The Criminal Justice System Is Not Broken. It’s Doing What It Was Designed to Do.

Alec Karakatsanis’s “Usual Cruelty: The Complicity of Lawyers in the Criminal Injustice System” should be assigned reading for every first-year law student. Published last month by The New Press, the book is an unusually blunt takedown of a system the author never once refers to as a criminal “justice” system. Litigated with the intellectual vigor of someone who has won a number of landmark fights in federal court, “Usual Cruelty” clearly lays out a case for why our criminal legal system is not broken, but doing exactly what it was designed to do.

At a time when talk of justice reform has become mainstream but risks becoming hollow, and phrases like “progressive prosecutor” contribute to the deception that we are, in fact, making progress, Karakatsanis is clear-eyed about the bigger picture. But while “Usual Cruelty” is ultimately an abolitionist book that calls on people to imagine a world with fewer laws and in which jails and prisons aren’t the default response to all social problems, Karakatsanis is also keenly aware of how lawyers can use the law’s tools to fight the law’s harm. At Civil Rights Corps, the nonprofit he founded, Karakatsanis takes on cases challenging systemic injustices in the legal system — like cash bail and the systems of fines and fees that keep poor people in jail — which he says have become so “normalized and entrenched” they barely give us pause.

This interview was edited for length and clarity.

Who is this book for?

Much of the book is written for people who don’t know a lot about our criminal punishment bureaucracy and who generally care about issues of social justice, but don’t know much about how the criminal system works, and especially all the pain that it constantly inflicts for no good reason. But it also has a lot of deep analysis and reflection for people who have been working in the system, whether they’re public defenders or social workers or prosecutors or judges.

It’s really meant to touch anyone who’s worked in the system and get them to reevaluate, come to the system with fresh eyes and see, here’s what we’ve been doing to people and their families and their bodies. Let’s ask ourselves some really hard questions about why we’ve been inflicting so much pain. This book is also meant to be an acknowledgement of the real failure of lawyers in our vision, in our understanding of politics, our understanding of organizing, our understanding of power, the way that we’ve tried to use the legal system to change what is really a problem of capitalism and white supremacy in power. And it’s meant to reach out and say we actually need a really different approach: a mass power-building movement that lawyers should not be leading.

Some people go to law school with these grand ideas about changing the world. But your book makes a strong case that it’s not through lawyering that things are going to change.

The American legal system has never been an institution of radical social change. To the contrary, it has been an instrument of ruling class oppression. The legal system, from its founding, was about preserving distributions of wealth and property and white supremacy. If you go back and read old Supreme Court cases, you’ll see in every era the Supreme Court and the federal courts and the state courts are reproducing the sort of power dynamics of that era into what’s called legal decision-making, and passing it off as legal reasoning.

We need to build a movement that changes the power dynamics so that our society demands that our legal system create different rules. The best example of this might be Brown v. Board of Education, maybe the most celebrated legal decision in American Supreme Court history. Sixty years after Brown, you have schools that are just as segregated, if not more segregated, in some parts of the country than they were before Brown. Why? Because if you don’t attack the underlying systems of oppression that lead to a problem, a court ruling isn’t going to solve them.

A contrary example might be same-sex marriage. Very smart lawyers brought those cases 40 years ago, and they essentially lost everywhere, including in the U.S. Supreme Court. Then years after that, other lawyers, and actually some of the same lawyers, using the same words, challenged same-sex marriage bans again. This time, they prevailed. It wasn’t because the 14th Amendment changed, or because they became better lawyers. It was because there had been a movement in our society that changed the way we think about same-sex marriage. What we in the criminal system need to understand is that we need to be part of a social movement that changes the way we think about human caging. And until we are part of that movement, I don’t suspect that the courts are fundamentally going to alter this architecture of mass incarceration.

You write about the need for lawyers to remain “human” and to find creative ways to re-sensitize themselves. How do you stay human when working in a system that is designed to dehumanize daily, and on a mass scale?

We often find ourselves using the language of a bureaucracy as opposed to the language of humanity when we’re in court. The things that we write, the arguments that we make, it’s almost like reading from police reports; we use words like “suspect,” “defendant.” And we use propagandistic terms like the “Department of Justice” or the “criminal justice system.” We even use the word “hold” to describe someone who’s in a cage, which is such a strange thing to say. You hold someone you love; holding is a term of care. Or we use terms like “law enforcement,” which make it seem like we enforce all laws against all people, when in fact law enforcement in this country just enforces some laws against some people. The language that we use is really important.

“We use the word ‘hold’ to describe someone who’s in a cage, which is such a strange thing to say.”

As a lawyer, you can also change the narratives that are presented in a courtroom. I would always ask my clients to be unshackled while in court, and I would ask the U.S. marshals to allow my clients’ children to come hug them before sentencing. Little acts like these may not be significant in the broader sense, in the sense that they’re not taking down capitalism or white supremacy, but they change the way that this mass assembly-line bureaucracy is able to process human beings: It slows it down, it makes everybody a little bit more sensitized to the cruelty that they’re about to inflict on a child or on a parent, on a human being.

I found that the sentences started to get lower when we did those things. I think lawyers can be doing this throughout every aspect of a case: help to create space for their clients to tell their stories. Our punishment bureaucracy is only able to do what it’s doing because the pain that it’s causing has not been sufficiently explored in the popular consciousness.

We prosecute and incarcerate so many people that it becomes impossible to give each a fair process, so we end up with shortcuts like the mass plea bargaining system. You write that we created a system that would collapse were it to offer “too much justice.”

