The Appeal Podcast: When Criminal Justice Reform Preserves The Status Quo

There’s a growing acceptance of the idea that we need to overhaul our system of mass incarceration. But methods for doing so vary enormously—and some are causing more harm than good. Today’s guest, Civil Rights Corps founder Alec Karakatsanis, has written a new book, “Usual Cruelty,” that explores how even self-proclaimed “reformers” can be part of the problem and prevent true reform from taking hold.

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Adam Johnson: Hi, welcome to The Appeal. I’m your host Adam Johnson. This is a podcast on criminal justice reform, abolition and everything in between. Remember, you can always follow us at The Appeal magazine’s main Twitter and Facebook page and as always you can rate and subscribe to us on Apple Podcasts. 

The question of what constitutes morally useful reform and reform that simply legitimizes an existentially horrible institution is a question that has plagued activists since there has been activists and injustice. This is an especially urgent question for the legal community as so-called criminal justice reform becomes more and more mainstream. Today’s guest, founder of Civil Rights Corps, Alec Karakatsanis, written a new book, “Usual Cruelty,” exploring these big questions, calling on those in the legal profession and the public in general to think more critically about the role they play in our racist, brutal institution of mass incarceration. 

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Alec Karakatsanis: Punishment bureaucracy, now that it has metastasized, it wants to reproduce and expand itself and so many of the reforms that we’re seeing are actually potentially ways of expanding its reach and actually even further accomplishing the goals of controlling and surveilling and caging and punishing large swaths of our society.

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Adam: Alec, thank you so much for joining us on The Appeal.

Alec Karakatsanis: So happy to be here.

Adam: So you wrote a book which could sort of best be described as a prosecutor turning their eye to the legal profession as a sort of institutional apparatus within the broader discussion of criminal justice reform. You write that the quote “emerging ‘criminal justice reform’ consensus” — and you put “criminal justice reform” in scare quotes here, it’s worth noting — “is superficial and deceptive. It is superficial because most proposed ‘reforms’ would leave the United States as the greatest incarcerator in the world. It is deceptive because those who want to largely preserve the current punishment bureaucracy — by making just enough tweaks to protect its perceived legitimacy — must obfuscate the difference between changes that will transform the system and tweaks that will curb only its most grotesque flourishes.” Obviously this is a question we deal with on this show a lot, what is sort of real quote unquote “reform” and what is performed for reform sake or kind of to operate as a kind of a safety valve for power? Can you kind of explain what you meant by that and how you make a distinction between good reform and sort of reform that exists to reinforce the system as a sort of slightly woke-r version than its previous self?

Alec Karakatsanis: Sure. I wrote the book because I think we’re at a very dangerous time in what people call the criminal justice reform movement. I think you’ve got a lot of people now going around, people who are really punishment bureaucrats, people who constructed and perpetuated and profited from the massive criminal punishment bureaucracy that we have and you’ve got them going around the country saying things like ‘we need criminal justice reform, the system broken.’ I mean have you Adam heard anyone say the ‘criminal legal system is broken?’

Adam: Yes. I suppose a kind of normative appeal masking as a descriptive one. 

Alec Karakatsanis: Exactly, and I think I always find that term funny because it’s only broken if you think that its goal is to lead to a society of human flourishing, safety and wellness and equality. If you think that the goal of the punishment bureaucracy is something else, let’s say to control certain populations and to preserve certain distributions of wealth and power and racial supremacy, it’s actually functioning quite well.

Adam: Very well, yes.

Alec Karakatsanis: And it couldn’t be functioning better. And in fact it’s this real function that I really tried to describe in the book and try to explain how a lot of the reforms that are being pushed are actually minor tweaks that preserve the architecture of this bureaucracy as a tool of people in power and as a tool of wealth and really white supremacy while sort of curbing some of its most, as you said there, grotesque flourishes, that have led to a lot of popular consciousness that the system is actually maybe not doing what it’s telling us it’s doing. And so for me, there’s this battle going on now between people who actually want to fundamentally transform the way that our punishment system has been working and people who are very, very comfortable with both the punishment bureaucracy, and how how our society looks more generally, who want to kind of try to trick people into thinking that we’re making some really nice changes to the system. And so we don’t need to do too many other changes to the rest of our society. 

