Alec Karakatsanis and the Failure of American Lawyers

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.

Excuses for Increasing Justice System Anti-Men Gender Bias

In additional to broad public support for grotesque criminal suspicion of men, public discourse also supports proposals for increasing the already vastly disproportionate ratio of men in prison per woman in prison. These proposals emotively plead for “abolishing women’s prisons” and “stop imprisoning women.” The implicit effect would be to increase gender bias against men in the criminal justice system. Arguments for increasing anti-men criminal justice bias are astonishingly irrational.

Many more men than women are imprisoned. The ratio of men to women in prison has changed greatly over time. The current ratio of men to women in prison is much higher than historical ratios. The small number of women prisoners relative to men prisoners is a good reason for reducing the number of men prisoners. Raising the already high ratio of men to women in prison doesn’t promote equality in any reasonable sense.

Arguments for eliminating imprisonment of women depend on crude gender stereotyping. Women are stereotyped as less violent than men. Women are stereotyped as more important to their families than men. Women are stereotyped as being less criminally culpable than men. Gender stereotyping has been decisively rejected in the workplace, government, and the military. Bringing gender stereotyping into the justice system promotes injustice.

The deeply rooted public appeal of privileging women in criminal justice is cuttingly exemplified in the South African Supreme Court case President of the Republic of South Africa and Another v Hugo (1997). The great leader Nelson Mandela freed prisoners with an order that categorically discriminated against men. The South African Supreme Court upheld that order. Establishing equal justice under law for men and women will be extraordinarily difficult. But truth, justice, and equality are too important to be emptied of their meaning through anti-men gender bias.


Some recent articles advocating increasing anti-men gender bias in criminal justice:

  1. Patricia O’Brien, “We should stop putting women in jail. For anything.Washington Post, 6 November 2014. “Essentially, the case for closing women’s prisons is the same as the case for imprisoning fewer men. It is the case against the prison industrial complex and for community-based treatment where it works better than incarceration. But there is evidence that prison harms women more than men, so why not start there?” The “evidence” that prison harms women more than men is tendentious research in support of gender stereotypes. Many more men than women are imprisoned.  Imprisonment thus, in aggregate, directly harms men much more than women. Starting with reducing the harm to the group harmed much more would make sense.
  2. Jim Murphy, “Too many of Scotland’s women end up in jail – and that’s bad news for us all.the guardian, 18 January 2015. “Scotland sends too many women to jail.” In the mid-nineteenth century, Scotland held in prison about 2 men per woman. Scotland current holds in prison about 17 men per woman. Why has the ratio of men to women in prison risen so greatly? Why should policy intentionally seek to raise that ratio further?
  3. Lydia Smith, “Women in prison: It is equality to treat female offenders differently to men,” International Business Times, 29 January 2015. Equality means inequality, freedom means imprisonment, truth means lies, gender stereotyping is good when it increases anti-men gender bias in criminal justice. Welcome to Orwell’s world.
  4. Women’s prisons should close, says justice taskforce,” BBC News, 6 June 2011. That task force has all the incredibility of domestic violence research offering practical implications for criminal justice.

Title IX Adjudication Entrenches Gender Bias & Hostile Environment

Under pressure from the U.S. Department of Education’s Office for Civil Rights (OCR), U.S. higher-education institutions have established Title IX offices tasked exclusively with adjudicating claims of sexual assault and sexual harassment.  Expertise on sexual assault and sexual harassment is deeply associated with anti-men gender bias. Decades of anti-men gender bias is readily apparent in rape reporting and in public discussion of domestic violence. To provide education, to encourage use of reason, and to promote compassionate and responsible sexual activity, educational institutions should replace Title IX offices with broad-based Truth and Reconciliation Commissions on Gender and Punishment.

Harvard Law Professor Janet Halley provided a narrow view of the problem in her recent article, “Trading the Megaphone for the Gavel in Title IX Enforcement.” Professor Halley recounted:

I recently assisted a young man who was subjected by administrators at his small liberal arts university in Oregon to a month-long investigation into all his campus relationships, seeking information about his possible sexual misconduct in them (an immense invasion of his and his friends’ privacy), and who was ordered to stay away from a fellow student (cutting him off from his housing, his campus job, and educational opportunity) — all because he reminded her of the man who had raped her months before and thousands of miles away. He was found to be completely innocent of any sexual misconduct and was informed of the basis of the complaint against him only by accident and off-hand. But the stay-away order remained in place, and was so broadly drawn up that he was at constant risk of violating it and coming under discipline for that.

