Photo by Eli Meir Kaplan.
Few lawyers in the Lawdragon 500 are having as significant an impact on our justice system as Alec Karakatsanis, the founder and executive director of Washington, D.C.-based Civil Rights Corps. The 2008 Harvard Law graduate and his 10-lawyer team are leading challenges to the business-as-usual injustices that Karakatsanis witnessed in his years as a public defender. In 2017, his organization, along with The Texas Defense Project and pro bono counsel Susman Godfrey, won a massive victory in Houston federal court with a ruling that the Harris County cash-bail system for low-level offenses was unconstitutional. (The 5th U.S. Circuit Court of Appeals has since heard oral arguments on the county’s appeal.)
The class action represents one major prong of the Corps’ work – ending systemic pretrial detentions of people who cannot afford to pay bail. Other pillars of the core mission are lawsuits that challenge for-profit probation systems, the incarceration of people who cannot pay court fees and fines, and police raids that traumatize families. Most recently, Civil Rights Corps launched its “Prosecutor Project” to challenge prosecutorial abuses. In October, it partnered with the ACLU to sue the Orleans Parish District Attorney’s Office, alleging an unconstitutional policy to coerce and imprison crime victims and witnesses.
Lawdragon: Can you talk about why you founded this organization? I assume your time as a public defender played a role.
Alec Karakatsanis: You can study in books and articles in an abstract way about all of the injustice in the criminal system. You can know the statistics and develop views about it, but it’s very hard to appreciate how crushing and unjust the American criminal system has become until you see it firsthand – and it’s a whole other level for our clients and their families who experience it. I don’t want to make it sound like I have any notion of what it’s like to experience it, but as a public defender, you develop these very strong relationships with human beings, and you watch them crushed in an extraordinarily unjust process, in a society that is caging people at rates that are unprecedented in the recorded history of the modern world.
In order to accomplish that mass human caging, the government had to create systems to process people very efficiently and effectively. It’s actually a pretty impressive bureaucratic achievement. As a public defender, you get to watch that machine operate, and you get to feel what it’s like. It was an extraordinarily difficult experience for me in the year-and-a-half I was a public defender in Alabama, and the three years I was a public defender in Washington, D.C.
LD: Like you said, you had read about these issues and understood them to some extent, but were you surprised at what you saw?
AK: I knew at some intellectual level what the system was doing. 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.
LD: How did this feed into the mission of your Civil Rights Corps?
AK: We want to attack injustices in the American criminal system in several key ways. First, by using the stories of the people affected by these practices to change the narrative about what our legal system is and what it’s doing to people, what its purposes are, and what its purposes should be – to re-sensitize people to the enormous brutality inherent in the way the American criminal justice system operates every day. Second, to use civil rights litigation to tell those stories, and to bring really intellectually rigorous legal cases that vindicate rights, and that make real changes and create real pressure on the system to be different.
We’re interested in challenging systemic injustice, and the most obvious ways in which the system is unjust is the way that it treats marginalized, impoverished people, and people of color. People who, in many ways since the founding of this country, our legal system has been designed to oppress.
LD: Most people would find the facts of some of your cases – someone’s life getting ruined by an unpaid ticket, for instance – as ludicrous, and see the injustice. Do these practices persist because most people don’t really know these things are going on?
AK: I think the biggest problem is that ordinary Americans just don’t know what the system is doing in their name. For example, if you tell people that in Tennessee you can get a traffic ticket, maybe because of the color of your skin, or let’s say it’s for running a stop sign. Because of the state’s reliance on fines and fees, there’s a minimal fine, and then a number of fees and costs that are associated with it. Let’s say it ends up being $250 or $300. If you can pay that right away, like I could probably, then you’re basically done. Your case is closed, you go on with your life.
If you can’t pay it – and this is actually what happened to someone in one of our cases – you’re put on private probation for the purpose of paying off your debt. Instead of getting help with this, or services so that you can get a job or a higher paying job, you’re told: “You’re going to owe $45 a month in addition to the fine, just for the privilege of being on probation, and anytime we want to drug test you, that’s another $20 you have to pay.” After a year, maybe you’ve scrounged up from your food stamps and Social Security benefits, or a minimum wage job, so you’ve now paid $500 toward your debt when you only owed $250. And all of that money has been taken by the private probation company, so you still owe your initial ticket. So your probation is revoked, you’re thrown in jail, and you’re put back on another year of probation, with extra fees attached for the time you were in jail and your revocation.
I don’t think a lot of Americans understand that there are thousands of people who are just stuck on perpetual probation where money is being extracted from them. They don’t understand it, and so I firmly believe that the biggest problem is that people don’t know these stories, and they don’t know it’s happening to people.
LD: How have you decided what cases to bring?
AK: When I first started doing this work, I would just go around from town to town, and sit in the back of courtrooms, and watch and take notes. I would interview people as they were coming out of court, or in jails, and try to design challenges to these systems. A few years later, now that we’ve done this in dozens of places, people know who we are and the case-finding process is a lot different. Now, we get contacted by community groups, lawyers, even sometimes government officials saying, “We’ve got real problems here. Can you come help us? Can you investigate this? Can you look into this?” Or corporate law firms contact us, and say, “Through our pro bono work in these communities, we’ve seen these terrible problems. Is there a way we can do something more systemic?”
We also have people who are incarcerated and their families reaching out to us all the time, as well. It’s a real balancing test. It’s a question of: Where can we make the most difference? Where can we tell a story that will have an impact on the most people? Where can our limited resources be leveraged to create real change? Where do we have really good local partners who can help ensure that we don’t just bring a one-off court case for the sake of winning a case, but where we can start a movement that changes the practices for good?
