under constitutional analysis, the default should be liberty and the inquiry should be: Is the person a danger to the community and likely to fail to appear and answer the charge? Karakatsanis argues that courts use the lens of the elite to assess the circumstances of the poor and arrive at the decision to impose money bail without any inquiry into the purpose that bail serves or the hardship it inflicts on the defendant and his or her family.
In other words, a person of means, regardless of guilt, can buy their way out of jail and live at liberty to assist the lawyer in their defense, while the poor defendant with no means is forced to languish, with no ability to meaningfully keep his family or life in tact. As Bryan Stevenson has stated, "We have a system of justice that treats you better if you're rich and guilty than if you're poor and innocent." Karakatsanis shares that sentiment and advocates for the abolition of money bail and the institution of meaningful bail reform.
Karakatsanis flatly dispels the notion that all persons are treated equally under the law. He observes that the poor in the criminal justice system are often powerless and voiceless. He delivers the message that justice is neither blind nor indifferent to race and ethnicity. He recites the plight of black and brown people in various courtrooms across the country and exposes trends that lead to consistent disparate outcomes for the poor and the nonpoor. Policymakers further these disparities through the formulation of laws and policies.
As a case in point, Karakatsanis notes the war on drugs as a long-running war on communities of color. Minorities and whites have roughly the same percentages of drug use in the United States, but, Karakatsanis argues, minorities are grossly overrepresented in the criminal justice system due to over-policing in communities of color. The statistics are startling. He argues that if the campuses of elite colleges and universities had over-policing to the same degree, it would ensnare large numbers of wealthy and middle-class white students, which would result in an immediate and loud public outcry followed by changed laws.
Karakatsanis then looks at the crack versus cocaine disparity of 100:1 in sentencing and characterizes it as a direct assault on black and brown people who have been convicted and sentenced to long terms in prison. He posits that there is no pharmacological difference between the two drugs — crack and powder cocaine — and credits the disparity to racism, noting that many of the individuals convicted of possession of small amounts of drugs are consigned to life in prison without the possibility of parole.[1]
He examines the type of policy choices that legislators and policymakers have embraced, being careful to avoid criminalizing the actions of the elite while exacting strong, harsh punishment for the crimes of the poor. Karakatsanis argues that the foreseeable and intentional activities by bankers and investors that led to the 2008 financial crisis, which resulted in billions of dollars in property loss, resulted in no prosecutions.
He contrasts that forgiveness of crime with the relentless arrest, prosecution and imprisonment of low-level street criminals. Why, he asks, do we penalize people for possessing small amounts of marijuana, or other scheduled drugs, but allow the tobacco industry to continue to produce and distribute substances that kill many more people? Many of these policy choices have their genesis in protecting wealth and social hierarchy, while serving a steady diet of marginalized people consigned to the human scrapheap.
Karakatsanis notes that today's justice system has transposed the power fulcrum from neutral judges to powerful prosecutors. He analyzes the actions of traditional prosecutors and "progressive prosecutors" and finds each lacking a real commitment to change. At most, he sees tweaks around the edges that will not alter the course of injustice in the modern criminal justice system.
"Few ideas have caused more harm in the criminal justice system than the belief that America is governed by a neutral 'rule of law,'" says Karakatsanis. He gives a graphic example of criminal justice: lived experiences juxtaposed against the facially neutral and often eloquent language of statutes, ordinances and rules of law. Legal academies (law schools) across the country produce students imbued with knowledge, idealism and a strong desire to fight injustice and preserve the social order and rule of law for all people.
He posits that this phenomenon is short-lived. Karakatsanis then explores the metamorphosis of the idealism of students to the lived experiences of lawyers battling in the justice system, often having lost sight of what brought them to the law. He particularly indicts those lawyers with the power to make change who choose instead to turn a blind eye to a world that they deny exists. Lawyers have the power to make change and willful blindness is not an option.
Charles Hamilton Houston, former NAACP lawyer and dean of the historic Howard University School of Law, famously said that "a lawyer is either a social engineer or a parasite on society." Karakatsanis lambasts lawyers for too often becoming parasites who support the passage of legislation criminalizing poverty, fail to advocate for adequate resources for defender offices and refuse to call out injustice.
Karakatsanis explores the criminal justice system through the lens of his experience and the life of his clients. He exudes anger and impatience. There will be much about his work that will invite vigorous criticism and parts that will invoke conspiracy theories, but parts of it are not in dispute: Mass incarceration is a public health, civil rights and human rights issue that must be urgently addressed. Our current model is not sustainable and every stakeholder must commit to change.
Karakatsanis reminds us that the U.S. Constitution is not a self-executing document; it takes people of good will to make the rights, promise and ideals of the Constitution real in the lives of people. I remind myself of the words attributed to Dr. Martin Luther King, "The arc of the moral universe is long, but it bends toward justice!" Readers must remember that the arc does not bend of its own volition, but because of the pressure applied by the hands of those persons unalterably committed to real justice.
Bernice B. Donald is a federal judge for the United States Court of Appeals for the Sixth Circuit. She was nominated by President Barack Obama and joined the court in 2011.
The opinions expressed are those of the author and do not necessarily reflect the views of Portfolio Media Inc. or any of its respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] During my time on the federal bench as a U.S. District Court judge, under the then-mandatory guidelines, I sentenced three young African-American men to life without parole for drug offenses. Two have since had their sentences commuted as a result of the Clemency Project 2014.
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