While representing gross injustice, that story also represents common practice in addressing claims of domestic violence. Every year in the U.S., about a million civil petitions for restraining orders are issued ex parte with only perfunctory review. They are effective instruments for promoting criminalization. Universities preemptively issuing restraining orders on their students is merely following the path of domestic violence polices that helped to generate mass incarceration in the U.S.

Under university policies, culpability for alcohol-facilitated sex is attributed to men de facto. Professor Halley cited Harvard’s sexual assault policy on incapacitation and impairment:

[W]hen a person is so impaired or incapacitated as to be incapable of requesting or inviting the conduct, conduct of a sexual nature is deemed unwelcome, provided that the Respondent knew or reasonably should have known of the person’s impairment or incapacity. The person may be impaired or incapacitated as a result of drugs or alcohol or for some other reason, such as sleep or unconsciousness. A Respondent’s impairment at the time of the incident as a result of drugs or alcohol does not, however, diminish the Respondent’s responsibility for sexual or gender-based harassment under this Policy.

Professor Halley noted the “steep asymmetry between the consequences of drinking and drug use for the complainant and for the respondent.” Suppose that a woman and a man have alcohol-facilitated sex. They then simultaneously file complaints. Which gets the excuse of being drunk, and which the culpability for sex? In practice, as Professor Halley pointed out, the policies are biased toward treating women as sex victims and men as sex perpetrators. That aligns with decades of anti-men gender bias in reporting rape.

Dealing with the problem of mutuality is more advanced with respect to domestic violence. A large share of incidents of domestic violence involve mutual acts of domestic violence. If co-resident parties both petition for a restraining order, which party gets to continue living in the shared home and which party is immediately evicted? The administrative solution is simply bureaucratic. Petitions for restraining orders are always time-stamped in some order. Whichever petition is stamped first determines which gets first consideration. The petition stamped second is denied ex parte treatment by law. With respect to arrests for domestic violence, the problem of mutuality is more difficult to deal with bureaucratically.  To address that problem, almost all states have passed primary aggressor laws that gender-profile men for arrest for domestic violence. Because of deeply entrenched gender stereotypes, formally gender-profiling men as the perpetrators of sexual assault probably isn’t necessary to create acute gender bias in adjudicating sexual assault.

Authorized teaching about sexual assault, like authorized teaching about domestic violence, represents discursive power, not true knowledge. Professor Halley described the PowerPoint slides shown as required Title IX training on sexual harassment polices at Harvard Law School in the fall of 2014. Other than quotations from policy documents, the slides presented “selected neurobiological research”:

The takeaway lesson of these pages is that a victim of sexual assault may experience trauma, which in turn causes neurological changes, which in turn can result in “tonic immobility.” Tonic immobility, in turn, can cause the victim to appear incoherent and to have emotional swings, memory fragmentation, and “flat affect. ” Her story “may come out fragmented or ‘sketchy,’” and she can be “[m]isinterpreted as being cavalier about [the event] or lying.” These problems, in turn, can cause police and sexual harassment investigators to dismiss serious claims, tragically because of symptoms of the trauma itself.

If the complainant coherent and reliable reports that she has been sexually assaulted, that’s evidence that she was sexually assaulted. If the complainant is incoherent and unreliable, that’s also evidence that she was sexually assaulted. Is it any wonder that ten times more men than women are currently held in U.S. prison and jails? Professor Halley insightful noted:

So far, that is the only training provided to Harvard personnel handling sexual harassment claims directed to the social and psychological dynamics surrounding sexual assault. It is 100% aimed to convince them to believe complainants, precisely when they seem unreliable and incoherent. Without disputing the importance of the insights included in this section of the training, one can ask: precisely what do they prove? Surely not a claim that, because a complainant appears incoherent and unreliable, she has been assaulted.

These biased policies polices are entirely consistent with the legal profession’s lack of concern about anti-men sex bias is the criminal justice system.

Persons discussing due process in sexual assault adjudications face a hostile environment. The hostile environment for discussion of important issues of criminal justice is deeply connected to the vastly disproportionate representation of men in prison and jails.


