Thursday, November 30, 2006

What Is Criminal Law?

If war is the continuation of politics by other means, then civil litigation is the continuation of business by other means. “Getting to yes” means confrontation, struggle, damage awards and attorneys’ fees. In civil litigation, businesses use litigation as a weapon to gain market advantage, protect a patent or process, or simply to hobble a competitor. I had my start in business litigation, there being few opportunities for me at the time in criminal law. Businesses resort to litigation when they perceive it to be in their best interests despite the costs and the disruption of their principal activity, making profits.

In my experience, however, when businesses have at each other, usually each side has some rational goal it is pursuing and the decision makers are relatively unemotional about the process, even when the stresses and strains crack their composure. And there is an element of freedom of choice: in most cases even though litigation is initiated, a business can retreat, settle, attack, or appeal.

Criminal defense bears little similarity to business litigation. The accused is not at the bar because he or she has made a quasi rational choice to be there. Often the accused is incarcerated pending trial for something he may or may not have done. He is led from the jail to the courthouse in chains and returned by the same means. The whole force of the state is being brought to bear against him in a setting that has little to do with rationality.

The whole apparatus of criminal law rests on a structure that is intentionally repressive, often in irrational ways. A man arrested for beating his wife may or may not have struck her but the system cares little about whether he did or not. The accusation is usually enough; if the accused attempts to defend himself, he will be told that he is in denial.

Aside from the many irrational rules that govern life in a jail or even in prison, in at least 90% of the cases the fate of the accused is decided by plea bargaining, a system of negotiation that is stacked against the accused. You are accused of assault but you believe you were acting in self defense. Without witnesses or an admission on the part of the victim you have a hard way to go. Someone’s nose was broken, his vision may be affected, you could go to county jail for 12 months or state prison for a longer time. Could go, that’s the catch. You almost certainly won’t serve that much time but there is no guarantee that if you go to trial and lose you won’t get the max.

So the DA says he’ll accept a guilty plea and 30 days in the county jail: what are you going to do? The rational choice, if this were a piece of business litigation, is to limit your losses and do the 30 days. Doing the 30 days, however may impact your job, your future career, your immigration status, your choice of a profession, so the choice is heavier than 30 days as against one year. But still will you take the risk and go to trial?

In the end you do the rational thing and take the 30 days even if you are innocent. It’s the safe choice. Guilt or innocence, crime and punishment, have little to do with your outcome. In reality the whole apparatus exists to repress certain racial groups or to force acceptance of certain social policies. All your protestations are wasted energy. You stand accused; you’re going to get a disposition, and you will pay regardless of the facts that accuse you.

Your lawyer can help, although often his role will be limited to telling you when to accept a plea. If the stakes are high, a good defense lawyer may take you through trial and win your case for you. But a criminal trial in which you are rolling the dice against 25 years of your life is high anxiety, maybe the highest.

Everyone has the jackboot of the state poised above their heads anyway. Criminal law is when the jackboot of the state is brought down upon you with crippling force. It is the extension of class struggle by other means.


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