The Failure of ‘Criminal Justice Reform’

ALEC KARAKATSANIS: So I'm going to preface my remarks with just two disclaimers or comments. The first is I don't-- I mean, if your law school is anything like where I went to law school, you're constantly in rooms where people-- often, white men-- are just talking at you, and telling you about all the things they've done and all the things they think and the thoughts they have.

And I do have some things I'd love to share, but I also want to make sure that we preserve a large chunk of this time for comments and questions, because I think it's in the question and answer where I can really start to respond to some of the things that are most on your minds.

So I also want to just set a norm where if I'm talking and there's something I say that is interesting, or problematic, or insufficiently explained, or you want to hear more about it, just why don't you raise your hand, and then even when I'm just doing my opening remarks, we can have a little conversation about whatever it is I've just said and the thought that you had. Just say your name if you're comfortable so that I can actually address you as a human being.

The second thing I want to say is that I have a lot of views about the world that I have developed through a very particular set of life experiences. So my entire career I've been representing people who are in cages, people whose family members are in cages, people who can't afford an attorney, both as a criminal defense lawyer and then as a civil rights lawyer.

And so I've developed a very particular perspective about the way that our legal system works and our society more generally. I'm not claiming that this perspective is objectively correct or that I have all the answers. All I can really offer you is my own perspective, some of which you may agree with, some of which you may disagree with.

But I'm offering it in the spirit of trying to share some of the things that I have started to think about how these systems function, and how they can be changed, and, in many cases, how they can be eliminated and what are some of the beautiful things we can replace them with. So those are the two disclaimers.

Now I'm going to tell you three quick stories that I think illustrate both the work that I've been devoting myself to for the last 15 years and also some of my thinking about where we are as a society, and as a legal system, and as attorneys and future attorneys with respect to what those injustices look like.

So one of the first things I did when I got a grant, actually, from Harvard Law School to quit my job as a public defender and to start a nonprofit organization-- and if people are interested, in the Q&A we can talk about my very dim views about the nonprofit industrial complex that I've developed over the years. [LAUGHS] So I am not encouraging people to, in any way, to go work in the nonprofit industrial complex. But I did that. And there is good work happening in small pockets of it.

But I think that-- I got this grant and I was trying to figure out what to do. And actually one of the things I did was-- you mentioned Bill Quigley in the introduction, which is so fortuitous. Bill is a mentor of mine. And Bill and I worked for a long time on a very difficult and painful case to shut down the debtors prison in New Orleans, Louisiana together.

And through the work that Bill and I did, we stopped the extraction of tens of millions of dollars from the poorest people in New Orleans and got thousands of people out of jail in New Orleans. And I think back on that work with Bill, who's now retired, as a really fond moment in my career. And that was one of the things I did.

But one of the other things I did was I started traveling around the country, just going in the back of courtrooms, just watching what was going on, talking to people's families who were looking at, and, in many cases, really disturbed by what was happening to their loved ones. And one of the places that I went was Alabama, where I had started my career as a public defender.

And after being physically removed from a number of courtrooms, it turns out, in Alabama, you're not allowed to make objections from the courtroom pews if you're not a lawyer barred in Alabama, even if what you're watching is really disturbing. But one of the places it led me was a really horrific jail in a city called Clanton, Alabama in January of 2015, so nine years ago.

And on the morning I got into the Clanton jail, I met a woman named Christie. And Christie had been arrested for shoplifting from Walmart. And because Christie was really poor, she couldn't afford a couple of hundred dollars, which is what the local legal system was requiring for her to be released.

And Christie also had two young children. And those two young children did not know where their mom was. They didn't know she was being held for ransom down the street at the local jail. And Christie was really distraught. Like many of my friends who have children, if they're separated from their children for any period of time, they get quite anxious, especially little children.

And Christie was really confused and disoriented and didn't know where her kids were, didn't know what had happened to them when the cops took her away, because they also took her away with her romantic partner and the father of her children who was also alleged to have been shoplifting from Walmart so that the family could survive. And so she started crying a lot and crying more and was really inconsolable inside the jail. And the jail people in Clanton did what they do in many jails that I've been investigating all over the country.

Instead of letting her out, they brought her to a hallway in the jail where there's no security cameras. And in that hallway, they keep a restraint chair. And they put Christie in this restraint chair and strapped her in. And they started tasing her body over and over and over again until she could no longer cry anymore.

