Both Cruel and Usual

A new book on criminal punishment exposes the responsibility of lawyers.

“Are you on any medication that would affect your comprehension or mental state?” asked the judge. 

“No.” Mr. Charles responded. 

We were fast approaching my least favorite part of the plea colloquy. 

“You understand that you are waiving your right to trial, your right to confront witnesses against you, to cross-examine those witnesses and to have your case heard before a jury?” 

“Yes,” said Mr. Charles, in a voice that had gone flat after three minutes of monotonous questioning.

“Did anybody offer you any promises in exchange for your plea of guilty, or did anyone threaten or coerce you into pleading guilty today?”

“Um, uhh…”

And there it was—the look. The same startled and confused look that I saw on every one of my clients’ faces during their first interaction with the criminal punishment system. No matter how much we talked about the plea process ahead of time, the reaction was always the same. I knew exactly what was going through Mr. Charles’ head: “What are you talking about? Of course someone promised me something, the prosecutor promised I would get probation and not jail time! Of course someone threatened me, the prosecutor threatened to put me in a cage for three years if I didn’t plead now!”

When Mr. Charles looked at me, I gave him a slight nod. “No,” he mumbled. But the judge was already moving on to the next question.

Somewhere between 94 and 97 percent of criminal cases end in plea agreements. As a result, much of criminal defense practice involves “negotiating” with prosecutors and then standing beside your client as they plead guilty to a crime. Under current law, pleas must be “knowing, voluntary, and intelligent.” When you plea, the judge asks you a series of questions that are, theoretically, supposed to ensure that you understand what a plea of guilty means, and that no one coerced you into making it. But this is just a legal formality. Every judge knows the statistics on plea agreements, and thus, is fully aware that promises and threats underpin almost every single guilty plea that comes before them. Thus plea agreements are a farce based on a lie: The judge demands that you swear you were not threatened or “promised” anything in exchange for a plea, when the entire “agreement” is a promise that you have accepted because of a threat.

Mr. Charles was completely correct, in that moment, to feel that he was threatened and coerced, that the brutish arm of the state had shoved him headlong into his plea. Legislatures, police, prosecutors, judges, court officers, jail guards, state and federal executives and a whole host of other people were the architects of Mr. Charles’ circumstances, and the circumstances of millions of other, disproportionately Black people who are bound up in our criminal punishment system. The decisions of these functionaries within the criminal punishment system fully circumscribed the “choices” that were available to Mr. Charles in the first place.

In Alec Karakatsanis’ new book of essays—Usual Cruelty: The Complicity of Lawyers in the Criminal Injustice System—these functionaries of the law are characterized as “punishment bureaucrats.” Karakatsanis avoids the euphemisms and circumspect language of most social and legal analysis of the criminal system. Stripped away are phrases like “criminal justice system,” “incarceration,” “detention,” and the normally operative assumption that the criminal system—if flawed—is generally aimed at noble goals. In its place you’ll find “criminal punishment system,” “human caging,” and an analysis that questions the purpose of the system itself. What’s left is a blunt book that reveals the inner workings of the criminal punishment system in all its harsh reality. (The book has a special focus on how lawyers operate within this system, but it’s not a book solely for lawyers, despite the fact that the cover, regrettably, looks like a badly-formatted legal brief.)

Karakatsanis opens his book with a scene in a New Orleans courtroom, where a man is accused of a crime and ordered held on a $20,000 bail. Because he can’t pay $20,000, the man will stay in jail until trial. That he can’t afford $20,000 is no surprise: About 40 percent of American families can’t come up with even $400 in an emergency, much less $20,000. Most of the criminal punishment system operates to the heavy disadvantage of poor people. If you only have money for silly things like food and shelter you likely won’t be able to pay off a ticket (and the resulting unpaid debt can get you put in prison), let alone your bail. Hundreds of thousands of people are held in cages simply because they can’t “make bail.” That means they are held pre-trial, convicted of nothing, just because they can’t pay the state the amount set by the court. 

This wealth-determinate caging system also has harsh downstream consequences beyond the fact of being in jail itself. If you’re imprisoned because you couldn’t make bail, you’re likely to lose your job because you don’t show up, and you’re likely to lose your house because you can’t pay rent. You may lose custody of your kids since you can’t care for them effectively behind bars. Pre-trial detention also results in consequences for the criminal case itself. Those locked up pre-trial are more likely to accept a plea agreement (even a bad one) just to get out of jail, and statistics demonstrate that those held pre-trial, as opposed to those who are released, are more likely to be convicted. It should be troubling to anyone that cares about justice that wealth (and race) is a major determinant of a person’s outcomes in the criminal system. 

