Karakatsanis on a Fear of Too Much Justice

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An important op-ed by Systemic Justice Project Board of Advisors member Alec Karakatsanis on the way that political fear is preventing illegally sentenced prisoners from being released.

There are many people like Mr. Gilbert in America’s federal prisons — people whose sentences are now obviously illegal. Instead of rushing to ensure that all those thousands of men and women illegally imprisoned at taxpayer expense were set free, the Justice Department said that it did not want a rule that allowed other prisoners like Mr. Gilbert to retroactively challenge their now illegal sentences. If the “floodgates” were opened, too many others — mostly poor, mostly black — would have to be released. 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.

According to Nick Pinto in the New York Times Magazine a similar fear is at work in bail hearings, a focus of Karakatsanis’ heroic efforts.

Over subsequent hearings, Adriana’s lawyers tried to get her bail lifted, but they ran into another common problem facing defendants: Once a judge sets bail, other judges are often reluctant to second-guess their colleague’s decision. If they free a defendant who commits a crime while out on bail, the blowback from politicians, police unions and the tabloid press can be substantial. ‘‘I have no idea what motivated Judge Montalbano to set bail,’’ said Judge Andrew Borrok at one of Adriana’s hearings, four days after her arraignment. Still, he said, ‘‘I’m not inclined to change what’s been done.’’

Read Alec’s full op-ed here and Pinto’s magazine piece on bail here.

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