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The Punishment Bureaucracy: How to Think About “Criminal Justice Reform” Alec Karakatsanis1

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The Punishment Bureaucracy: How to Think About “Criminal Justice Reform” Alec Karakatsanis1 THE YALE LAW JOURNAL FORUM M ARCH 28, 2019 The Punishment Bureaucracy: How to Think About “Criminal Justice Reform” Alec Karakatsanis1 [W]e do not expect people to be deeply moved by what is not unusual. That element of tragedy which lies in the very fact of frequency, has not yet wrought itself into the coarse emotion of mankind; and perhaps our frames could hardly bear much of it. If we had a keen vision and feeling of all ordinary human life, it would be like hearing the grass grow and the squirrel’s heart beat, and we should die of that roar which lies on the other side of silence. —Mary Ann Evans, Middlemarch2 i On January 26, 2014, Sharnalle Mitchell was sitting on her couch with her one-year-old daughter on her lap and her four-year-old son to her side. Armed government agents entered her home, put her in metal restraints, took her from her children, and brought her to the Montgomery City Jail. Jail staff told Shar- nalle that she owed the city money for old traffic tickets. The City had privatized the collection of her debts to a for-profit “probation company,” which had sought a warrant for her arrest. I happened to be sitting in the courtroom on the morn- ing that Sharnalle was brought to court, along with dozens of other people who had been jailed because they owed the city money. The judge demanded that 1. The views expressed are my own and do not necessarily represent the views of anyone else, including Civil Rights Corps. 2. GEORGE ELIOT, MIDDLEMARCH 194 (Rosemary Ashton ed., Penguin Books 1994) (1872). 848 the punishment bureaucracy Sharnalle pay or stay in jail. If she could not pay, she would be kept in a cage until she “sat out” her debts at fifty dollars per day, or at seventy-five dollars per day if she agreed to clean the courthouse bathrooms and the feces, blood, and mucus from the jail walls. An hour later, in a windowless cell, Sharnalle told me that a jail guard had given her a pencil, and she showed me the crumpled court document on the back of which she had calculated how many more weeks of forced labor separated her from her children. That day, she became my first client as a civil rights lawyer. ii Prisons do not disappear social problems, they disappear human beings. —Angela Davis3 There are 2.2 million human beings confined in prison and jail cells in the United States tonight.4 About 500,000 of those people are presumptively inno- cent people awaiting trial,5 the vast majority of whom are confined by the gov- ernment solely because they cannot pay enough money to buy their release.6 This country has five percent of the world’s population, but twenty-five percent of the world’s prisoners—the highest rate of human caging of any society in the 3. Angela Davis, Masked Racism: Reflections on the Prison Industrial Complex, COLOR LINES (Sept. 10, 1998), https://www.colorlines.com/articles/masked-racism-reflections-prison -industrial-complex [https://perma.cc/7GCH-GMKZ]. 4. Danielle Kaeble & Mary Cowhig, Correctional Populations in the United States, 2016, U.S. DEP’T JUST. (Apr. 2018), https://www.bjs.gov/content/pub/pdf/cpus16.pdf [https://perma.cc /RA2A-VPMC]. 5. See Peter Wagner & Wendy Sawyer, Mass Incarceration: The Whole Pie 2018, PRISON POL’Y INITIATIVE (Mar. 14, 2018), https://www.prisonpolicy.org/reports/pie2018.html [https:// perma.cc/7S96-3AAS] (noting that 465,000 pretrial defendants are in the custody of local jails alone). 6. Thomas H. Cohen & Brian A. Reaves, Pretrial Release of Felony Defendants in State Courts, U.S. DEP’T JUST. 1 (Nov. 2007), https://www.bjs.gov/content/pub/pdf/prfdsc.pdf [https://perma .cc/UL7X-VXKN] (reporting that of all state-court felony defendants who are detained until the end of their cases, five out of every six are confined because of money bail). 