Citation: Janet Halley, “Trading the Megaphone for the Gavel in Title IX Enforcement” 128 HARV. L. REV. F. 103 (2015) at 116, 113,  109-10.

American Law Institute’s Sexual Assault Proposal: Massive Sex Criminalization

The American Law Institute is considering revisions to the sexual assault provisions of the U.S. Model Penal Code. The Model Penal Code provides expert legal guidance for the drafting of state criminal codes. As a memorandum from American Law Institute Members and Advisers indicates, the proposed sexual assault revisions imply massive sex criminalization.

Some additional points to consider:

  1. Changes the Model Penal Code played a key role in promoting broad, preemptive domestic violence emergency law that has been central to the rise of mass incarceration in the U.S. from 1980.
  2. Under reasonable parameters for deterrence, a massive expansion in criminalization of sexual assault will have large costs in incarceration and relatively small effect on sexual assault.
  3. The criminal justice system is highly biased against men. Reporting of sexual assault is highly biased against men. U.S. jails and prisons now hold ten time more men than women. Massively expanding criminalization of sexual assault will increase the already highly disproportionate incarceration of men.

The law profession has failed to bring good reason and objective expertise to criminal law. Grotesque anti-men gender stereotyping pervades discussion of domestic violence in law review articles. Discussion of sexual assault is even more biased. For example, a leading law review published an article proposing criminalizing what it defined as reckless sexual behavior. Despite being deeply flawed and displaying anti-men gender bigotry, this article attracted little critical peer review. The American Law Institute should promote the best thinking of the American legal profession, not the worst.

Most sexual victimization, like most violent victimization generally, isn’t punished through the criminal justice system. If evaluated without gender bias, sexual victimization is roughly equally balanced between women and men. Sexual criminalization, in contrast, is highly skewed toward men. Massively increasing sexual assault criminalization could greatly raise the already extraordinarily high incarceration prevalence and make even more unequal the already highly disproportionate incarceration of men.

Open Letter to Bipartisan Summit on Criminal Justice Reform

A wide range of leaders meet for the Bipartisan Summit on Criminal Justice Reform in Washington, DC, on March 26, 2015. The organizations #cut50, which aims to reduce the U.S. incarcerated population by 50% over the next ten years, and Gingrich Productions, headed by Newt Gingrich, produced the summit. Here’s an open letter to the organizers and participants in that summit.


Dear Civic Leaders,

No subject is more important than criminal justice, and no subject is more difficult to discuss. Difficulties come home particularly acutely for the issues of domestic violence and sexism. But these issues must be faced.

Harshly punitive, emergency domestic violence law that eviscerates normal due process has been enacted from the early 1980s. They have remarkably changed domestic security — the security of persons within their own homes. These new domestic violence laws and policies have also been central to the rise of mass incarceration.

State actions under domestic violence emergency law now account for a majority of justice system actions addressing interpersonal violence. Criminal justice reform cannot be undertaken seriously without seriously addressing domestic violence law and policy. We hope that you will figure out how to address domestic violence in promoting criminal justice reform.

Sincerely,

Communicating with Prisoners Collective

Public Safety Performance Project should Address Domestic Violence

An open letter to leaders of the Pew Charitable Trusts Public Safety Performance Project


Dear Adam Gelb, Jake Horowitz, and Craig Prins,

Your work on rationalizing the criminal justice system seems to be missing the elephant in the room: domestic violence policies. Harshly punitive domestic violence emergency laws appear to be central to the rise of mass incarceration in the U.S. Please consider the large amount of data made freely available at acrosswalls.org.

In terms of rational policy, public deliberation has performed astonishingly poorly in assessing the problem of domestic violence. The problem is not just sensational news reporting. Law review articles have frequently made absurd claims about domestic violence against women. The U.S. Department of Justice’s National Institute of Justice published, with the usually disclaimer, a ninety-six page Special Report entitled Practical Implications of Current Domestic Violence Research: For Law Enforcement, Prosecutors and Judges. That report is amazing evidence of anti-men gender bigotry in doing and applying research in criminal justice policy. A rational and just criminal justice system cannot be established without honest, open analysis of these problems.

