How an Innovative Civil Rights Attorney is Shaking Up the Status Quo
What makes former public defender and current civil rights lawyer Alec Karakatsanis so special is that although he works within the same legal system as all of his peers, he sees something entirely different in its inner workings.
Specifically, his approach to our criminal justice system is different. His mindset is different. He is a visionary who brings a touch of humanity to the system. It takes someone special to separate themselves from the pack and to speak out against injustice.
To that end, he specializes not in the glaring injustices that scream unfairness, but rather in the injustices that have persisted for decades—injustices that haven’t just been ignored by his peers, but which have been embraced as business as usual by his peers.
He combats the injustices that are so common that they have become part and parcel of the fabric of the American criminal justice system. In fact, these injustices have persisted for so long that they don’t even strike people as unjust anymore. It’s simply business as usual—a never-ending assembly line that knows no mercy.
In such a legal landscape, Alec is a true outlier—a trailblazer, a disrupter, and an innovator in a system that eschews innovators.
In the eyes of traditional lawyers, prosecutors, and judges, his words and actions could even be perceived as radical. In his book, Usual Cruelty, for example, he dismantles the punishment paradigm’s structural flaws. Alec calls attention to the blatantly unconstitutional practices that pervade the entire legal system, many of which are accepted without resistance and even perpetuated by the legal community, including so-called criminal defense attorneys.
Disheartened by this trend, Alec quit his job and began suing judges, prosecutors, sheriffs, police departments, cities, counties, states, and court systems across the country for the widespread constitutional violations that are a normal part of everyday life in the American legal system. Alec is hardly a second-tier ambulance chaser looking to shake some trees for some easy money; he graduated from Yale College with a degree in Ethics, Politics, & Economics. He then immediately enrolled at Harvard Law School—where he was a Supreme Court Chair of the Harvard Law Review—graduated with a J.D., founded Civil Rights Corps, and began his quest to challenge a legal system that blatantly exploits the poor and makes it business as usual to openly flout the U.S. Constitution.
For instance, Alec’s first client as a civil-rights lawyer was a woman who had been arrested for unpaid traffic tickets as she sat at home on her couch with her one-year-old daughter on her lap and her four-year-old son beside her. Armed agents entered her home and took her to jail in metal restraints, where she was given a choice: she could either “sit out” her debt to the city in jail, earning $50 toward her balance per day, or she could earn $75 scrubbing blood and feces from the jail walls.
Alec eventually went on to win a landmark case concerning the City of Ferguson’s use of its legal system to essentially extort money from poor people.
The crux of the suit was that Ferguson averaged 3.6 arrest warrants per household. Tellingly, nearly all of them were for Black people with unpaid debts. These people were caged, and then police, prosecutors, the municipal court system, and individual jailers would negotiate cash payments toward their debts—and eventual release—with their families. Rather than serving any rehabilitative or restorative purpose, this scam—and others like it—were the primary function of the City’s entire “justice” system: a massive money-making mechanism. Worse still, this brutal method of generating revenue is hardly unique to Ferguson—it flourishes in most cities and states across the country. Fortunately, Alec hasn’t just fought against these inhumane practices—he’s won.
And then there is arguably the most controversial aspect of Alec’s work: challenging the cash bail system. Before you’re tempted to dig your heels in and take the unyielding and dogmatic position that “criminals” should not be released without posting cash bail, Alec would urge you to consider the human toll.
Although it has become an everyday practice of judges across the country, pretrial detention is not designed to be the norm; it’s supposed to be the exception. More precisely, under our laws, holding people who are legally presumed innocent in a cage until they can have their day in court, which could take one or more years, is not the express design of the American justice system. Rather, it’s designed to hold only those people who pose a legitimate “threat to the public” or who are genuinely unlikely to return for their court proceedings, i.e., a “flight risk”—a group that makes up a small fraction of the people arrested. Otherwise, they are to be released (on their own recognizance) until such a time when they are found guilty of the alleged crime.