I’ve actually found discussions of bail to be a good entry point for talking about the cruelty of the criminal punishment system. It’s just so intuitively unjust. “That’s crazy!” most people say upon learning that you can be held for ransom by the state, potentially for years, before having a trial. “That must be illegal!” Most lawyers would scoff at this last statement, because bail is just so central to the criminal system and its existence seems like an immutable fact of nature. Fortunately, Karakatsanis takes a different approach, questioning every part of the system.

After describing the scene in the New Orleans courtroom, Karakatsanis goes on to lay out both the legal and moral problems with a wealth-determinate system. In addressing both the law itself and justice as a moral principle, Karakatsanis is doing something fairly unique, grounding his cogent legal arguments in the real-world operations of the criminal system. You’d think this would be the way all legal arguments work. You would be wrong.

Why should people who are not lawyers care about Karakatsanis’ legal argument? For the same reason that people outside of the legal field know the phrases “separate but equal” or that people have things called Miranda rights. For better or worse (and it’s worse), law governs much of the way we live and particularly our interactions with the state. It also often shapes collective narratives about what is and is not “just.” For that reason it’s vital that everyone, including lawyers, should be forced to confront the criminal system for what it is. Any time someone thinks “wait, that’s the law? That’s crazy!” it should be a hint that lawyers have not done enough to challenge a particular set of unjust rules. 

It’s therefore worthwhile to understand how lawyers think about the system, what they value, and what they ignore. Those values have outsized impacts and have too long been abdicated by the public in the hopes that “lawyers have it covered.” The first essay in Usual Cruelty, titled “The Punishment Bureaucracy,” discusses the web of people and decisions that comprise our current criminal punishment system. Karakatsanis’ first focus is the bureaucracy itself. Although we often think of systems as impersonal, it’s important to remember that individual people—cops, prosecutors, judges, legislatures, bail bondsman, etc—make decisions every day that impact the functioning and continued existence of the system. Decisions such as what to make illegal, how to distribute police in a city, who to arrest, how to treat arrestees, what to prosecute, what charges to bring, what plea deals to offer, what bail to request, what bail to set, what legal arguments are viable, what sentences are just—these are all a function of choices, which, although they nominally operate against a legal background, are largely within the discretion of the leading bureaucrats within each piece of the system. 

Karakatsanis’ second focus is on change—how are people proposing to change the system and what must we avoid in order to not keep perpetuating the same disaster that currently exists? The essay has nothing but withering criticism for “reformers” like Preet Bharara and Kamala Harris, nor should it. These are people who, after making their names tossing people in cages and expanding the criminal systems as punishment bureaucrats, now seek to be leaders of the new reform movement. It’s not just that they’re hypocritical, but that their reforms aren’t reforms at all. It’s not “reform” to propose things like more jails, more GPS tracking, more resources to police departments, and the criminalization of new behaviors. Even when “reformers” propose something that seemingly links up with an actual good policy, it becomes suspect.

Recently, “reformers” have jumped on board with eliminating cash bail, in an effort to eliminate the wealth determinate pre-trial detention system described above. But they propose replacing this system with “risk assessment tools”—a.k.a., algorithms that “predict” someone’s likelihood to commit more crimes while awaiting trial. There are immediate and obvious problems with these tools: For one, they tend to be racist and reproduce the same problems as the old system. For example, one metric they use to predict future crime is past arrests, and if Black people are arrested at a disproportionate rate (they are), then the risk-measurement algorithm will be biased against them even when it’s technically race-neutral. 

But even if algorithms corrected for their bias, and even if they were “fairer” than bail, they would still be unjust. There is a difference between wanting the system to appear less unjust and wanting fewer people in jail overall. The “reformers” would be fine if the algorithms told them to detain the same amount of people, just for slightly different reasons. Actual reformers would not be. We want to limit the reach of the American carceral state.

When it comes to the criminal punishment system, we are at a fork in the road. We will address the national tragedy of mass incarceration, but whether we address it with more jail, or with superficial fixes, or with something much more revolutionary is still up in the air. If we leave the system to Preet Bharara or Kamala Harris then we do nothing to address the underlying logic of the carceral state, and we abandon our fellow human beings to years more in cages while we pat ourselves on the back for making small superficial changes. 

