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55 New Eng. L. Rev. F. 1 (2018)

handle is hein.journals/remand55 and id is 1 raw text is: Michael Meltsner, Review of Usual Cruelty: The Complicity of Lawyers in the Criminal Justice System, 55 New. Eng. L. Rev. F., 1 (2018) REVIEW OF USUAL CRUELTY: THE COMPLICITY OF LAWYERS IN THE CRIMINAL JUSTICE SYSTEM A polemic is an aggressive attack on or refutation of the opinions or principles of another or the art or practice of disputation or controversy. Perhaps because the origins of the word are from the Greek hostile or warlike, polemics are often regarded as negative. In truth, a strong, aggressive attack is only negative if it is your ox that is gored. Usual Cruelty: The Complicity of Lawyers in the Criminal Injustice System convincingly trades in polemical outrage. Three essays of only 161 pages (and 64 of notes; the volume has no index) bring the reader's blood to the boiling point with compelling examples of the systematic perfidy of lawyers, judges, and police and analysis of the choices that have brought us the senseless incarceration of millions. The allegations in this indictment are not new-not that such detracts from their force-and recently we have seen a few green shoots suggesting reforms are on the way. In the final analysis, however, it is the system normalizing impact of half-baked, halfway, over touted political compromises in the face of a record of blindness to the results of what the author sarcastically calls law enforcement that constitute the gravamen of his charge: The legal profession in its many forms has brought about this usual cruelty, though, of course, lawyer behavior must be understood as reflecting the social and economic values of the society in which they operate. Knowing, for example, something of the five decade struggle to rid the criminal process of money bail-a system that not only empowered private businesses to allow those with money to go free and those who are poor to remain jailed, thus predictably facilitating widespread loss of employment, separation of families and coerced guilty pleas-I am put in mind of the comment of an English Lord of the 1840s who was sick of hearing about the need for reform- Reform Sir, reform! I've heard enough about reform. Things are bad enough as they are. In 1966, when I was the in-house director (for the NAACP Legal Defense Fund) of the criminal law program of the National Office of the Rights of the Indigent, we managed in a matter of months against the odds to bring a constitutional challenge to the money bail system on equal protection grounds all the way to the Supreme Court. The Court denied certiorari, Justice Douglas dissenting. Ironically, the New York Court of appeals decision we appealed did not really reject our arguments about discrimination but instead passed the buck to the legislature, where it was ignored. In a moment of candor, however, the Court opined that even if our constitutional challenge was largely 1

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