And I met her the morning after that had happened to her. And I photographed all of the wounds on her skin from where the prongs of the electric device had gone into her body. And we talked a lot about-- in this moment of crisis for her, she had this incredible and beautiful perspective. It's hard to talk about without getting emotional. But she said to me, I don't want this to ever happen to another mother.

And so that day, actually, because by the time I met Christie, I already had all of the-- I had targeted Clanton for a lot of reasons as the first city I was going to try this in. I'd even gone to, in Washington DC, to the department of injustice and told them that I planned on challenging the money bail system around the United States. And the lawyers there said, well, that's never going to be successful because we do money bail in over 3,000 jurisdictions all over the country.

And so by the time I met Christie in the jail, I already had all of the documents ready. And I described to Christie what I was interested in doing. And she was so excited about working on the case with me. And so that day Christie became the first person in decades, since the rise of mass incarceration, to challenge the idea that a human being can be put in a cage prior to being convicted of anything, solely because they lack access to cash. They can be separated from their kids. They can lose their job. They can lose their precarious housing. They can be interrupted with vital medical care.

And so that was really the first case I ever did challenging the money bail system. We've since done dozens of these all over the country. We've gotten hundreds of thousands of people out of jail in these cases all over the country in a lot of places. And six weeks after we filed that case, the DOJ intervened in our case on our side and actually said this argument that this one woman was making from her jail cell was now the official position of the US government. And we filed 12 more of those just in 2015 alone. So that's story number one.

And Christie, by the way, is one of the women who I've dedicated my book Usual Cruelty to. Unfortunately, she passed away and didn't live to see us win her case. Her family continued the case in her honor.

The second story is about the federal Bail Reform Act. Has anyone ever heard of the federal Bail Reform Act? No one? A couple people nodding. OK. So there was this movement of liberal, well-meaning people, really led in many respects officially by Bobby Kennedy when he was attorney general and a bunch of prominent lawyers, most of them white men, and including a supreme court justice.

And they ended up having conferences at law schools and writing law review articles. And they sort of arrived, in the '60s, at this consensus that it's unfair and unjust to make the decision about who is in a cage and who is home with their family based on how much money they have. And so they decided they were going to do what they called the Bail Reform Movement.

And it culminated in virtually no states making any changes, but the federal government passing a law modeled after a law that they tried in the District of Columbia where I live, that was an attempt to get rid of the idea of wealth-based pretrial detention. And they passed this law with much fanfare finally in 1984.

And on the day they passed the law in 1984, proclaiming this huge victory for justice, and fairness, and equality, because the federal statute has a line in it that says something to the effect of no person shall be detained prior to trial because they can't afford a financial condition of release. So on the day that was passed, about 24% of all people charged with federal crimes were detained prior to trial because they couldn't pay. So it was a big problem. About a quarter of all people, even though they're presumed innocent, were detained prior to trial.

Today, as I'm standing here talking to you, on the 40-year anniversary of the bail reform act, 72% of people charged with federal crimes are detained prior to trial. Now, they're not detained because they can't pay typically now in federal court. They're detained because a court has found them to be dangerous or a court has found them to be a flight risk.

So if you look at the demographics of the-- so just for those of you keeping track at home, that's a rise of 300% in the rate of detention. It went from 1/4 to 3/4 of people who are now detained, even though they're presumed innocent, when charged with federal crimes. If you look at the demographics of that population, they are more disproportionately poor, more disproportionately Black, more disproportionately immigrant than they were before the big reform. So let's put a pin in that.

And by the way, I could have chosen a story about virtually any other reform you've ever heard of to the criminal punishment system. Probation and parole were once pitched as a huge reform to reduce incarceration. They are now the leading cause of incarceration in the United States. 25% of people that are in state prison right now went there not for being convicted of a new crime, for a technical violation of probation or parole. Another 15% went to prison for a minor misdemeanor crime while they were on probation or parole. That was pitched as a reform.

I've written a whole article about body cameras and the total catastrophe of body cameras as a reform. Virtually everything you are presented with in the sentencing guidelines-- federal sentencing guidelines which were the biggest increase in federal prison population in modern history were a reform to make them more fair. Don't get me started on that. You can look up some of my threads on Stephen Breyer and the federal sentencing guidelines.

I could have used any other example, but I used the bail example because I think it sits really painfully with what happened to Christie. And what I've been seeing all over the country since we've been winning these bail cases-- what are we seeing? We're seeing the same systems put new labels on the very same behavior.

