The Harvard Law Review Forum recently published Alec Karakatsanis’s wide-ranging, scathing critique of U.S. criminal justice. Karakatsanis, a co-founder of the civil rights organization Equal Justice Under Law, is a 2008 graduate of Harvard Law School. In his article entitled “Policing, Mass Imprisonment, and the Failure of American Lawyers,” Karakatsanis connects the disastrous state of American criminal justice to failures of legal reasoning and legal practice. Karakatsanis urges “rigorous argument based on evidence and logic.”
Here’s a simple test for intellectual integrity in critiquing criminal justice. Does the critique take seriously anti-men gender bias in criminal justice? Does the critique question holding behind bars ten times more men than women? Does the critique recognize that domestic violence policies greatly increased the scope of violent criminalization and have been central to the rise of mass incarceration? If the critique doesn’t address these issues, it’s imprisoned in a status-seeking constraint of silence. It’s suspect for elite patterns of moral posing. It’s part of a major failure of legal reasoning and legal practice.
Karakatsanis’s article fails the simple test for intellectual integrity in critiquing criminal justice. It has nothing to say about gender. Saying nothing about gender scores higher in intellectual rigor that deploying gender stereotypes to argue that women categorically should not be imprisoned. But the sex ratio of persons in prison is not some stable, natural feature of the carceral world. The sex ratio among persons imprisoned varies widely internationally and historically. Scotland in the mid-nineteenth-century held about 2 men in prison per woman in prison. England and Wales in 1970 had about 40 men in prison per woman in prison. The U.S. currently holds about 10 men in prison per woman in prison. Ignoring the sex ratio of imprisonment and anti-men gender bias in criminal justice lacks intellectual integrity.
The status-seeking constraint on intellectual integrity appears explicitly at one point in Karakatsanis’s article. He wrote:
The violent crime that forms the ostensible justification for modern policing tactics is a small problem compared to other causes of death and trauma, such as inadequate nutrition or campus sexual assault or any number of other actions that we don’t think of as “crime” to be fought, even when they are illegal.
Notice the odd position of “campus sexual assault.” It’s positioned in contrast to “violent crime.” That’s nonsensical: sexual assault is a violent crime. Moreover, categorizing campus sexual assault among actions “we don’t think of as ‘crime'” is ludicrous. Universities across American have enacted sexual assault policies that demonstrate contempt for due process and fundamental fairness for men targeted as perpetrators of sexual assault. Arguments lacking evidence and logic have created lynch-mob justice in addressing campus sexual assault. That problem represents a serious failure of American lawyers. It’s closely connected to the law profession’s failures in addressing domestic violence.
Effective sentiments of shame relate to feasible acts of responsibility. Karakatsanis declared:
We must totally rethink the distribution of legal labor in order to force the system of modern policing adequately to internalize the costs of the human rights violations on which it is predicated.
Meanwhile, the American Law Institute recently considered a revision of the sexual assault provisions of the Model Penal Code. The proposed revision would greatly expand sex criminalization. American lawyers are directly responsible for the expert legal views of the American Law Institute. Decisively rejecting the shameful proposal before the American Law Institute and directing that organization to address anti-men gender bias in criminal justice doesn’t require any major rethinking of the distribution of legal labor. Lawyers merely must exercise their profession with intellectual integrity.
Citation: Alec Karakatsanis, “Policing, Mass Imprisonment, and the Failure of American Lawyers” 128 HARV. L. REV. F. 253 (2015) at 254, 258, 267.