LD: When looking at your focus areas – the litigation over wealth-based bond systems, for-profit probation and the debtors’ prisons – all three are often wrapped up together.
AK: Definitely. Some of our cases involve all three.
LD: Where does the litigation focusing on police raids fit into what you do?
AK: One of the main themes of our work is challenging things that are so normalized, and such an everyday part of the criminal system, that they’re often overlooked. Police home raids are one of those things. Most Americans don’t experience a violent police home raid. In the District of Columbia, where we brought seven cases, 99.5% to 100% of these raids are happening in the homes of black families, according to the Washington Post and our own research.
Because nothing is found in most of these raids, there is never even a criminal case against these people. So there is no criminal case in which someone files a suppression motion to challenge what happened. And, in a lot of these cases, there isn’t any kind of serious injury that might prompt a regular civil lawyer to take the case for money. It’s just the everyday. Because the voices of the people who it’s happening to aren’t thought of as relevant or powerful in our discourse, people don’t really know about it.
No one challenges it, and so it becomes normalized. We try to take on system-wide policies and practices that, until they’re challenged, people don’t recognize them as abhorrent or brutal. The militarization of police, the police home invasion work that we’ve done on behalf of black families in D.C., is just another example of our work trying to use the experiences and stories of people in the community to educate the broader public on what our government officials are doing in our name.
LD: What is your goal or plan for expanding your work? Do you want to grow it to a point where your organization is not even involved in a case, at least not directly, and instead it’s a like-minded group that you know about that is building off what you’ve done in another jurisdiction? Is that how this grows?
AK: I think so. We need such dramatic changes, we need so many of these cases and so many local movements, that we couldn’t ever hope to be involved in all of them. We’re just hoping to play a small role, as a catalyst, and then as a resource for other people who are bringing these cases and want to benefit from some of the work that we’ve done. In an ideal world, we’ll continue doing our cases. We’ll continue as much as possible with our partnerships, with organizations and lawyers all over the country. But we certainly hope that many, many more people would be involved in this without even working with us.
LD: What’s the Prosecutor Project about?
AK: That’s a new project that we just started in 2017 that we hope will expose ways in which a fundamental lack of accountability has corrupted the pursuit of American justice. We’ll be focusing on a lot of the patterns and practices of illegal prosecutorial misconduct, such as the withholding of exculpatory evidence, that characterize the way cases are prosecuted in virtually every American jurisdiction. Another component of the project will be working with prosecutors themselves to develop better policies.
There’s a new wave of prosecutors who are more conscious to some of the ways in which they create these problems and genuinely want to improve their policies. We do have a lot of great conversations with prosecutors around the country about simple things they can do policy-wise to dramatically improve the lives of people in their community, and to improve their own mission of community safety. Part of it will involve having prosecutors develop a broader notion of what community safety is, so that it means something different from the very narrow definition of the term. In our view, a safe community is one in which all human beings can flourish, and it’s free of coercion in all of its forms – free of racial, economic, government-sponsored violence. One in which there is accountability and healing for trauma that occurs, but not punishment for the sake of punishment that actually makes us less safe.
We want to change the way prosecutors think about things like bail, and fines and fees, the money-based aspect of the system, and combating this growing movement of revenue-generating diversion programs that many DA’s offices have started to run around the country whereby they tell people that they will prosecute them unless they pay them a certain amount of money. We’re going to be challenging things like that, and also lifting up the work of prosecutors who are doing really good things for their community.
LD: You wrote in your article for the Harvard Law Review about a problem you see with the distribution of legal work. Is it that, contrary to common perception, there are not enough lawyers given that many people who need one can’t get one?
AK: I don’t think I would ever say that there are not enough lawyers. I think the problem is more with the distribution of legal labor. Even in our client’s cases, what’s so fundamentally demoralizing is that they can have really great lawyers who are helping them out with this one particular issue, but they are facing all kinds of other problems for which they really need civil legal services. Maybe it’s losing a child, or a problem with their landlord, or immigration issues, or someone wronged them in some way and they have no way of taking advantage of the legal system, or just needing advice to create a contract with someone for their business. Or maybe they have a job, but their boss in the company is not paying them fairly, or not complying with safety regulations.
There’s so many areas in which the poor just don’t have access to our legal system, and so the rights that we’ve created in our society aren’t meaningful because there is no one there to enforce them. The same is true in a criminal context. We have a two-tiered legal system. We have a society in which, if a rich person is charged with a crime, they can get the best defense money can buy. If you’re poor, in a lot of cities, you’re one of three- or four-hundred cases that an overworked public defender has. Nobody even expects that anyone will lift a finger to do a single minute’s worth of investigation in your case. You’re thrown into a factory that manufactures guilty pleas, and so all of this is crying out for the kind of zealous advocate that the Constitution requires in criminal cases, and for the kind of zealous advocate that our society should provide in important civil cases.
LD: And there are enough lawyers to do this, you think.
AK: There are a lot of lawyers out there. Some of my law firm friends have joked to me that on some of their cases there’s eight or nine lawyers when probably one lawyer is required. There are whole courtrooms, every single day, in every single American city where dozens and dozens of people would really benefit from one lawyer. I think, fundamentally, our legal system and the distribution of lawyers corresponds to the broader set of inequalities that characterize our society. In a very, very unequal society, you are likely to find a very, very unequal distribution of lawyers. It would be nice if lawyers could help take the lead in trying to create a society that’s more consistent with our values than the one that we have.