The Rule Of Law
April 12, 2019 3:25 PM   Subscribe

The Punishment Bureaucracy: How To Think About Criminal Justice Reform, Alec Karakatsanis, Yale Law Journal

A lot of people are talking about “criminal justice reform.” Much of that talk is dangerous. The conventional wisdom is that there is an emerging consensus that the criminal legal system is “broken.” But the system is “broken” only to the extent that one believes its purpose is to promote the well-being of all members of our society. If the function of the modern punishment system is to preserve racial and economic hierarchy through brutality and control, then its bureaucracy is performing well.
posted by the man of twists and turns (5 comments total) 19 users marked this as a favorite
This is a great paper. I'm a little over half-way through and there are still 37 more pages for things to change but it is less how to think about criminal justice reform and more how to think about the structure of American society.

Don't be put off by the title and the fact it is coming from a law journal, the writing is accessible, engaging, and requires no specialized legal knowledge.
posted by any portmanteau in a storm at 4:41 PM on April 12, 2019 [3 favorites]

Karakatsanis is an incredible person (and lawyer), still in the earlier stage of his career. From an interview he did with Lawdragon:
You just can’t have a society that has 2.3 million human beings in cages without appreciating that that means 11 or 12 million times a year police are coming to people’s homes, churches, schools and jobs, and putting metal handcuffs on them, taking them away and feeding them into this machine that then gives them criminal records – and they lose their houses, their jobs and medical care, and traumatic things happen to them in jail. You know all of these things are happening, but it’s very different to sit in a jail cell with someone as she talks about being separated from her children because she couldn’t pay a traffic ticket. And to have someone crying, not knowing when or if she’s going to see her kids again, because they’re stuck in a jail cell that is covered in feces, blood and mucus, and sharing an open toilet with eight other people when three days ago she was sitting on her couch with her one-year-old.
It is really difficult for someone working in the system like he is to be able to sustain that level of urgency and understanding, knowing the full scale of the INJUSTICE going on, while still functioning day in and day out as a fantastic, strategic lawyer. I could never do it.
posted by sallybrown at 5:52 PM on April 12, 2019 [6 favorites]

this is a lot. couple thoughts-

Part V i found very unpersuasive. it is not, nor should it be, the job of courts to opine whether a criminal law is good public policy. it would create mass chaos in a common law system like that in the US if different trial courts or even lower level appeals courts were dismissing some cases but not others based on whether that judge agreed with that penal law. the author asks why this is ok with civil laws, which (depending on the law) we subject to greater scrutiny. well, it has to do with the lack of a criminal victim in civil cases. in fact, there was hardly any mention of victims at all in this essay.

Part VI i thought was very good. prosecutorial discretion is often biased to the point of utter craziness, and legislatures should in my opinion limit that discretion by setting priorities using evidence-based data to both attack racism in law enforcement while still reducing crime.

the remainder of the essay, though, made me think the author wouldnt even support such a thing. he derides all efforts today to make the problem better as worse than half-measures-- he basically says it's actual hoodwinking. but this is so misguided. he hammers over and over on the immorality of caging people, especially indigent people, but shows hardly a speck of care for the victims, who are also often indigent.

the drug war is an abomination. racism and power madness and militarization in law enforcement is rampant and has been forever. legislatures, especially in red states, often dont operate in good faith on penal matters. BUT most of the incarcerated people in the US today are there for some version of burglary, robbery, assault, sexual assault, attempted murder, or murder. (in fact there was a mefi post recently with helpful pie charts on this.) this is a complex problem with people (including prosecutors like me) acting in good faith even if we dont agree 100% with the author's take. a lot of his points are well-taken, but his purity-test approach is not.
posted by wibari at 9:42 PM on April 12, 2019 [3 favorites]

Acting in good faith within a monstrous system doesn't absolve the perpetrators of their crimes against humanity.

It's obvious on its face that the system is immoral and unjust. The magistrates and nobles that administer it and the enforcers and jailers who run it must know that. However, since admitting this would require admitting that many incarcerated people are being unjustly punished — not to mention necessitating revisiting centuries of precedent — it can't even be contemplated.
posted by ob1quixote at 10:26 AM on April 13, 2019 [2 favorites]

I already put this in the 'Humor' thread, but it's a very serious critique of The System: "E pluribus Unum"? Hmmmm, no... how about "Reptant. Nihil hic"??
posted by oneswellfoop at 10:27 PM on April 13, 2019

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