Catching up with Alec Karakatsanis on the Frontlines of the Covid-19 Legal Response

Photo by Eli Meir Kaplan.

Alec Karakatsanis and his team at Civil Rights Corps have been at the forefront of efforts to reform the justice system and lower incarceration rates through litigation and advocacy. A critical component of this work has been filing legal challenges to bail systems across the nation that keep people in pretrial detention if they cannot afford to pay bail. Not surprisingly, Karakatsanis’ mission to free individuals “trapped in cages” has taken on an intensifying urgency this year in light of the spread of Covid-19 in jails and prisons. As it has with other issues, Civil Rights Corps has partnered with a range of civil rights nonprofits to sue for the release of individuals and push for improvements in conditions to limit the spread of Covid-19. The organization has also developed and distributed recommendations to various agencies to limit the pandemic’s effect on individuals caught up in the justice system.

You can read more about Karakatsanis in our 2018 feature, as well as a recent article he wrote on police reform in reaction to the ongoing protests. His book, "Usual Cruelty: The Complicity of Lawyers in the Criminal Injustice System," came out last year.

Lawdragon: Your team is doing a lot right now with Covid-19. Is it possible to summarize where things are at from your point of view in this effort?

Alec Karakatsanis: The Covid-19 pandemic is ravaging our jails and prisons. It’s important to understand that this viral infection is taking place in the context of an American jail and prison system that is barbaric: Every day, for decades, our jails and prisons have become places of squalor, physical violence, and medical neglect. People are deprived of fresh air and sunlight, and they must pay multibillion-dollar corporations if they want to communicate with their loved ones. Cells in most of our 3,163 local jails are covered in mucus, blood, feces, urine, and mold. The people confined in these conditions are already medically vulnerable because of their previous medical conditions and poverty. All of this is a recipe for disaster.

Against this backdrop, we have been part of incredible legal teams to bring class action lawsuits relating to Covid on behalf of the human beings confined in the large jail systems of Miami, Chicago, Dallas, Los Angeles, Houston, Wayne County and Oakland County, Michigan, and Prince Georges County, Maryland. We have had some success in improving conditions through the lawsuits, but by and large the legal system has entirely failed to protect the human beings confined in our jails. After we filed the lawsuit in Chicago, for example, seven people died from Covid in the Cook County jail.

LD: Where might we be in terms of how long this legal effort will last? Or, given the vast number of different jurisdictions and agencies involved, where are you in understanding the full scope and complexity of the problem?

AK: Many jurisdictions have significantly reduced their jail populations since Covid, mostly through making fewer arrests, but also through some changes in bail policy. Although we are now seeing jail populations increase again at an alarming rate, it is my hope that Covid will change the culture of the bail-setting process in the following way that has been so elusive for many years – getting judges, prosecutors, and defense lawyers to appreciate the everyday brutality of taking a presumptively innocent person and putting her into a cage. Although the person is removed from her children, home, family, job, school, church, and community and placed in a dangerous place – at great public expense – this pretrial detention decision has received almost no scrutiny in most courts for the past 40 years.

I have watched thousands of bail hearings across the country, and they typically last seconds – seconds in which a person’s entire life can be taken away from them if they are too poor to pay. All of this has been done with almost no thought, examination of empirical evidence, or reckoning with the devastating human costs. There is a chance that this Covid-19 moment will change the way people think about jails and pretrial detention, and bring more of a focus to evidence-based public health alternatives to human caging.

The scope of this problem is enormous, but it is not very complicated. We need to be spending less money on pretrial caging, and more money on the things the evidence tells us works: safe housing, addiction treatment, social worker services, educational programming, and access to meaningful work.

LD: It’s clear that this problem would be best addressed by state and local agencies acting proactively or at least collaboratively with public defenders. Do you have a sense of how much of this national effort to save lives will come down to that type of collaboration versus public defenders and nonprofits filing lawsuits and litigating for releases?

AK: We need a fundamental transformation in the role of public defenders. Public defenders have enormous capacity to build relationships with the communities they work with, and untapped potential in working with journalists, artists, community leaders, nurses, doctors, social workers, teachers, faith leaders, and local and state legislators to tell a far more accurate and compelling narrative of what our criminal punishment bureaucracy is and what it does to poor communities, especially black communities. I think this relationship-building work every single day is far more important than a few non-profits filing some lawsuits. It is a battle for the soul of our legal system and, finally, to more closely merge its stated values on its monuments to the everyday reality of its criminal courtrooms.

LD: Let’s turn to the recent class actions you filed. This might be obvious, but how are you determining when and where to file such actions? How are you getting clear pictures of what it is like in these facilities, both from the inmate and the guard perspective?

AK: The jail conditions are horrific essentially everywhere. We have brought cases in particular locations where the organizing by people in jails and organizers in the community is very robust – where there is a local movement to demand much broader changes to how jails and police have been operating. And, we have focused on places with very large jail populations. Also, of course, we are limited by the small amount of resources we have compared to the scope of the problem.

LD: I know the Miami Dade action seeks an order requiring defendants to implement critical Covid-19 guidelines. Do you have an understanding that, in some facilities, safe social distancing is possible but not being implemented? Or is it just impossible in jails and prisons generally speaking?

AK: It is a combination. In most jails, they are not implementing even the social distancing that is feasible, and the systems of profound medical neglect have only gotten worse. It’s been devastating to watch. But mostly, our jails and prisons are so overcrowded – and, architecturally, they have been designed to maximize pain, discomfort, and surveillance, not to promote public health.  There is terrible hygiene, ventilation, a high percentage of preexisting medical conditions, serious mental health problems, and massive indifference to confined people as human beings.  The combination of these factors makes jails breeding grounds for a viral infection like the novel coronavirus.

LD: Some segments of our society will be very concerned about incarcerated individuals being released. Can you talk about how you are identifying classes and sub-classes of inmates to prioritize who gets out?

AK: The vast majority of confined human beings in our society pose absolutely no threat to anyone in the community.  As I discuss in my book "Usual Cruelty," the overwhelming empirical evidence actually shows that putting people in jail increases the likelihood that people will commit crime in the future. Only 5 percent of all police arrests every year are for crimes the FBI calls serious “violent” crimes. The hard reality is that there is absolutely no public safety justification for the U.S. incarceration rate quintupling since 1980 and reaching 5-10 times the rate of comparable countries.

LD: Do you have ways of managing stress that you can share?

AK: I try, if I get a few minutes to play the piano, make a painting, read/write some poetry, or spend a few minutes talking to friends on the phone. During this strange and isolating time, and with work that can be devastating, it’s important to try to remember some of the things that give the world great beauty.