Adam: Right.

Alec Karakatsanis: And so I start from the premise that any large bureaucracy, the punishment bureaucracy, now that it has metastasized, it wants to reproduce and expand itself. And so many of the reforms that we’re seeing are actually potentially ways of expanding its reach and actually even further accomplishing the goals of controlling and surveilling and caging and punishing large swaths of our society. So just to take one example, let’s look at like the bail system. People are talking about bail like they’ve never talked about it before, you know, it seems like every podcast and every show and every jurisdiction has a bail reform plan, right? But if you look at actually what’s being proposed, if you look at what most judges and prosecutors and local politicians and state politicians are proposing, you’ll see that the kinds of reforms they’re proposing are actually not striking at what’s wrong with the money bail system. So we have a system where 400,000 human beings are detained right now on any given night, just because they can’t pay money bail. Many of the reforms that people are promoting would keep the same or even protect more people in jail cells prior to trial, but just not keep them there because they can’t pay. It would keep them there by calling them quote “dangerous” or quote “risk of flight” or something like that right? And then for the people that are getting out of jail now, by paying a premium to a for profit commercial bail bond company, under the reforms that are being pushed many places around the country, those people wouldn’t have to pay a bail bond company, they would have to pay an electronic monitoring company. So some of the same aggregations of wealth are now changing their business model from the person that sells you the bail bond to the person that drug tests you and gives an electronic monitor to you that you have to pay $12 a day for. And so you’ve got the same populations being controlled in the same ways, the same entities making the same amount of profit off of the same people and we’re just putting a different label on it. I think that’s a good example of what’s happening all across the sort of wide range of issue areas within the criminal punishment bureaucracy.

Adam: Yeah, no, and it’s meant to sort of speak directly to those people. Cause this is obviously, I mean the sort of tension between meaningful reform and reform that’s sort of just enough to validate the system itself is probably the greatest tension in any left-wing movement over the last 50 years. Right? Like how do you, how do you sort of change things without legitimizing the system or changing it in a sort of token kind of limited hangout way. And I know this is something that plagues people who are abolitionists in this space. I know specifically the Chicago Community Bond Fund deals with this a lot. This was an organization started by, I think it’s probably fair to say, committed abolitionists, many of the anarchists who tell you from the get go that ‘we do not want the bond fund to be here in X amount of years.’ Right? This has to be a political project and now you have new bond funds emerging that are like, some of them are startups and some of them are like sort of institutionalized and that sort of defeats the whole purpose of what a bond fund was supposed to do originally. It’s a very slippery slope and you talk about the slippery slope even with the label of progressive prosecutor and I find myself coming up against this a lot. We had Chesa Boudin on the show, who’s running for district attorney in San Francisco, and I asked him like, how do you define a progressive prosecutor versus the sort of label of progressive prosecutor? Like would it be fair to say we’re going to come up with some arbitrary percentage of the jail population we want to reduce it by? Like how do I define this? Because it does sort of, you begin to define things down to the point of they have no meaning and you write about this specifically in the context of Sally Yates, Eric Holder, Preet Bharara, who of course was behind the Bronx 120, who described themselves as “reformer reformers.” So I guess my question is can you explain why this slippery slope exists and how do some of these kind of liberal reform groups, help prop this up and to what extent do groups like The Appeal maybe even play into that? We describe on the show criminal justice reform to abolition. We sort of try to cover the whole range of things and I’m curious, in the interest of intellectual honesty, I want to talk about how we ourselves have elements of reformism.