We applaud your work to improve the criminal justice system. The problems of domestic violence in criminal justice policy are daunting. But inability to address them rationally has been disastrous.

Sincerely,

Communicating with Prisoners Collective

Propaganda and Modern Authoritarianism through Criminal Injustice

Professors Sergei Guriev and Daniel Treisman recently produced a paper entitled, “How Modern Dictators Survive: Co-optation, Censorship, Propaganda, and Repression.” We believe that this paper contains important ideas, but understands them too narrowly. We sent the professors the following email.


Dear Professors Guriev and Treisman,

In considering the relationship between propaganda and the new authoritarianism, we urge you to consider developments in U.S. criminal justice. Since about 1980, U.S. incarceration prevalence has increased greatly. The U.S. incarceration prevalence is now five times greater than in the rest of the world. U.S. incarceration prevalence now is five times greater than in England and Wales. Here’s some analysis, with links to full supporting data:

rise of mass incarceration in the U.S. since 1980

Widely disseminated domestic violence propaganda plausibly contributed significantly to the massive increase in U.S. incarceration prevalence. Here’s some analysis, with links to full supporting data:

domestic violence polices associated with rise in mass incarceration

Your paper on propaganda and dictators concludes:

As education and information spread to a broader segment of the population, it becomes harder to control how this informed elite communicates with the masses — either through co-optation or through censorship.

A comparative analysis of the dissemination of domestic violence propaganda provides no support for that claim. Here’s that analysis, with links to full supporting data:

domestic violence propaganda across different fields of public discourse

We encourage you to incorporate in your analysis of the dissemination of propaganda better understanding of evolved human nature, including sex differences.

Dictatorships create justified, wide-spread fear of arbitrary punishment. Dictatorship is not necessary, however, to generate such fear. Arbitrary, corrupt criminal justice and mass incarceration are sufficient to generate fear like that under dictators.

Sincerely,

Communicating with Prisoners Collective

open letter to Jeannie Suk on At Home in the Law

Harvard Law Professor Jeannie Suk’s 2009 book, At Home in the Law, is a leading legal analysis of the criminal justice response to domestic violence.  The Communicating with Prisoners Collective reviewed Suk’s book. A member also sent Suk the following email (bare links have been made into relevant text).


Dear Professor Suk,

Thank you for your courageous work on criminal law and domestic violence. Thank you for speaking publicly about the difficulties in sharing knowledge and legal expertise concerning rape. Being at home in a law school, like other homes, has disappointing, frustrating, and depressing times.

We have studied in detail your book At Home in the Law. You might find interesting our review of your book, and our review of reviews of your book. See:

review of Jeannie Suk’s book, At Home in the Law

Some reviews raised factual questions about your work. Those questions seem to us to be superficially and unartfully rhetorical. But if you are interested in pursuing the factual issues further, we have collected a large amount of data concerning the issues you addressed. See:

data and statistics on criminal justice response to domestic violence

Regarding the difficulties of teaching rape, we were traumatized by reading an article on rape in the University of Chicago Law Review by leading law professors. Here’s some analysis of that article:

law professors’ reckless proposal for criminalizing sexual conduct

Here’s some additional scholarship that is deeply disturbing:

constituting men as the criminal sex under law

Examining and thinking about much public discussion of domestic violence should be traumatizing. Please dare to consider:

promoting criminal suspicion of men within the home across major spheres of public discourse

We wish you intellectual courage and joy in the coming year.

Sincerely

Communicating with Prisoners Collective

College Sexual Harassment Polices Following Domestic Violence Policies

In October, 2014, twenty-eight Harvard Law faculty members issued a statement strongly objecting to Harvard’s new Sexual Harassment Policy and Procedures.  This open letter urges the Harvard Law faculty to consider this issue more broadly.


Dear Harvard Law Professors,

Thank you for speaking out for fairness in Harvard’s sexual harassment policies and procedures.

Please consider parallels with laws and procedures concerning domestic violence. Domestic violence emergency law doesn’t require judges to weigh carefully, ex ante, case-specific facts before suspending normal due process of law. Domestic-violence law gives everyone de facto liberty to suspend other persons’ civil liberties through ex-parte civil petitions. Domestic-violence rhetoric emphasizes the “cycle” of domestic violence, repeated battering despite the appearance of peace, hidden terrorism, and the ever-present threat of a fatal domestic assault. Socially constructed public belief in a perpetual, invisible state of emergency within other persons’ households has prompted broad public surrender of normal rule of law in considering claims of domestic violence.