So the companies that used to sell bail bonds now have a different storefront and now they sell electronic monitoring devices. So instead of paying an upfront bail bond fee, now you're released for free but you pay $12 a day to have an electronic monitor attached to your body. Or instead of paying a bail bond company, now you pay a company that charges you $20 for a drug test and you're required to drug test randomly three times a month.

So these are the same aggregations of wealth that are profiting in very similar and sometimes more ways, although the label that we use to describe the form of repression that they're visiting on mostly poor people who are charged with crimes in this country is a little bit different, right?

The same is true with detention. So when people are not being detained because of money, because the system relies on the mass pretrial detention of people to coerce them into pleading guilty, that's the only way the system can process as many people from their homes, and their jobs, and their schools, and their churches, et cetera, into government run facilities and into prison is by coercing quick guilty pleas.

So the system would really crumble if people weren't coerced into pleading guilty. If everyone took the chance to go to trial, we could not have enough lawyers, prosecutors, judges, juries. I mean, it would be impossible, right? So when you can no longer detain people because of money bail, well, there's a lot of pressure to detain people for other reasons. So we're seeing laws all over the country and behavior by judges that results in coming up with other reasons to accomplish the same outcomes.

So that's story number two. Everyone with me? OK, is it Friday? Yeah, Friday afternoon.

[LAUGHTER]

Story number three is-- so last night, I flew back into DC quite late. I've been this week doing a really difficult investigation at a local jail in a mystery city. And I was sitting in the jail with a woman yesterday. And there's so many things I could talk about her experience, but I'll just say one is that jails across the United States, over the last 10 or 15 years, have eliminated in-person visits for children.

So if your mom or your dad is in jail, you're no longer able to come visit them. And this has been a really catastrophic development for people in jail, particularly people who are in jail long-term. So there's a lot of people in jails across the US who are sitting in pre-trial detention for a year, two years, three years, often because they can't pay money bail. And there are many children who would love to visit their mom or their dad, but who are no longer permitted to.

And the reason that this happened is that-- and this is something that we've begun investigating over the last few years-- the two largest prison and jail telecom companies started offering contracts to local sheriffs and local jails all over the country and said, if you eliminate in-person visits, it will increase the need for families to spend money on phone and video calls from the jail. So it's our view that if you eliminate the idea of visiting for free, families will be forced into these really high-priced calls that we offer. And if you give us the monopoly contract at your jail for these calls, we will give you a cut of the extra profits that we make.

And so one after another, jails all over the country, pursuant to these contracts, which you can get through FOIA, started eliminating the ability of children to see their parents, even though there's very strong empirical evidence that children visiting their parents reduces crime, both inside and outside the jail, and has really profound long-term effects on the mental and physical wellbeing of the children. So this was not done for public safety reasons. It was done for reasons of profit.

And I was sitting with this woman talking about many things including that she hasn't been able to reach her lawyer in months, which is another problem that we'll tackle another day if you invite me back. And we got to talking about the last time she saw her kids. And at this particular jail, there's a window on the women's floor that enables you to look out onto the street. So a lot of people's kids actually come and wave at their mom or their dad. And you can sort of coordinate the timing of it.

And the other thing that these kids do is they draw hearts and flowers and stuff on the sidewalk in chalk. And so their moms and dads can come and look at it and wave and see the drawings. And when I was there, these kids made these beautiful drawings on the sidewalk that I photographed before meeting with the women. And when I got back out of the jail, the sheriff had come out and was scrubbing them and washing them away.

And within an hour or so, all these beautiful drawings and pictures that these kids had written on the sidewalk, not hurting anyone, just a little ray of light for the people that are in the jail, have been washed away for good. And the sheriff who was doing that ran on a platform of reform and is seen as a progressive leader in the law enforcement community.

If you read my book, you'll understand that I don't like to use terms like law enforcement. It gives one the impression that laws are neutral and they're enforced. If a law is broken, the law is enforced. When in reality, police, prosecutors, judges, they're only enforcing some laws against some people some of the time.

So that's why I use air quotes. I'm not trying to be silly. I think that term is a term of propaganda, just like the Department of Justice, or the Department of Defense, or-- you get the point-- which it used to be called the Department of War, by the way. Ask yourself why that change was made.

So I digress often. So this is what has passed-- so this is someone who is portraying themselves as a beacon of reform. And yet, he runs a jail where not only are people detained because they can't pay bond, not only are people living in horrific conditions with maggots in the food, et cetera, terrible medical care provided by a private for-profit company, where people can't even reach their lawyers for months at a time, where nobody has even bothered to file a bail motion to get them out of jail, where their lawyers won't even call me back.

