The Punishment Bureaucracy Has Nothing to Do With Justice

A new book argues that the “rule of law” is unjust. As a former prosecutor, I agree.

An assembly line of inmates going into a prison.
Photo illustration by Slate. Images by 4x6/iStock/Getty Images Plus and leonardo255/iStock/Getty Images Plus.

An Alabama mother was shackled in front of her children for failing to pay parking tickets and forced to clean the courthouse bathrooms to earn her freedom. A disabled man in Missouri was jailed in a moldy cell without access to his medications because he could not afford to pay a fine.

These experiences are not flukes, but the intended effects of choices our society has made, argues civil rights attorney Alec Karakatsanis in his passionate new book, Usual Cruelty. “The decision to make something punishable by human caging authorizes the government to treat people in ways that otherwise would be abhorrent,” he observes.

Usual Cruelty calls upon lawyers to align the values of American law with its practice to end our system of mass incarceration. Those decisions are perpetuated by the “punishment bureaucracy.” This phrase, aptly named by the author, characterizes a set of interlocking systems, many operated by lawyers, that define what and who is “criminal” and when and how severely to penalize those people—all the while obscuring those choices under the guise of neutrality and objectivity. Having served as both a public defender and a civil rights lawyer, Karakatsanis has witnessed some of the most troubling aspects of the system, and his book poetically details what he’s seen through the stories of his clients. To Karakatsanis, meaningful change will not come from “reform” of the mechanisms that allow such treatment, but from their complete transformation.

Bringing these issues to the fore has never been more necessary. In October, despite record low levels of violent crime, President Donald Trump announced a sweeping crackdown on crime he’s nicknamed “the surge.” Decades of this manner of rhetoric, and the vengeance it evokes, has fostered a legal culture that subjects Karakatsanis’ clients and millions of others to dehumanizing conditions.

The book’s subtitle, “The Complicity of Lawyers in the Criminal Injustice System” (emphasis mine), gets at the heart of Karakatsanis’ argument: The law has been used by the powerful as a tool to dominate the powerless, leading to the outrageous state of our mass punishment system. This concept is not new, but Usual Cruelty lays out a compelling and damning argument that lawyers play a central role in rendering the criminal legal system unjust.

Karakatsanis describes the banality with which the wheels of law enforcement, the courts, and prison and supervision agencies operate because they must “go along with unspeakable things, … become desensitized to the pain we cause, and to live our lives without the intellectual and moral rigor that should have prevented so much senseless suffering of powerless people in the name of ‘law enforcement.’ ” As a former prosecutor myself, I relate to criminal lawyers—prosecutors, in particular—who may prefer not to engage with the notion that even the most well-meaning criminal law actors cause harm by virtue of their participation in these systems. I would urge my colleagues nationwide to reconsider the instinct to reject this book’s indictment of our work in the system.

The book features three essays drafted at different moments in Karakatsanis’ decade as a lawyer. The first in the book, written earlier this year, challenges the widely held assumption that the “rule of law” is a neutral force while articulating how this myth justifies the perpetuation of powerful inequities. To make this point, Usual Cruelty enumerates cases where discretion has been used to excuse certain violations of the “rule of law,” ranging from companies’ violations of the Clean Water Act to President Barack Obama’s ordering of drone strikes that killed civilians. Simultaneously, the “rule of law” has been cited to punish offenses like drug use and wagering on games of dice in public. Karakatsanis is not interested in debating the merits of the decisions in each case and points to them simply to argue that political preferences, rather than fundamental truths, underlie the decisions about what conduct is ultimately prosecuted. This acknowledgment is crucial for change.

Next, Karakatsanis turns to the people in charge of making these decisions. He identifies ways in which major reform-minded criminal justice figures of our era, in his view, have fueled the punishment bureaucracy. “Each of them operated the machinery that abused the bodies and minds of people who lack power in our society without any evidence that the misery they were inflicting was necessary to make our society a better place,” he writes. These examples are employed not to criticize individuals, but to underscore the normalization of an apparatus of punishment that processes people through a dehumanizing cycle of arrest to court appearances to incarceration.

Like many of his defense bar and activist colleagues, Karakatsanis identifies deep fault with American prosecutors in particular. Iconic scholars like Paul Butler and Angela J. Davis have long critiqued the excesses of prosecutorial discretion and the resulting devastation of communities of color. Recent books by NYU Law professor Rachel Barkow and Slate contributor Emily Bazelon call on a new movement of “progressive prosecutors” to affirmatively address these systemic problems. Karakatsanis is in good company in relying on a popular overstatement: that prosecutors “have nearly unlimited authority to decide who to charge with a crime and how harsh a punishment to pursue for it.” While prosecutors have significant charging discretion, that varies across jurisdictions and is still—and rightly—constrained by external factors like statutory schemes. Prosecutors certainly have the discretion to choose what crimes to ignore, but this is hardly the same as “unlimited authority.” A prosecutor’s choices are confined to the world of what and who the jurisdiction’s laws define as criminal. To be sure, those laws are embedded with bias, and many crimes go unpunished because of the demographic or privilege of the person who commits them. But an overemphasis on prosecutors’ purported “nearly unlimited authority” distracts from the urgent need to address all areas of the system through measures like changes in policing and increased investment in public defenders.