Alec Karakatsanis: Sure. Of course. I think one thing you have to understand about most liberals, particularly those elites who have themselves worked in and benefited from the punishment bureaucracy, like some of the people that you’ve talked about, like Preet Bharara and Eric Holder and Sally Yates, and the institutions that sort of represent the same worldview, like The Brennan Center for example, to take one example I talk about in the book, is that fundamentally if you go to fancy conferences, they get grants and philanthropic funding to have those conferences and to have these discussions amongst themselves. And they talk about what they call “justice” at these conferences. And, but the thing you have to understand about them is that fundamentally they pretty much like the way that our society looks. They’re talking about making minor tweaks to the criminal legal system without making major transformations in let’s say the distribution of wealth or in the demolition of various hierarchies in our society or in white supremacy. Right? And so they’re able to have this view that our society is mostly pretty good. Yeah, we have some excesses in the criminal legal system and, and many of those have gone a little too far, but they are able to have this view because at the end of the day, it’s not their bodies and their lives and their families on the line. They’re not the ones being separated from their children and brutalized without sunlight and exercise or medical care in local cages. And so they understand very, very well that no matter what happens in the criminal legal system, they’re not gonna really be the ones who bear the brunt of it. And so they’re able to, in a really sort of detached way, talk abstractly about some of the worst aspects of the criminal legal system without confronting how their lifestyle, their power, the system that they’ve constructed in order to make sure that nobody can walk into their privately owned home and sleep there who doesn’t have shelter or nobody can take money that they earned from their high paying jobs. And so like all of the, sort of the basic fundamental aspects that make our society look the way that it looks, those people want to preserve all of that. And I think what they’ve done is they recognize that the existing criminal punishment bureaucracy is so out of step with its own stated goals that it’s really, in the public’s mind, losing legitimacy. And if that system loses legitimacy, I think they’re very worried about what kind of system might replace it. So I think what we’re seeing in a lot of these fancy conferences and among a lot of these punishments bureaucrats is a recognition that they have to do something to close the gap between the way our laws are written and the way they talk about our laws and their lofty goals and the way the law is lived and experienced by poor people of color because that gap is so intolerably wide right now that even ordinary people are coming around to saying, well wait a second, like this system isn’t doing anything like what it’s telling us it’s doing it. In fact, it seems to be serving all of these other goals. That’s very, very dangerous for people, you know, liberal elites who sort of control out of these systems and profit from them by the way that they can exclude people from their neighborhoods and exclude people from their wealth and their property and benefit from their own privileges. That’s the function that I think a lot of sort of mainstream and I want to also just also include organizations like the one that I work at Civil Rights Corps. I mean all of us are complicit in some way and all of us who are pursuing incremental reforms like Civil Rights Corps has been litigating cases all over the country to try and get as many people out of jail as possible. The money bail system and challenging fines and fees systems and suing prosecutors, but even that work is incremental. And so to me, whenever you do incremental work, And I’m not opposed to incremental work at all, but you have to have a theory for how that incremental work isn’t just harm reduction, but is also actually building power that can contest at a really deep level fundamental power structure in our society. What role are you playing in a movement that changes distribution of power? And some incremental reforms can create a locus for changing a narrative and changing power distributions and other incremental reforms can suck that energy away and you have to have a theory for how what you’re doing is contributing to that more fundamental, more radical power building.

Adam: I think activist Mariame Kaba refers to this as reform reform versus revolutionary reform, which is sort of subjective obviously, but I think the theory of how this sort of informs a broader more radical change is an interesting one. So a lot of what you write about is sort of the culture of the legal world in law school and among lawyers, which I thought was so sort of an interesting, not necessarily a critique I’ve heard, now in the journalism world, these conversations are very common where people say, ‘oh, well I don’t necessarily have that person’s politics or they work for news corps or something, but we’re all, at the end of the day, we’re all journalists, we’re all buddies.’ And this sort of this, you know, it’s like Jake Tapper having a two week meltdown when Obama criticized Fox News. Like there’s this sort of professional norms that you have that can sort of begin to obscure bigger ideological and moral distinctions. And you write about the ways in which these norms are systematized, for lack of a better term, a kind of professional sociopathy. Can we talk about this sort of mentality, the way in which this mentality and these kinds of professional courtesies play into mass incarceration, for lack of a better term?