849 the yale law journal forum March 28, 2019 recorded history of the modern world.7 At least another 4.5 million people are under government control through probation and parole “supervision.”8 Between eighty and ninety percent of the people charged with crimes are so poor that they cannot afford a lawyer.9 Twenty-five years into America’s incar- ceration boom, black people were incarcerated at a rate six times that of South Africa during apartheid.10 The incarceration rate for black people in the nation’s capital, where I live, is nineteen times that of white people.11 I have traveled the country and seen nearly identical practices in every court- room and every jail that I have visited. We have a legal system in which things like what happened to Sharnalle are simultaneously illegal and the norm. 7. Michelle Ye He Lee, Does the United States Really Have 5 Percent of the World’s Population and One Quarter of the World’s Prisoners?, WASH. POST (Apr. 30, 2015), https://www .washingtonpost.com/news/fact-checker/wp/2015/04/30/does-the-united-states-really -have-five-percent-of-worlds-population-and-one-quarter-of-the-worlds-prisoners [https://perma.cc/Z546-DH5T]. 8. Wagner & Sawyer, supra note 5. No one reliably keeps track of how many millions of addi- tional people are on some form of pretrial supervised release or in deferred prosecution pro- grams. 9. 2017 Report of the Ad Hoc Committee to Review the Criminal Justice Act, JUD. CONF. xiv (Apr. 2018), https://cjastudy.fd.org/sites/default/files/public-resources/Ad%20Hoc%20Report %20June%202018.pdf [https://perma.cc/98NB-NQRT] (“Fully 90 percent of defendants in federal court cannot afford to hire their own attorney.”); John Pfaff, Opinion,A Mockery of Justice for the Poor, N.Y. TIMES (Apr. 29, 2016), https://www.nytimes.com/2016/04/30 /opinion/a-mockery-of-justice-for-the-poor.html [https://perma.cc/Y5CR-9AHP] (“Ap- proximately 80 percent of all state criminal defendants in the United States qualify for a gov- ernment-provided lawyer.”). 10. LANI GUINIER & GERALD TORRES, THE MINER’S CANARY: ENLISTING RACE, RESISTING POWER, TRANSFORMING DEMOCRACY 263 (2002). 11. Marc Mauer & Ryan S. King, Uneven Justice: State Rates of Incarceration by Race and Ethnicity, SENT’G PROJECT 11 (July 2007), https://www.sentencingproject.org/wp-content/uploads /2016/01/Uneven-Justice-State-Rates-of-Incarceration-by-Race-and-Ethnicity.pdf [https:// perma.cc/9Y9J-E4PT]. The disparity appears to have worsened since the Sentencing Project’s analysis a decade ago. Comparing the D.C. Department of Corrections’ data against Census data suggests that the incarceration rate for black people is now twenty-four times worse than it is for white people in Washington, D.C. Compare Facts and Figures, D.C. DEP’T CORREC- TIONS (Sept. 2018), https://doc.dc.gov/sites/default/files/dc/sites/doc/publication /attachments/DCDepartmentofCorrectionsFactsandFiguresSeptember2018.pdf [https:// perma.cc/B92B-VA2P], with Washington, DC, CENSUS REPORTER (2017), https:// censusreporter.org/profiles/16000US1150000-washington-dc [https://perma.cc/755D -RRYG]. 850 the punishment bureaucracy iii [T]he movement for reforming the prisons, for controlling their func- tioning is not a recent phenomenon. It does not even seem to have orig- inated in a recognition of failure. Prison ‘reform’ is virtually contempo- rary with the prison itself: it constitutes, as it were, its programme. —Michel Foucault12 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 bureau- cracy is performing well. iv Official language smitheryed to sanction ignorance and preserve privi- lege is a suit of armor polished to shocking glitter . It is the language that drinks blood . —Toni Morrison13 The emerging “criminal justice reform” consensus is superficial and decep- tive. It is superficial because most proposed “reforms” would still leave the United States as the greatest incarcerator in the world. It is deceptive because those who want largely to 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. Nearly every prominent national politician and the vast majority of state and local officials talking and tweeting about“criminal justice reform” are, with var- ying levels of awareness and sophistication, furthering this deception. These “re- form”-advancing punishment bureaucrats are co-opting a movement toward profound change by convincing the public that the “law enforcement” system as we know it can operate in an objective, effective, and fair way based on “the rule 12. MICHEL FOUCAULT, DISCIPLINE & PUNISH 234 (Alan Sheridan trans., Vintage Books 2d ed. 1995) (1977). 13. Toni Morrison, Nobel Lecture (Dec. 7, 1993), https://www.nobelprize.org/prizes/literature /1993/morrison/lecture [https://perma.cc/ZHR4-YWEF]. 851 the yale law journal forum March 28, 2019 of law.” These punishment bureaucrats are dangerous because, in order to pre- serve the human caging apparatus that they control, they must disguise at the deepest level its core functions. As a result, they focus public conversation on the margins of the problem without confronting the structural issues at its heart. Theirs is the language that drinks blood.
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