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Usual Cruelty — The Complicity of Lawyers in the Criminal Injustice System, by Alec Karakatsanis. The New Press, New York & London, 2019.

Usual Cruelty

I have always believed that punishment should be directly proportional to status, the more you have, the more you should get. This belief is based on the grounds that those who enjoy high status have a great responsibility to others. Perhaps this feeling derived from seeing a cartoon in the New Yorker as a teenager, in which the client sits across the desk from the lawyer who says, “and how much justice can you afford.”

Of course the truth is the other way around – poor African-Americans bear the brunt of the suffering inflicted by the criminal justice system. So the title of this book intrigued me. Should lawmakers, prosecutors, defenders, district attorneys and judges be responsible for our mess of a criminal justice system?

Karakatsanis is the founder of the nonprofit Civil Rights Corps which, according to the dust jacket, successfully challenged the money bail system in Houston, resulting in 13,000 people being released from jail. This gives him a certain credibility.

The book consists of three essays:

  • The Punishment Bureaucracy;
  • The Human Lawyer; and
  • Policing, Mass Imprisonment, and the Failure of American Lawyers.

Karakatsanis gives a lot of examples to show that the selection of laws to be enforced can only be understood as racist persecution of the underclass.

“The government controls a huge ‘law enforcement’ budget. This money could pay for investigating every doctor who writes an improper prescription, chemical testing and surveillance to locate the sources of illegal pollution of local rivers and groundwater, wiretaps to investigate corruption in police departments, and audits to examine prosecutor offices for withholding favorable evidence. ‘Law enforcement’ could infiltrate boarding-school campuses to bust underage drinking and tobacco use or set up sting operations to fight widespread wage theft by employers. The choices that the bureaucracy makes involve direct tradeoffs, for example, from black families to corporate executives or from drug users to sexual abusers.”

“Wage theft by employers costs workers an estimated $50 billion per year. All robberies, burglaries, larcenies and motor vehicle thefts combined cost $14 billion per year. Prosecutors almost never enforce criminal wage theft laws.”

“The process of how norms evolve is critical to explaining why it seems reasonable to roll tanks through Ferguson, put handcuffs on twelve million people every year, and monitor the lives of tens of millions of people through electronic surveillance when our society, only a generation ago, would have perceived such government intrusions as an authoritarian revolution.”

“The police officer who choked Eric Garner to death was not indicted, but the man who filmed the murder on his cell phone, Ramsey Orta, was harassed, later arrested, prosecuted, and sent to prison for ostensibly unrelated crimes.”

“Many of the most prominent mass violations of American law were perpetrated or covered up by ‘law enforcement’ officers acting pursuant to official policies, including the Trail of Tears, the ethnic cleansing and forced deportation of more than a million Americans for suspected Mexican heritage, the internment of Japanese Americans, and the arming of right-wing Nicaraguan death squads and the perjury surrounding it. For much of this country’s history, black people were lynched – one of the main features of that ritual being that the openness of the public murder communicated that the ‘law enforcement’ apparatus would do nothing to ‘enforce’ criminal laws to protect black bodies and embraced racial terror.”

Karakatsanis gives dozens more illustrations of prosecutorial discretion designed to protect whites and elites.

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The choices made in law enforcement often have the effect of municipalities extracting revenue from those residents least able to pay.

“ ... the City of Ferguson had, for several years, averaged more than 3.6 arrest warrants per household, mostly because of warrants relating to unpaid debt from municipal tickets.”

“American police forces deliberately gorge on the excess of 750,000 marijuana-related arrests every year in order to profit from quotas, grants, military equipment, and civil forfeiture, while allowing hundreds of thousands of rape kits to sit untested for years in police warehouses.”

In America’s big courthouses, the prosecution of criminals is an assembly-line procedure. For more information on this assembly-line procedure, read Courtroom 302, by Steve Bogira who spent a year investigating the busiest felony courthouse in the country, Chicago's Cook County Criminal Courthouse.

“Although the law promises indigent defendants a zealous attorney, the system almost entirely ignores that right in practice. Every serious observer recognizes an indigent defense ‘crisis’ in which most of the millions of American criminal defendants each year receive barely any individualized representation at all, let alone a zealous investigation into and presentation of the questions relevant to their factual guilt and mitigation of punishment.”

When the court case is finished, the defendant is hurried off to prison. With 5% of the world’s population, the United States has 25% of the world’s prisoners, a statistic that brings shame to our country – shame that we mistreat and exploit so many incarcerated persons. U.S. jails and prisons are terrible, and worse, a convicted criminal loses many employment and citizen benefits for life (depending on the state).

Efforts to reform the criminal justice system are easily thwarted, especially if the “solution” can be translated into providing more budgetary funds to the criminal justice establishment to administer.

Karakatsanis lays the blame for the failure of our system of criminal justice on the lawyers.

“It is a considerable bureaucratic achievement to accomplish the transfer of thirteen million bodies each year from their homes and families and schools and communities into government boxes of concrete and metal. It is also a failure of the legal profession.”

“The failure of lawyers is a tragedy in two parts. First, there has been an intellectual failure of the profession to scrutinize the evidenciary and logical foundations of modern policing and mass human caging. Second, the profession has failed in everyday practice to ensure that the contemporary criminal legal system functions consistently with basic rights and values.”

Bob Pendleton

The annual budget of the criminal justice system grew from $36 billion in 1982 to $265 billion in 2012. If lawyers followed moral rules instead of careerist and political rules, Karakatsanis’ book shows that we could have a much better society. I’ve read Usual Cruelty: The Complicity of Lawyers in the Criminal Injustice System twice and I recommend it most highly.

In the audio piece below, listen to NPR's Michel Martin speak with attorney Alec Karakatsanis about his book, Usual Cruelty: The Complicity of Lawyers in the Criminal Injustice System.

Bob Pendleton

Usual Cruelty Complicity of Lawyers