I offer, hey, it turns out I've actually won a lot of these bail cases in federal and state supreme courts all over the country, and I would be totally willing to do this case for free with you or any-- you know what, any of your cases. I'll file a bail motion in every one of your client's cases. Can't get a call back, right? So not only-- but all of that is being pitched as a very progressive jurisdiction, which is at the forefront of criminal justice reform in many ways.

I think these three stories interact to illustrate a point that has become, in my opinion, the central theme of a lot of our work all over the country. The systems that we're fighting against are incredibly entrenched, incredibly powerful. I don't mean powerful necessarily just politically, although they do have a lot of political power.

They make a lot of money. They have all of the things that come with a lot of money in our society. They are able to pay news outlets, essentially, to cover them. They are able to pay legislators to legislate laws that will increase the amount of profit they can suck out of the poorest people in our society.

They are able to pay thinktanks to write thought pieces and reports that minimize or downplay or even whitewash the harms that they're causing or that subtly affect the intellectual discourse in our society about what kinds of harms are happening and what kinds of solutions we can imagine.

But they also have a really, I think, powerful cultural component to them. They are able to affect basic conception that we have about what safety is, and whose safety matters, and what kinds of investments our society should be making if it cared about safety.

And so the combination of their political, economic, cultural power and cache has led to an environment where the people who benefit from these systems of repression are able to use their own incompetence, and violence, and ineffectiveness as an excuse constantly to get more resources in a perpetual cycle of oppression, and violence, and brutality, and incompetence, and reform.

And many of the strategies that come to our minds as lawyers, strategies that we're taught in law school-- like, oh, well, just bring a case about that thing, or write a policy memo, or write a bill-- many of these strategies, because they don't actually focus on changing the underlying balance of power that created the initial problem, they're not actually going to solve that problem.

And, in fact, they're going to just put you right on to the Ferris wheel-- or what am I? Is that-- carousel? Something like that. I'm really bad with things like that. But you know that thing that just goes around? Yeah, they're going to put you on that thing.

[LAUGHTER]

And you're going to become just another one of the well-meaning-- and there's lots of non-well-meaning people here, but I see many, many well-meaning people just being spun around in circles, people who want to devote their life and careers to dramatically changing how these systems are functioning. And yet, they're caught up in a strategy or with a set of tools that just fundamentally misunderstands the nature of the problem.

And so that's why one of the ways that we approach our work at Civil Rights Corps-- and I don't actually think we're doing it that well, but I want to make a point about the kind of perspective that it takes-- is we think about, should I take this case is a really complicated question. And secondly, if I take this case or this project, how should I do it? Who should my partners be? What are the kinds of considerations that go into thinking about work as a lawyer?

And it turns out that the most important factors for us are what are the chances that our work in this particular area, this issue, this case, this project, this geographic location, how can it be combined with the work of other people who are working to change the balance of power in this particular area to make a difference in that underlying balance of power, so that the change that we achieve is enduring and significant and so it can't be co-opted by all of the forces arrayed against us, whether those forces be forces of narrative propaganda, or forces of economic profit, or forces of cultural norms, habits that a lot of these bureaucracies develop.

And then, how do we, as people interested in social movements and in thinking about changing the balance of power in our society, how do we interface with and interact with the government and corporate bureaucracies that are going to be tasked with implementing something even if we win it? Whether it's a court case that we win or a bill that we get passed, those things just don't magically manifest into the world. There's a whole bureaucracy that has to actually make any policy change in our society happen.

And this is something that progressive movements have paid, I think, far too little attention to, is how the fundamental culture of bureaucracies can fundamentally corrupt even those rare moments where we're able to get a victory in court or in legislature. And so we're constantly thinking not just as legal strategists for how a particular legal claim can work and function and what happens if we win in court, but what are the constellation of other forms of advocacy, organizing, and narrative change that need to happen in a perfect storm for our work in this area to be worth doing?

And how, by the way, does that connect to much broader and deeper movements that we need to be a part of in our world that change some of the underlying balance of power in our society, because it turns out you can't really solve any of the problems in the punishment bureaucracy without thinking about bigger questions like capitalism, like health care, like housing, like borders and immigration, like the role of militarized bureaucracies, like the role of the power of police unions.

All of these things are questions that are deeply connected. And you can't win on the bail issue in a silo, right? Because those same interests I talked about earlier will just find a way to reproduce the money bail system with a different label. So how do we plug in our work to a much broader, bigger movement is really a central question that we ask ourselves in all of our cases.