Alec Karakatsanis is a civil rights lawyer and co-founder of Equal Justice Under Law, mostly serving indigent people. His recent article in the NY Times, President Obama's Department of Injustice , which discusses how tens of thousands of prisoners, mostly black, are being forced to serve longer sentences than they should, inspired this interview.
You just had an article published in the NY Times focusing on injustice perpetrated by the Obama Department of Justice. Can you describe the main issues, please.
The article focused on just one of the many egregious injustices that we inflict every day in the system that we call the "criminal justice" system. The crux of the issue is that the United States puts more human beings in cages than any society in the recorded history of the world. We put black people in cages at a rate six times that of South Africa during the height of Apartheid. The real story of that system is the story of how enormous amounts of human suffering are normalized--of how the system not only normalizes that suffering, but tolerates, rationalizes, justifies, and then reproduces it.
The particular disaster that I wrote about in the NY Times involves the federal courts admitting that, for decades, they had been misinterpreting the law and allowing tens of thousands of illegal sentences (the vast majority given to impoverished people and disproportionately to people of color). Those sentences were years, and sometimes decades, too long. You might think that a system calling itself the "justice" system would immediately rush to figure out who remained in prison on an illegal sentence so that it could immediately release them. Indeed, a couple of courts in various contexts ruled that the prisoners could petition for their release. Unfortunately, the Obama "Department of Justice" decided that it would be a terrible thing for so many unjustly imprisoned people to be released because it would disturb what it called "the finality" of criminal cases. As a result, the Obama DOJ successfully convinced some very willing federal judges to adopt rules that basically forbid people with illegal sentences from challenging those sentences in court, even if everyone agrees that they are now illegal.
Your NY Times article, President Obama's Department of Injustice, says,
"...for the last six years, his (Obama's) administration has worked repeatedly behind the scenes to ensure that tens of thousands of poor people -- disproportionately minorities -- languish in federal prison on sentences declared by the courts, and even the president himself, to be illegal and unjustifiable."
And you say, in the article,
"The Obama administration's fear of the political ramifications of thousands of poor minority prisoners being released at once around the country, what Justice William J. Brennan Jr. once called "a fear of too much justice," is the real justification."
What makes the sentences illegal and unjust? Tell us about prisoner Ezell Gilbert and Judge James Hill, and about your take on Obama's words and actions. How much does it cost to keep these tens of thousands imprisoned?
Basically, criminal defendants in the federal system can have their sentences increased if they have prior offenses that qualify for certain enhancements. The Supreme Court said that lower courts, in their zeal to participate in the cultural zeitgeist American mass incarceration, were improperly applying many enhancements in cases that they shouldn't have been, i.e. where a person's prior offenses should not have qualified for those enhancements.
Ezell Gilbert was one such human being. He tried at every turn to point out that the enhancement should not apply to him, and his sentence was increased by about 11 years because of the error. Judge Hill, a senior judge and WWII veteran ordered Mr. Gilbert released because, I think, he believed that the American legal system that he fought for does not allow a person to be kept in jail when everyone agrees his sentence is illegal. Mr. Gilbert was released and was doing well with his family for nearly a year. Then, at Obama's request, Judge Hill was overruled by other judges, who accepted Obama's argument that, if they released Mr. Gilbert, they would have to release many thousands of other prisoners, and that would create a risk that too many prisoners would try to disturb what the DOJ called the "finality" of their convictions. The DOJ re-arrested Mr. Gilbert and sent him back to his cage.
So, in public, Obama criticized unfair and irrational sentences at the same time as his lawyers worked to ensure that thousands of people would still have to serve those sentences. And he did almost the exact same thing after courts tried to release prisoners with illegal sentences for crack cocaine offenses.
The human costs are staggering: destroyed lives, broken families, sexual assault in prison, children without parents, the torture of solitary confinement, etc.. The financial costs are also significant--because the DOJ and the Bureau of Prisons have not even undertaken to estimate how many tens of thousands of people are serving illegal sentences, we don't know how many tens of millions of dollars this decision cost taxpayers.
Is the new US AG Loretta Lynch following in Eric Holder's footsteps, maintaining these injustices?
It's too early to tell whether she will try to correct some of the injustices inflicted by her predecessors. I hope she becomes a strong voice against the normalization of tremendous brutality that has characterized the DOJ bureaucracy in recent decades. I'm not optimistic, though, because her career prior to becoming Attorney General was as a US Attorney essentially contributing to these problems by vigorously pursuing the failed "war on drugs."
What are you and your organization doing to right these wrongs? What can readers do?
Our organization has actually been working mostly on a different set of issues: the rise of modern american debtors' prisons and the outrageous American money bail system. There are, for example, 500,000 human beings every night in American cages who are there solely because they cannot pay a monetary payment for their release. You can read about our projects at www.equaljusticeunderlaw.org. In general, we represent impoverished people all over the country in systemic civil rights challenges that try to end all of the ways that impoverished people are abused in our criminal legal system. We are trying to create a criminal system in which there is no longer an intolerable gap between our values and our realities--between our words and slogans and our everyday actions.
These injustices and the others that we work on are connected to the issues in Mr. Gilbert's case because they are all manifestations of a legal system and a culture, more broadly, that has become desensitized to the brutal treatment that we inflict on marginalized people.
Readers can get involved in these issues in their local communities by helping to organize for a more just and accountable legal system. Everyone should find out how these problems are manifesting themselves in their own cities and find the people who are working on these issues. Organizing and making sure these marginalized voices are being heard is difficult, tiring work, but it is essential. Nothing will change unless each of our communities builds this knowledge and this power organically.
Are there any members of congress amenable to the changes you are seeking, working with you? Have you brought these issues to the DNC and or to any of the presidential primary candidates?
I'm not involved in any kind of political activity. My work is almost exclusively representing clients living in poverty who are the victims of the way that our legal system is organized, and I occasionally try to write about their stories. I would hope that all members of Congress are amenable to demanding concrete changes immediately.
What can readers of this interview do to help? And any final thoughts you'd like to add?
These injustices exist only because we tolerate them. Every reader and every person in our society, at least in my view, has an obligation to fight for a society in which this everyday brutality does not exist, and in which our values are not just phrases that we say but also things that we do. These things (like thousands of people languishing in jail on illegal sentences) are happening because ordinary people are not informed about them and because ordinary people have not been moved to demand something different be done in their name. Every reader should read about these issues, visit a jail, talk to marginalized people in their community about their experiences with the legal system, and find the other people near them who are willing to come together and demand a better, more equal and just society.
Thanks so much.