Andrew Biddison*

Criminal law is a required course in law school. As a survey course, there is often a tight focus on black letter law. Unfortunately, this focus ensures that many students—and especially those who choose not to specialize in this area of law—will finish their legal education without an informed understanding of the state of the American criminal legal system or the fundamental legal, political, and economic choices that construct it. Usual Cruelty: The Complicity of Lawyers in the Criminal Injustice System by Alec Karakatsanis provides a cogent primer on these structural issues.

Usual Cruelty compiles three essays written by Karakatsanis—a former public defender and founder of Civil Rights Corps, a nonprofit impact litigation outfit based in Washington, D.C.—at various times in his legal career. While tackling a broad range of issues, three core themes emerge throughout the book. Additionally, the book offers lessons on the power of language and inspires a more holistic criminal law curriculum.

One of the book’s themes is the chasm between how the law is written and how the law is experienced. Ostensibly all laws are designed to be enforced, but Karakatsanis problematizes this assumption. A key juxtaposition here is the frequency with which laws criminalizing poverty are enforced in relation to those which could target the powerful.

An exploration of the effects of the cash bail system fleshes out this comparison. In telling the stories of individuals imprisoned for offenses like failure to pay parking tickets or driving on an expired license, Karakatsanis describes a system in which hundreds of thousands of people—many of whom have not yet been charged with a crime—languish in filthy, violent, overcrowded cells simply because they lack financial resources. Contrasted with this portrait are stories of actors who broke other laws and caused clear societal harm—from corporate polluters of the environment to police and soldiers who murdered unarmed civilians—and were neither prosecuted nor imprisoned.

The reader is forced to confront this discrepancy. Why, if we live in a system of laws, are only some laws enforced? Why are only some harms deemed criminal in the first place? Why are punishments disproportionately applied across axes of race, wealth, and other identities? To Karakatsanis, the answer is power—who holds it, and what they need to do to maintain it.

Karakatsanis begins his essay The Punishment Bureaucracy with a quote from George Eliot’s Middlemarch: “we do not expect people to be deeply moved by what is not unusual.” With this, Karakatsanis introduces the second theme: that people accept many of the horrors of the criminal system as normal because of the frequency with which they occur. The mass scale of punishment and incarceration in our society has led to this acceptance among many actors in the legal system. Our criminal legal system has led to the largest imprisonment of human bodies in the world, but it’s rare to see lawyers and members of the punishment bureaucracy confront whether that mass human caging accomplishes any of the explicit goals of the system, like public safety, justice, or rehabilitation.

Karakatsanis brings attention to this “remarkable lack of intellectual rigor” in our punishment system, where almost none of the decision makers have any clue about whether they are doing any good. A prime example of this lacking rigor is that while individual charges must be proven beyond a reasonable doubt, advocates for carceral punishment lack the most basic data, evidence, or rational explanation to show that the caging of hundreds of thousands of human beings in deplorable conditions accomplishes any rehabilitative or public safety goals. Admittedly there is no disconnect here if the end goal of the system is wholly punitive, but Karakatsanis encourages readers to consider whether a system which can only be justified by its capacity to inflict harm on people is worth having.

In discussing this topic, the author proposes that modern incarceration practices largely function as a punishment system that maintains a class-based and racialized hierarchy of power. Regardless of what the system actually aims to do, all lawyers who interact with it must approach it more critically to understand it.

The last theme, and the one most relevant to law students, is the importance of personal decisions in how we choose to interact with the punishment system. The second essay, The Human Lawyer, follows the decisions of a hypothetical law student as they struggle to navigate their life and their career. Here Karakatsanis encourages reflection on the responsibility of law students to facilitate justice and the degree to which this responsibility conflicts with the desire to achieve financial security. Karakatsanis also critiques “progressive” prosecutors and public defenders while offering insights into how each group can mitigate the senseless cruelty of our punishment system through their individual choices. Though he ultimately identifies grass-roots political agitation as the only long-term fix for the legal system, Karakatsanis illustrates through his own writing and advocacy the huge impact that an individual attorney can have.

Usual Cruelty also encourages budding legal writers to think critically about the words they use and could be a vital resource in providing students with a more holistic understanding of criminal law in the United States.

Some of the terms used by Karakatsanis—such as “human caging” and “punishment bureaucracy”—may seem unusual or even extreme. With these linguistic choices, he describes and demonstrates the importance of how we talk about issues of crime and punishment. For example, the phrase “criminal justice system” is just as loaded and politicized as the phrase “criminal injustice system.” As the former has been widely normalized, some lawyers and policymakers have refrained from considering the effects of that linguistic choice. To describe a system rife with prosecutorial misconduct, police violence and abuse, judicial conflicts of interest and corruption, and a frequency of human caging unseen in human history as “just” is to make a political statement. The phrase “criminal justice system” may obfuscate or justify the current state of our system, making the work of those who seek a better criminal legal system that much harder.

Law students can apply this thoughtfulness about language to their own work. The words used in Notes, academic papers, and even blog posts produced during law school have power and should be put under similar levels of scrutiny by those choosing them.

Usual Cruelty also makes an excellent supplement to law school curricula and could help generate discourse about crime, punishment, and justice. While some criminal law curricula touch on issues like sentencing guidelines and prosecutorial discretion, attention to the structural issues discussed in this book—which are clearly relevant to the study and practice of criminal law—is lacking. Unfortunately, in a survey course it would be impossible to delve into the actual criminal system with the same level of detail in which students examine the nuances of homicide statutes.

This book, however, can serve as a primer and an exhortation to do that deep analysis, either in further classes on criminal law or on one’s own. Totaling less than two hundred pages and with the publisher offering free copies for law schools—with matching copies going to incarcerated individuals—it is neither time intensive nor expensive to read. Professors and administrators should consider recommending it as supplementary reading in criminal law and adjacent courses or in more general law school orientation programs. Courses more intimately touching on the machinations of the criminal legal system could also seriously benefit from directly assigning this text. Regardless of whether the individual reader agrees with Karakatsanis’ theories, the excellent bibliography provides resources to generate and sustain productive debates.

Exposure to texts like Usual Cruelty that challenge the reader and tell hard truths is necessary to produce a generation of lawyer leaders capable of understanding the systems we inhabit and bettering them.

 

*J.D. Candidate, University of Minnesota Law School Class of 2023, JLI Vol. 40 Staff Member