Alec Karakatsanis: Yes, of course. I think it’s a really important issue for people who work in the punishment bureaucracy to reflect on, and let’s just start with my own experience and my own complicity in this, right? So I was a public defender for four and a half years to begin my career, and I worked at two of what are considered the most zealous and most prestigious public defender organizations, the Federal Defender’s Office and the Public Defender Service in the District of Columbia. These are very high paying, relatively speaking, legal jobs in the public defender world. They have lots of resources. They’re not saddled with unbearable case loads like most public defenders all over the country. Your thought to have the time, energy, and room to be a zealous advocate for your clients. And yet in my four and a half years at both those offices, neither I nor to my knowledge, anyone else at any of those two offices filed a single appeal of a pretrial detention decision. And how did that come to be? These clients, that we cared about a great deal, who are ordered detained, even though they’re presumptively innocent prior to trial, we never even asked an appellate court to overturn that decision because we had become so desensitized to the brutality of pretrial human caging and maybe so cynical about what we could do about it that we allowed it to happen. And I think that has a profound effect on everyone else in the courtroom, let’s say the judges and the prosecutors. You know, when the person who’s supposed to be telling the client’s life story and getting you to understand what it’s like to be separated from your child while you’re awaiting charges in a local jail, the person who’s supposed to be talking about what goes on in these cages and supposed to be setting forth an alternate vision for what the person could be doing outside of jail to assuage any of the court’s concerns. You’re supposed to be telling that compelling story and we were utterly failing. So much so that everybody else in the legal system slowly starts to think, well, it must not be that big of a deal because the public defenders aren’t even raising these issues. They’re never appealing it. We’re never getting overturned, and, and that’s how slowly you create a legal system where 400,000 to 500,000 people on any given night are detained prior to trial. We all became really desensitized to it. Another example that I talk about in the book is when I got to the Public Defender Service in DC and I went into the juvenile court the first day, all of the children there, of course, all of them black — I never saw a white child prosecuted in DC in three years that I was there — were fully restrained in metal chains. We’re talking about 8-year-olds, 10-year-olds, 12-year-olds, many of them with severe intellectual disabilities. The victims of incredible abuse and trauma. They’re fully restrained with a waist chain, ankle chains, handcuffs, they can’t move. They’re very confused. They don’t understand why and everyone in the courtroom is just going about their business. The defense lawyers, the prosecutors, defense lawyers hadn’t objected to it in years and the prosecutors were just doing it. The judges were just doing it every day. How do we get to that point? I mean, and I thought to myself, you know, if this judge came home at night and the babysitter had shackled his child, or you know, the judge went away on vacation and learned that her daughter was shackled for three of the days that she was gone, you might imagine that they would try to criminally prosecute the person that did that to their child. And yet we were just sort of all functioning in this system. We had become really inured to the cruelty that we’re inflicting. And so I just think that like all over the mass incarceration universe, whether it’s shackling people, whether it’s what we’ve allowed our jails and prisons to become, whether it’s the bail issue, virtually at every corner of it, there is a cruelty and there is a complete lack of evidence that anything that we are doing is doing any good for anyone.

Adam: Right.

Alec Karakatsanis: I really explore in the book how do we get to this point where we are so insensitive to the enormous human cost of what we’re doing and so insensitive to the lack of any perceived benefit to any of it.

Adam: Let’s pin this down here. Let’s say that I’m one of these elite liberal reformers, I’m listening to this right now or I’m someone who works at the Brennan Center or Vera Institute and I’m in my car and I’m saying, ‘okay, well these guys are just being holier than thou.’ That we try to work within a system and that you can always sort of have just over the acceptable edge moral condemnation of the person just sort of slightly to the right of you. Right? And I had this conversation with Chesa when I had him on as well, which is like, okay, we’re going to have talk about reform, like let’s pin this down, let’s define this. So as I, from the sort of moral call for lawyers to just at least think about their surroundings, which I think is intrinsically valuable, what does it look like? Let’s sort of get specific here. What percent of your average county jail should be empty and what should those working towards reform have as a number? Do we make these sort of distinctions between violent and nonviolent? I know that those are not good if you’re really serious about reform. How do make these distinctions between sort of domestic abuse, rape? What does that look like in terms of establishing what a rubric for quote unquote “real reform” or “revolutionary reform” really looks like in your opinion? Like let’s try to be a little bit prescriptive here.