The legal academy has provided very little critical analysis of the development of domestic violence emergency law.  Please consider that law reviews have performed worse than other deliberative fields from 1986 to 2010 in a basic test of public reason concerning domestic violence. See:

http://acrosswalls.org/comparative-analysis-domestic-violence/

Failure of public reason in the law profession in addressing domestic violence has contributed significantly to the rise of mass incarceration in the U.S.  See:

http://acrosswalls.org/domestic-violence-policies-mass-incarceration/

Lack of respect for basic principles of law and good public reason in addressing sexual harassment and rape threaten to exacerbate major failings of domestic violence policies.  Please consider how the new policy direction at Harvard relates to deeper problems in law and the legal profession.

Sincerely,

Communicating with Prisoners Collective

Law Profs Ignore Facts in Discussing Sexual Assault Procedures

Law professors at the University of Pennsylvania law school recently issued an open letter entitled “Sexual assault complaints: protecting complainants and accused students at universities.” Like the joint letter from fourteen attorneys to UVA President Therea Sullivan, the Penn law professors’ letter provides well-reasoned, detail critique of the injustices of policies for addressing sexual assault. We applaud the Penn law professors’ statement. The Penn law professors have shown far more courage than the vast majority of their law professor colleagues in addressing fundamental issues directly relevant to teaching law.

Serious consideration of new policies for adjudicating sexual assaults at universities must go further. The first point of the Penn law professors’ letter assumes that a sexual-assault crisis exists:

Although our comments and criticisms focus on universities’ procedures for adjudicating sexual assault complaints, we recognize the far more important issue: how can universities help to change the culture and attitudes that lead to sexual assaults? Our first priority should be to reduce the frequency of assaults.

No matter what level of assaults exists beyond the unattainable utopia of zero, the frequency of assaults can always be reduced. Subordinating fundamental fairness to the “first priority” of reducing the frequency of assaults requires justification in facts of real, present circumstances.

Dominant, deeply entrenched interests have greatly distorted the facts about sexual victimization. Facts have been systematically distorted in two ways:

  1. Sexual victimization of men have been ignored, obscured, or not counted as real rape.
  2. Sexual victimization of women has been greatly inflated through national survey design changes over more than two decades.

The claim that “one in five young women experiences rape during college” has been widely disseminated through authoritative sources. On close examination, that figure completely lacks  a reasonable factual basis. Important issues of adjudicating rape / sexual assault / sexual victimization have been obscured within technical issues of survey methodology. Excessive use of alcohol and drugs are a serious problem on and off college campuses. Is there a sexual-assault crisis on college campuses sufficiently extreme to have higher priority than fundamental fairness in adjudicating those serious criminal claims? The answer to that question is far from factually clear.

In considering claims of a sexual-assault crises on campus, important social facts have gone largely unrecognized. These facts, which are beyond reasonable dispute, should be recognized and should prompt important questions:

  1. In 2009-2010, 46% more college degrees were awarded to women than to men. Is a hostile environment for men on college campus contributing to this highly gender-disproportionate degree distribution?
  2. In 2010, about 10 times as many men were held in prisons and jails as were women. Evidence of anti-men gender discrimination in the criminal justice system is compelling and largely ignored. What is being done to eliminate anti-men gender bias in campus adjudications of sexual assault claims?
  3. Since the early 1990s, sensational, false claims  about the extent of domestic violence against women have been prevalent in public discourse. Law reviews have performed worse than the U.S. Congress in bringing reason to claims about domestic violence against women. Changes in domestic violence plausibly contributed to the development of the extraordinarily high U.S. incarceration prevalence. Is this policy experience being studied seriously beyond appallingly bigoted scholarship? Is true understanding of domestic violence emergency law informing wide ranging discussion of new sexual assault policies?

The new, fundamentally unfair sexual assault policies that the U.S. Department of Education is pushing on colleges and universities aren’t the result of a few crazed federal bureaucrats. Those policies are deeply connected to the legal academy. The legal academy is deeply complicit in constituting men as the criminal sex and facilitating the U.S.’s world-leading prevalence of incarceration.