Karakatsanis is skeptical of the view among some criminal justice reformers that prosecutorial change is the key to systemic change. Karakatsanis finds fault with several recently elected “progressive prosecutors” in turn. “It is remarkable how little these prosecutors have tried to do so far considering that we would need eighty percent reductions in human caging to return to historical United States levels and to those of other comparable countries,” he writes. Some of these criticisms are simply unfair: He condemns newly elected Philadelphia D.A. Larry Krasner for not publishing data, for example, less than a year after assuming office to prove he is being more lenient than his predecessor.

This daunting task requires transforming the daily practice of 300 lawyers and collecting and converting huge numbers of paper case files to digital—all before the work of aggregation and analysis can even begin. Karakatsanis similarly criticizes Cook County States’ Attorney Kim Foxx—whom he acknowledges, in a footnote, has led the nation in data transparency—pointing to a 1.3 percent increase in felony prosecutions during her second year in office. That criticism stands in contrast to a recent analysis by the Marshall Project, the Pudding, and the Chicago Reporter that found Foxx declined to prosecute 5,000 felony cases her predecessor would have prosecuted. In any event, these one-off complaints about progressive prosecutors hardly undermine the potential utility of their movement to some of the very goals to which Karakatsanis aspires.

Karakatsanis does concede that the progressive prosecutor movement has the power to reduce harm, change the public narrative, and mobilize people. Still, he is brief in crediting of much of the work that some modern prosecutors have accomplished. In the past five years, major metropolitan prosecutors’ offices have developed evidence-based, trauma-informed processes to provide treatment rather than punishment; partnered with community groups to provide restorative justice options to cases that would have previously resulted in incarceration; opened their case files to academics and researchers to help identify racial disparities and develop policy interventions to prevent them. The prosecutors working on these changes are just part of a larger reform movement, to be sure, and Karakatsanis rightly describes this work as “a stepping stone to much more significant structural change.”

A major highlight of Karakatsanis’ critique is his identification of some “common mistakes” by reformers that will impede the transformation necessary to end mass incarceration: presuming that criminal justice operates in a silo and can be fixed without also tackling housing, poverty and health care; accepting that social ills must be addressed through punishment; retaining power and control within law enforcement; failing to recognize historic harms; expanding rather than shrinking the system; and failing to shift resources from inside the system to communities. We would all be well-served to heed these cautions as the momentum toward change builds.

The book’s second essay, written during and shortly after his last year of law school, reflects on “the human lawyer.” This is the author at his more forgiving, seeing the frailty and imperfection of the people who operate the legal system. Part creative writing piece, part tongue-in-cheek commentary on the conventions of law schools and law reviews, this essay calls for recognition of the humanity of people subjected to the system, and those who make it run.

The final essay, written after Karakatsanis transitioned from his role as a public defender to civil rights lawyer, explains how the “human lawyer” of the second chapter becomes complicit in the “punishment bureaucracy” of the first. He maintains that as lawyers we have failed at precisely what we were trained to do: “take fundamental shared values and help society translate these principles into results through rigorous argument based on evidence and logic.” As others have before, he points to the increasing numbers of studies finding no link between incarceration and decrease in violent crime. The tension lies in the fact that, “to put a person in prison, we have to prove by overwhelming evidence that she merits punishment in a narrow factual sense; in order to put millions of people in prison, we do not need to show that doing so would do any good.”

This blunt articulation of a typically latent contradiction may make many lawyers uncomfortable. But Karakatsanis argues that lawyers, who are trained to gather evidence and follow it to the rational conclusion, are also in the best position to see this mounting body of evidence and put a stop to it. To this end, he calls for a massive redistribution of legal labor to realign the practice of law with our values. Whether it is native optimism or lawyerly bias, I share his hope that it is possible.

There can be no doubt that prosecutors will have vital role to play in the slow, messy transformation of a punishment bureaucracy into a true justice system. One of the “progressive prosecutors” with whom Karakatsanis finds fault recently remarked to me, “I go to work every day knowing that I am committing harm by being part of the system. But I am going to keep going to work every day as long as I believe I am doing less harm than whoever else would be in my seat.” I suspect that Karakatsanis would, too, and we are all the luckier for the fact that he keeps working and calling on the rest to be self-critical in our own work. Usual Cruelty’s exposition of “the chasm between the law as it is written and the law as it is lived” should be familiar to all lawyers, as should the pursuit of eliminating that chasm.