Alec Karakatsanis: Sure. I think it’s very important and it’s why I spend some time in the book, not just criticizing and diagnosing, but actually offering what I think are the types of reforms that or changes that actually are meaningful. I think there’s a few rules of thumb. I don’t think it’s useful to give a particular percentage, right? Because people like me think that no human beings should be in a cage and other people think that there’s some small percentage of the existing people who are in cages should be in cages and they think it’s 3 or 4 percent. I’m not interested in having that fight right now. I think all of us sort of can agree that everyone who I know who’s really, you know, put a lot of thought into and studying it has agreed with what some of the sort of the consensus among like sort of the liberal reforming classes that well over 90 percent of the existing punishment bureaucracy is just totally unnecessary even now.

Adam: That’s a good place to start.

Alec Karakatsanis: But like I don’t think that is as interesting to me as sort of crafting some general rules of thumb. And so one rule of thumb to me is any reform that you push for should be reducing the size of the punishment bureaucracy, and this is some of my big problem with people like Larry Krasner and what they’re doing. Every single year he’s been in office, he sought to increase his prosecutor budget. This is my big problem with reforms like body cameras for the police. Right?

Adam: Well right. Yeah. They just put more money into the institution. This is an abolitionist sort of criteria, which is is it putting more money into the institution? If yes, the answer’s no. If no, the answer’s yes.

Alec Karakatsanis: Exactly. Exactly. That’s a big one. Another one is control. Is this reform giving more control and discretion to punishment bureaucrats? Who is it vesting power in? Is it communities or is it punishment bureaucrats and elites? That’s another big one. The third one is, is the reform sort of backward looking or forward looking? Is it just trying to change a policy going forward or is it trying to repair and confront some of the enormous harm that we’ve done in the past? So for example, you know, is it merely legalizing marijuana or is it legalizing marijuana and preserving the business licenses for selling that marijuana for people who have been formerly incarcerated. That’s just one example, right? Or is it using a lot of the money that was being spent on pretrial caging in a certain jurisdiction and turning that money into helping start worker-owned co-ops right? There’s a number of things that are going on around the country that are actually concerned with sort of repairing that harm and investing in people who’ve been impacted by the system. Another big one to me is what I call the silo mistake, which is the mistake that many, many punishment bureaucrats and liberals make, which is we can fix the criminal punishment system without confronting things like capitalism and white supremacy. The other areas of our society, right? These other systems like how we’re delivering healthcare, what our distribution of property and wealth looks like. In my opinion, the criminal punishment bureaucracy evolved precisely to serve the functions of those other systems. And so it makes no sense to say, oh, we can just tweak a few rules here, slightly lower sentences here, slightly fewer people in jail and money bail there without confronting why we even have all of these systems. And so we need to start joining conversations about what’s called criminal justice reform to conversations about the distribution of wealth to conversations about healthcare and wellness and education and immigration and how all of these things fit together.

Adam: Yeah, I do think that’s sort of the bigger conversation you have to have and that there’s a correlation not just between Rahm Emanuel building a police academy, but closing down mental health facilities and schools and that these things are of course are inexorably linked. One of the takeaways that I read is, I think it’s the most interesting, is a sort of call to fellow lawyers to think critically about the systems we live in. And I keep thinking that it’s one of the more sort of urgent conversations that needs to happen because to me the difference between a radical and a moderate really always boils down to urgency. The violence is ongoing. It’s every day. You know, I was just at Cook County Jail a few days ago and the jail population there has decreased depending on who you ask 15 or 20 percent, that’s good. But like it’s still very high. And the difference between someone who sort of says, okay, well we’ll deal with that in 15 years versus someone who says we need to deal with it in 15 minutes is how urgent they view the violence that’s sort of ongoing. You write quote, “For the legal system to unleash police on the poor communities and communities of color such that the US came to imprison black people at a rate six times that of South Africa during apartheid, it was necessary fo the popular culture and legal culture to develop and nurture serious intellectual pathologies. So deeply have these pathologies captured the legal elite that the wholesale normalization and rationalization of this brutality has become arguably the chief daily bureaucratic function of most of us who work in the system.” Before you go, I want to sort of talk about this plea and why you chose to sort of focus on lawyers as a sort of distinct moral cohort to appeal to and what are these pathologies you really want people to think critically about who may be listening to this who are in the legal profession?