Anyone who observes court in the U.S. or works in the system understands that there is simply no way to process two million human beings from their families, homes, jobs, communities and into cages without coming up with shortcuts at every single step in the process. It’s just a really significant bureaucratic achievement to transfer that many people and their bodies and their lives into government-run cages. And to do that, the system basically has to ignore the main constitutional rights that are provided for in the Bill of Rights, because those documents were not written with a world of mass incarceration in mind. In fact, they were written precisely to avoid mass human caging.

Alec Karakatsanis.

You write about defendants appearing in court in Roxbury being made to stand behind glass cages — and people only realizing how dehumanizing that is when a bunch of white baseball fans were arrested after the Red Sox won the World Series. Do we tolerate the cruelty of the system because of the people it usually affects?  

There is no way that much of what happens in the punishment bureaucracy would be tolerated if it were happening to people who looked different or had more power. The idea of drug laws being enforced on Yale’s campus, for example, in the same way that they are enforced down the street in the rest of New Haven would be laughable. And this goes for virtually any law you can think of. The way that law is enforced reflects distributions of power in our society. It’s the same way that people are routinely arrested and jailed for street gambling, but it’s totally acceptable to gamble over international currencies and global supply of wheat, even though gambling over the global supply of wheat has caused starvation for tens of millions of people. These same activities, depending on who’s doing them, are seen as morally culpable or morally praiseworthy, even.

I think even those who don’t work closely with the criminal justice system have some sense, by now, that it actually doesn’t have much to do with justice. Why is it that ideas like “the rule of law” and “justice” itself continue to wield incredible power?

I think that there are very powerful forces in our society that benefit from people having faith in what’s thought of as “the rule of law.” I always use that term in quotes because it’s a joke. Those forces have invested a great deal into a kind of propaganda about what our legal system is about. We’re told that our legal system is about public safety and human flourishing, but if you think that our legal system is really about creating a society of equality and justice and liberty and public safety, all you have to do is look around to understand that it’s failing miserably at that. That’s why you hear so many people, from all over the spectrum, saying the criminal justice system is “broken.”

But it’s only broken if you think that those are its purposes. If you actually think that its purpose is controlling certain populations, oppressing certain people, conserving the hierarchies of wealth and power, then it’s actually functioning very well. And the people who’ve been running our criminal legal system for decades aren’t stupid. They weren’t trying to do one thing but woefully failed, they were trying to do what the system has been doing, which is to keep certain people controlled.

Which brings me to the question of criminal justice “reform.” What is wrong with criminal justice reform?

I think we are at a very dangerous moment in what’s called the criminal justice reform movement. There is some popular energy, meaningful energy, to change the criminal punishment system, and the people who created and profited from the punishment bureaucracy understand that and they’re trying to co-op that reform. What’s at stake now is whether we will actually make big changes to dismantle mass incarceration, or whether we’ll make little tiny tweaks that curb off some of its most grotesque flourishes but preserve the architecture of the punishment bureaucracy and of mass human caging.

There are a lot of people with a lot at stake in this, whether it’s police and correctional unions or prosecutors and the elite class that benefits from keeping people controlled, the private companies at every stage of the process — from those that make all of the handcuffs and the Tasers and the guns to the private probation companies, the bail bond companies, the private prison companies, all of the companies that contract for health care and telephones and video calling in jails. And of course, all of the defense lawyers and judges and probation officers. It’s a massive bureaucracy, and what do bureaucracies do? They try to expand and preserve themselves.

I’m really interested in reorienting our discussion about what our criminal punishment system should look like to the question of whether we should have one, and whether it should look anything like what we have now, and how do we build the power that’s necessary to demand that our society do something drastically different.

Can an abolitionist approach and a reformist approach coexist? What do you make of the whole “progressive prosecutor” moment, for instance?

I’m all for reducing the pain that our current system has caused. Many of the cases that I work on can only be characterized as incremental: We win a case in Houston, and we get 12,000 people out of jail. But there are still tens of thousands of people being jailed every year in Houston; it’s not like we’ve abolished the punishment bureaucracy there. All the work we do, even the most successful work, is in a sense incremental.

I think the real question is, is there a theory for how the incremental work that you’re doing is part of a broader movement for much more radical change? If you’re just doing incremental work to do incremental work, and if that incremental work sucks energy out of a movement, or isn’t done in strategic alignment with a movement and just stops there, then that is troubling. But if it’s part of a strategy for actually building power step after step and each increment is actually building more power for the next fight, then I think it’s worth doing.

Is the reform that you’re proposing giving more resources to the punishment bureaucracy, or is it taking resources from the punishment bureaucracy and giving them to communities? That’s why, for example, you always need to oppose hiring more police officers, giving them more money for body cameras, increasing the budgets even of “progressive” prosecutor offices. We need to shrink all of these systems, and we need to invest in noncarceral, community-based mutual aid and empowerment solutions. The kinds of reforms that are offered by most punishment bureaucrats all over the country are mistaken reforms.

I think the reason abolition sounds so strange to many people is that those people are envisioning a society that looks exactly like our current society, just with no police and prisons and jails — and that does seem ridiculous because our society creates so much desperation and violence. But in a society that is tackling things like white supremacy, economic deprivation, toxic masculinity, and that is providing connections between people, and where communities are responsible for each other, I actually don’t think it would be weird at all. You wouldn’t even need the things that we now think of as elemental parts of our society, like the local jail.