As Alec’s successful lawsuits have detailed, the U.S. Supreme Court has made clear that…
“In our society, liberty is the norm, and detention prior to or without trial is the carefully limited exception.”
Problematically, even though the law is well-settled on pretrial detention, judges in over three thousand cities and counties flout it every day. Incredibly, every night across the United States, nearly 500,000 people are kept in jail cells before being convicted of anything, mostly because they cannot pay money for bail. The human toll is immeasurable.
More specifically, judges routinely hold people without conducting a meaningful hearing to determine if jailing the accused before he is convicted serves any compelling government interest; in fact, they routinely jail people without even making such inquiries. If they do make such inquiries, they do so in a hollow proceeding in which the accused is simply called “dangerous” or the prosecution misuses “risk assessment tools” to justify denying bail. Jailing a person solely because he or she cannot make payment is a violation of their rights. Given the government’s seemingly lax standards for determining the necessity of pretrial detention, coupled with the fact that judges routinely ignore the law regarding the pretrial release, Alec’s lawsuits have been successful, disrupting the status quo and throwing a life raft to the poor and powerless who become easy prey.
Alec was struck by the fact that such a pervasive practice could simultaneously be so normal and so unconstitutional, as the unconstitutional practice is shamelessly employed in practically every courtroom in the U.S.
When you hear someone talk about getting rid of the cash bail system, the argument is met with a hysterical counter-argument. The other side oversimplifies: “You mean you want to just release murderers and rapists back into the community so they can continue to murder and rape?” Plainly, such an oversimplified argument is fallacious. Alec not only sheds light on the U.S. Constitution’s promise of “innocent until proven guilty,” but he also considers the human toll of such widespread unconstitutional practices.
The consequences of a punitive system that ignores the law dictating pretrial detention conditions are hardly insignificant. When considering the community toll of such practices, we must also remember that people are routinely arrested for petty crimes that require, say, $500 to $1000 for bail; but for lack of these funds, they must remain in jail until their case is resolved, which could take years. Sitting in county jail is no small thing. As Alex mentioned in his book, Usual Cruelty, one man had spent three years in jail on a drug possession charge because he could not pay $500 for his release while he waited for the state to run lab tests on the small amount of alleged drugs that led to his arrest. As one of Alec’s lawsuits proved, in Harris County, Texas, 55 human beings actually died in the local jail in downtown Houston because they were too poor to buy their release before trial.
These poor and powerless people are steamrolled by the justice system; they do not have a voice. Fortunately, Alec has dedicated his career to serving as their voice. He took a stand against the punishment bureaucracy and has launched effective attacks on their complete and total disregard for both the law and human life. Alec recently won a lawsuit in Harris County, Texas, that will save almost 20,000 people from being jailed each year in the Houston metro area alone.
The response to standing up for “criminals” is visceral. Still, Alec continues his quest. Every member of the opposition has a horror story in which a murderer was released on bail, only to go out and murder again. But Alec’s position is not that every person should be released. His position is in accord with the U.S. Constitution: people are innocent until proven guilty. Under the laws of the United States, unless the government can—through a meaningful hearing in which the accused has an attorney—legitimately prove that the accused is a “danger to the public” or a “flight risk,” keeping the accused in jail until he is convicted based purely on the fact that is too poor to raise the bail money is unconstitutional.
More than that, it is inhumane. It wreaks utter havoc on people’s lives. It causes emotional and physical problems. People are crushed. They practically disappear from society. They lose their jobs, houses, and cars. Their credit is ruined. It strains their marriages. And young children go without necessary care and supervision. It’s impossible to quantify the harm that our cash bail system causes. Until Alec stepped in, no one dared to sue the judges, prosecutors, sheriffs, cities, counties, states, and so on. It was so normal that even attorneys were blind to it.