Alec Karakatsanis: That’s such a good question and I’m really interested in your point about urgency, which is something I couldn’t agree with more. I often ask if you found out, or if your listeners found out that while you and I were doing this interview the police had raided my home and in my basement I had a dungeon and it was cages and I was keeping people, I’ve been kidnapping people, mostly disproportionately people of color from the streets, putting them in my dungeon, exposing them to sexual assault, violence, lack of medical care, people were dying, they were sort of living in squalor, no exercise, sunlight, fresh air, you and maybe even some of your non abolitionist listeners would support like a search warrant for my home to rescue those people. Kind of like that guy in Cleveland a few years ago who had the women in his dungeon and some of your listeners might even support prosecuting me for kidnapping and torture of all of these people for years.

And yet that is the situation in 3,160 local jails right now. We’ve allowed them to become grotesque torture chambers and as a legal profession we have had no sense of urgency about that. You know, the one and only time I was invited to the White House, I was never invited back for reasons you might imagine, it was shortly after the San Bernardino shooting and the attorney general came in and interrupted our meeting and said, ‘I’m sure many of you are very concerned. I want you to be assured that we’ve got this tactical team and that tactical team and this FBI people and those people they’re all flying out there right now. They’re taking control of the situation. They’re acting. We’re going to give you another update in a couple hours. You know, thank you so much.’ That is what happens when society treats a problem as urgent. And I couldn’t help but notice that day we had been brought to the Obama White House after seven or eight years of virtual inaction and lack of urgency around any of these issues to talk for the first time about bail and fines and fees. And you can tell when a society takes a problem seriously, you send tactical teams to rescue people. And yet there were no federal tactical teams rescuing people from the Harris County jail when 55 human beings died because they couldn’t pay money bail from 2009 to 2015. There are no tactical teams rescuing people from local jails around the country even though people are enduring incredible torture. And so as a legal profession, our sense of urgency has been completely absent from this issue. 

Adam: Yeah. 

Alec Karakatsanis: And the second point to make in response to your question, which I think is a really a profoundly important one, is that the reason I talk about lawyers a lot is I think that if you look throughout American history, lawyers have thought of themselves as real leaders of movements and I think thought wrongly that the law sort of leads to social justice. And in fact it’s exactly the opposite. Lawyers have actually been the people who’ve translated the dictates of the powerful into the rules and norms and laws that oppress people. And when you look at radical social change throughout this country’s history, it’s never been led by lawyers and courts. You know, the whole function of lawyers and courts is to preserve stability and hierarchies of power. They’re the ones who write the contract. They’re the ones who say, you know, I can’t trespass onto your property if you’ve stolen it from my ancestors. So that’s what lawyers have done. And so I wanted to talk to lawyers and I don’t think the book is just for lawyers. I think it’s for ordinary people also to understand what lawyers are and what they do. But like I wanted to talk to lawyers about how if you are serious and urgent about a social movement that will change the way our criminal legal system looks you can’t be the leader. You need to think about how you can help contribute to a movement that’s actually building power because the law always follows power and you have to stop thinking of yourself as some kind of special leader who’s bringing legal cases through this established court system and thinking that that is actually going to lead to any kind of social change. And so I wanted lawyers to understand the urgency of the problem, but also understand that I wasn’t asking them to sort of take a lead in fixing it, but instead to sort of figure out what role they could play in a broader movement. 

Adam: Well I think that’s a great place to stop. Alec, thank you so much for coming on. The book is “Usual Cruelty.” It is out now. Definitely check it out if you can. Thank you so much. I really appreciate it. 

Alec Karakatsanis: Thank you so much for having me. It’s been a really wonderful discussion. Looking forward to more.

Adam: Thank you to our guest Alec Karakatsanis. This has been The Appeal podcast. Remember, you can always follow us at The Appeal magazine’s main Twitter and Facebook page, and as always, you can rate and subscribe to us on Apple Podcasts. The show was produced by Florence Barrau-Adams. Production assistant is Trendel Lightburn. Executive producer is Cassi Feldman. I’m your host Adam Johnson. Thank you so much. We’ll see you next week.