Karakatsanis’ first essay correctly points out that “reform” isn’t some minor misstep on the road to change, it’s an embrace of the values and systems that got us where we are today. He prompts us to attack the fundamental assumptions of our system and to address criminal questions anew, and from a human perspective. Why is it ok for someone to be held in a cage while they are innocent (or guilty for that matter)? Why is selling a certain type of plant that makes people feel good a criminal offense, while selling another is not only fine, but the base of an entire vast industry? Why are some things crimes and others acceptable behavior, such as selling loose cigarettes versus pushing subprime mortgages? 

The second essay in the collection, “Human Lawyer,” addresses the cascading impacts of the criminal legal system on the lives of its victims—from being caged to losing your house, from losing your job to losing custody of your child—and illustrates how such cruelty quickly becomes banal for lawyers who work within, and thus participate in, this system. The fact that lawyers often don’t care on a personal level—and are encouraged by the profession not to care—plays a big role in removing them from culpability for their actions, and has harmful effects on people caught up in the system. Shedding light on everyday cruelty and lawyers’ frequent indifference to it is necessary so that the public may more readily hold the legal profession to account. 

Karakatsanis is harshly critical of prosecutors and judges, but “Human Lawyer” also addresses the role of defense attorneys within a system that crushes the lives of their clients. It explicates how the legal education we receive reifies some of our worst impulses, drawing on Karakatsanis’ own time at Harvard Law School and his experience working in Boston courts as a student attorney. I’ve assigned this essay (a version of which was published before the book) in every law school class I’ve taught. At its core, the essay is a call to retain humanity in doing legal work, and goes through just how that humanity is robbed from you, not always exclusively by people who are overtly cruel and selfish, but also by “well-meaning” people in legal education and other legal institutions.  It shines the spotlight directly on (for example) well-meaning students at Harvard who cry about poverty and then go work at a corporate firm, all the time insisting that no one has the right to judge them for their choice. “Human Lawyer” runs along the same lines as my favorite Duncan Kennedy speech, which argues for the responsibility of lawyers for the justice of the causes they advocate, stating very plainly that lawyers are culpable for what they choose to do with their careers, who they choose to prosecute and who they choose to defend, and that the institutional culture that tries to persuade lawyers otherwise is vile. Karakatsanis approaches these same issues from the perspective of a law student moving through their legal education, showing how each piece of the structure of legal education narrows your humanity. I don’t think that there’s a single piece of writing that could inoculate a law student against legal culture, but this essay is surely a necessary component of the vaccine.

The final essay, “The Failure of American Lawyers,” is in some sense the big brother of the previous piece. It goes deeper into lawyers’  responsibility for the evil outcomes of the legal system. The criminal system is compartmentalized, as are the lawyers who function within it. Attorneys—and most everyone else—don’t think about or engage with the thousands of humans who are caged every day. What would it look like if every human in a cage caused us the pain that it should? Lawyers in particular have failed, Karakatsanis says, “to confront the suffering we inflict” and have failed to address the gulf between how we talk about society and how it actually is. 

While I was in law school, I did a “know your rights” training for a youth group. “The police can’t search your bag without probable cause,” I told the group. “That’s not true,” said one of the young men in the audience. He was right. Although I had correctly stated the law, he had correctly described reality. Because there’s no actual penalty for an officer who makes a bad search, an officer really can search you any time they want, as long as they can retroactively invent some justification later for “probable cause.” At worst, the evidence they uncover—or claim to have uncovered—might get suppressed in a later criminal case, but even then someone might be bullied into a plea deal before they get the chance to force the officer to fabricate a legally plausible motive. 

When lawyers speak about the law as though what they read in textbooks is what literally happens on the street, big problems arise: They give misleading information to their clients and to the public, and they pretend the law is fair when it isn’t. Lawyers may like to pretend that they live in a system with process and reason and evidence, but that’s not the real world of the criminal injustice system. In reality, there’s much less distinction between incarceration and ordinary kidnapping. The only important distinction is that one act is authorized by the state while the other is not. That should bother us a lot more than it seems to.

Usual Cruelty deserves to join the shortlist of books that have meaningfully changed our conversation about criminal punishment over the past 10 years, such as The New Jim Crow, Just Mercy, Locking Up Our Own, Misdemeanorland, and Chokehold. It paints the most accurate picture I have ever seen of the criminal punishment system and the way lawyers operate in and around it. We need to stop letting lawyers off the hook for their role in injustice, and not be swayed by trendy “reformers” who just seek to slap a coat of paint on a rotten wall. We should be disturbed by what goes on in jails, courts, and law schools. We should question their necessity. Most importantly, we should act like human beings, and realize that we participate in a system that crushes other human beings.

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