The unfortunate truth is that as it is, the cash bail system is not a problem for most people who oppose releasing the accused without bail. First, they don’t see themselves as “criminals” and, second, if they are arrested for something relatively petty, they can easily post $500 or $1000 for bail—they don’t have to sit in county jail for what could easily amount to a year or more. Does the presumption of innocence only apply to affluent white people? Does it only apply to affluent people in general? People want the presumption of innocence for themselves and their families, but they demand that the real “criminals” be locked away for years until they get their day in court.
These people want a two-tiered justice system.
Of course, everyone wants no-mercy, punitive “justice” doled out until it’s their kid who was caught with a little weed, or their spouse who had one too many glasses of wine and decided to drive, or their friend who didn’t report all of his income—then, well, that’s a different story. Then, the Constitution is relevant.
What if a young nurse who was a single mom had twin two-year-old baby girls, but she hired a babysitter so she could enjoy a night out with the girls. And what if she had just one too many glasses of wine during the much-needed girls’ night out and so she was arrested for a DWI.
Can you imagine what would happen to her if she didn’t have the bail money? She would likely sit in county jail for a year, waiting on her case to be handled. What would that do to her life, a young nurse who has newborn babies? It would destroy it. But, more than that, she would be emotionally damaged, despondent.
Oh, now the cash bail system is perceived as cruel or unfair. But when it’s a poor Black woman, well, lock that “criminal” up.
Or, can you imagine if a young adult attending Harvard was arrested with a little bit of weed and had to sit in a disgusting county jail for 18 months to dispose of her case? Oh, the injustice. It would be screamed from the rooftops. She would be kicked out of school, for sure. Plus, that’s not exactly the kind of extracurricular activity that looks good for that summer internship application at a blue-chip brokerage house. More specifically, imagine if she were actually innocent; that is, suppose that she was riding in a car with a couple of guys and drugs were found under a seat, but the guys didn’t take responsibility. A police officer could easily arrest her. If she didn’t have say, $500 to post bail for the petty crime, she would quickly find herself living at the county jail. If the docket is clogged, taking her case to trial could easily take a year or two. In the meantime, her life would be destroyed because she couldn’t raise $500.
But that would never happen to her. She would spend a few hours in county jail. Her daddy would promptly hire an attorney and get the charges dismissed. She would go back to school at Harvard and resume her studies, after which she would get that summer internship on Wall Street or with that judge. Her arrest would become a distant memory—a mere footnote in her life. Meanwhile, the poor “criminal” who could not pay would rot in that county jail, losing everything along the way.
Perhaps even worse, the deck would be stacked against him upon his release. One mistake could—and often does—absolutely destroy the poor person’s life, even if he is found not guilty. His job would be gone after his release. In the meantime, who would watch the kids? Who would support them? Who would keep up with the bills? The car? The apartment? What kind of psychological damage would a year or more in the county do? Would he be raped or beaten? Thrown in solitary confinement?
Alec stands up for the impoverished people who get caught up in the criminal justice system.
He stands up against the judges and prosecutors and sheriffs and counties and cities and states who choose to ignore the law. He holds them accountable for their callousness and their unconstitutional practices.
Beyond these endeavors, Alec has shed the light of day on the dubious practices that operate within the cash bail system. As two of Alec’s successful lawsuits demonstrated, the bail money is profitable for various actors, including the judge. He won a pair of lawsuits in which he detailed how the judge’s financial conflict of interest in collecting bail money and in collecting a percentage of other fines and fees is unconstitutional.
Alec talks extensively about the massive chasm between how the law is written and how it is actually applied. In his book, he talks about the complicity of other attorneys who become blind to the atrocities of a brutal criminal justice system and who have become cavalier with human life by treating it with a “certain nonchalance.”
Alec is a fundamentally different kind of lawyer who is going against the grain. He treats people who have been arrested as real people with feelings and substance and families, not as nameless, faceless cattle. He is the antithesis of the typical criminal defense attorney who has gotten used to the cruelty of the system so much that it doesn’t even strike them as unfair or cruel anymore. He is one of The Justice Project’s favorites. Keep an eye on him.