April 20, 2020 Book Review

Usual Cruelty: The Complicity of Lawyers in the Criminal Injustice System

Reviewed by Robert Costello

Usual Cruelty: The Complicity of Lawyers in the Criminal Justice System

By Alec Karakatsanis, The New Press, 231 pages, 2019, 978-1-62097-527-5

If you were the host of a late-night show, who would your first guest be? (They can be alive or deceased, well known or not, personal hero, major figure in the world of justice, beloved family member, etc.)

I dedicated the book to my four clients who have died in the past few years: Tonya, Christy, Paula, and Cindy. If I am beginning to tell a story about the senseless pain that our criminal punishment system inflicts every single day on people’s bodies and minds, I would ask them to share their stories. When people hear what happened to them—what we all did to them using our “justice” system—they start to question why we have constructed this massive punishment bureaucracy. If I’m lucky enough to have such a platform as a late-night show, I’d try to use it to give them space to tell their stories—to re-sensitize our society to the everyday cruelty in our courtrooms, jails, and prisons and to shed light on how this brutality became so common as to be normalized for all of us who work in the bureaucracy every day. Theirs are not stories of justice, but of racism, poverty, control, and massive indifference.

Please summarize the first chapter, which is titled “The Punishment Bureaucracy: How to Think About Criminal Justice Reform.”

The first essay, the Punishment Bureaucracy, is about how we are at a dangerous moment in what is called “criminal justice reform.” I argue that most of the reforms being proposed and implemented at the local, state, and national levels do not dismantle mass incarceration but serve to reinforce the architecture of the punishment bureaucracy.

To take just one example, efforts to end “money bail” are morphing into increased pretrial detention, and the financial interests that profited from money bail are the same aggregations of wealth now profiting from electronic monitoring, drug testing, and pretrial “supervision.” In the end, the elites in charge of these bureaucracies may tweak some of the most grotesque flourishes of the assembly line that we have built in order to pay lip service to increasing popular consciousness of the system’s senselessness, but their current proposals do not fundamentally alter the system. Why?

I argue that this is because, for elites, the criminal punishment system is not “broken” at all. Its purpose is not genuine public safety, well-being, and a society where everyone can flourish. Its purpose is to control certain populations and to preserve racial hierarchy and distributions of wealth. Seen this way, the punishment bureaucracy is actually remarkably effective. And if we don’t understand why it looks like it looks, all of our proposed reforms are going to be misguided.

So, in the essay, I talk about what we have chosen to criminalize (it’s a crime to wager in the streets over dice but not to wager over the global supply of wheat, which has caused massive famine, for example) and, within that, who we have chosen to target for violations of those laws and how we punish them (we ruthlessly enforce public intoxication and drug laws in certain communities but do not enforce those laws on college and boarding school campuses, for example). It turns out that these are just political choices based on who has power. I criticize notions like “the rule of law” and “law enforcement” as terms of propaganda designed to make the system seem neutral and objective when it is really about power. Powerful people make our laws, and then they only enforce some laws against some people.

Finally, I criticize by name many prominent punishment bureaucrats and so-called progressive prosecutors as case studies in how elite bureaucrats are co-opting a movement to change our criminal system. To help people navigate these issues concretely, I offer several simple rules of thumb for how each of us can tell the difference between meaningful changes and reforms that will just reinforce the bureaucracy.

What does the human lawyer (title of your second essay) mean?

I first wrote The Human Lawyer during my final year in law school and my first few months working in the legal system. At that time, I was particularly interested in legal education and how the culture of elite law schools produces professionals who tolerate a legal system that is profoundly unjust. The title came about because each vignette in that essay explores the ways in which legal education and legal practice can normalize cruelty—sketches the processes by which lawyers can become desensitized to things that should shock human beings to the core. I explore how certain stories and modes of expression have been largely lost in legal culture and practice—how we think much more in terms of police reports than of poetry.

But the vignettes also capture some of the promise and beauty of the law and lawyering. Many of the vignettes explore how we can take the best parts of the law and legal practice and apply them to our personal lives, such as law’s insistence on articulating basic shared values and then requiring evidence and reasons to rigorously test whether a particular view, belief, or action is consistent with those values.

So, the Human Lawyer interrogates how to bring the best parts of ourselves to the law and the best parts of the law to ourselves.

In your final essay, you explore policing, mass incarceration, and the failure of the American lawyers. Can you offer an overview of this essay?

In the third essay, I explore carceral America as a failure of legal reasoning and legal practice.

As to legal reasoning, there has been an intellectual failure of the profession to scrutinize the evidentiary and logical foundations of contemporary mass incarceration.

First, lawyers have failed properly to catalog, appreciate, and interrogate the negative costs of how our society polices and how it cages. We have not meaningfully confronted the brutality, torture, and indifference that our legal system inflicts every day (because we do it mostly to people who have no power). Using examples and stories, I say some things that many people do not know or have trouble acknowledging about what we do to the human beings whom we choose to bring into the punishment bureaucracy. I explain how certain legal doctrines have ignored those costs, with the result that the doctrines—such as those governing sentencing and plea bargaining—are incoherent and laughable.

Second, we have failed to scrutinize the purported benefits of mass human caging, both because of an under-theorization of the amount of harm actually caused by what we popularly call “crime” and because of an underdeveloped account of whether caging humans leads to less of that “crime.” I expose some of the most obvious flaws and omissions inherent in standard legal thinking (or lack thereof) about whether mass human caging actually leads to any of its purported benefits. The evidentiary case against it is actually overwhelming.

As to legal practice, I talk about how the profession has systematically failed the disproportionately poor people and people of color who are brought into the punishment bureaucracy. The state of lawyering for most people in our legal system is an abomination. Lawyers and the schools that produce them must begin thinking through this challenge of redistributing legal labor so that law schools and lawyers are not mere tools for the mass human caging bureaucracy.

Entity:
Topic:

Robert Costello is professor and chair of the Criminal Justice Department at SUNY Nassau Community College and an adjunct professor at Hofstra University.