Interpersonal power in the criminal system.

• Author: Thomas, Kimberly

INTRODUCTION

Instances of interpersonal power in the criminal system are black holes in our collective discussion of the criminal law. Their effects are not visible to most outsider observers, yet they have a significant gravitational pull within the cases they involve and within the criminal system generally.

A few examples help to define the contours of interpersonal power.

Example 1: A loving mother has a mentally ill son. The son has, on prior occasions, been violent with members of his family, but the mother has not involved the police. The son has not been able to obtain what the mother believes to be effective treatment or medication. This time, the son hits his mother in the course of an argument. The mother, not knowing what else to do, reports the incident to the police and the son is arrested. (1)

Example 2: One person "rents" his car to an acquaintance, who needs a car for the day. In exchange, the car owner receives a small payment he intends to use to purchase illegal narcotics. The acquaintance does not return the car on time. The owner reports the car stolen to police. (2)

Example 3: A man gets into an argument with his girlfriend. The argument might be purely verbal, or perhaps it is physical, but is not, in any sense commonly understood by the criminal system, a significant aggression on the part of the girlfriend. Nevertheless, the man calls the police (3) and reports a domestic assault.

These cases have at least three common features relevant for this Article. First, the complainant has an interpersonal relationship with the alleged wrongdoer. This relationship is, in most instances, ongoing, rather than a one-time interaction between two people. Second, the complainant perceives himself to have a lack of power to influence or force action on the part of the other party. This perception may he accurate or inaccurate, but it is the complainant's determination that is important. (4) Third, the complainant reaches out to the criminal justice system for assistance, as opposed to taking extra-legal means or using the civil justice system. (5)

The potential effects of interpersonal power are tremendous, given the composition of cases that make up the criminal justice system. Often, when the public thinks about crime, it imagines the random street mugging or car theft by an unknown person. However, much crime is personal, (6) involving violence, theft, or other affront by a known person. (7) Contrary to popular perception, a large percentage of criminal offenses are perpetrated by persons who are not strangers to the victim. (8) For example, for personal crimes of violence, more than 50 percent involved a non-stranger. (9) These complex and ongoing relationships result in cases that challenge the boundaries of criminal law. (10) To be sure, the artificial dichotomy of victim and perpetrator, of offended and offender, in the criminal law has not gone unnoticed. (11) The creation and use of interpersonal power through the criminal system is only one manifestation of the complex web of relationships between parties to an alleged criminal event. Yet this particular context, and the possible effects of this phenomenon, have not fully been considered.

Instead, cases of interpersonal power are largely invisible. Interpersonal power dynamics are found mostly in the deluge of state court misdemeanors and low-level felonies that make up the bulk of criminal cases. Most of these everyday offenses produce no written opinion and no appeal. Even when they do, the dynamics of interpersonal power would not, in most cases, make it into the court record, save, perhaps, as pre-determined facts from the trial court. Because of this invisibility to legislators and other policymakers, the presence of these cases has largely gone unnoticed in discussions of how to best structure criminal procedural and sentencing systems. Further, beyond the context of specific sub-categories of cases, such as domestic violence in the criminal system, (12) interpersonal power in the criminal system is overlooked in the academic literature as well. As these cases are rarely seen by scholars, the effect of these cases on the development of criminal law has largely been ignored.

This Article identifies the workings of interpersonal power in the criminal system and considers the effect of these cases on criminal theory and practice. By uncovering this phenomenon, this Article hopes to spark a legal academic dialogue and inquiry that has, until now, been unspoken.

This Article has roots in my former work as a Philadelphia public defender and in my current work as a clinical professor with students who appear in criminal and juvenile court. As an advocate for the poor in a busy courthouse, one of a lawyer's tasks is to discover the multiple "real" stories behind the charges and test alternative hypotheses for what may have occurred in a given situation. I am constantly struck by the courts' and criminal law's inability to account for the role of interpersonal power.

Part I gives a contextual overview of features of the current criminal and civil justice system that suggest people, and poor people in particular, might seek access to the criminal justice system as a way to exert interpersonal power usually associated more with the civil justice system. Among other things, these background conditions include the difficulty of accessing civil legal assistance and social services for mental illness and substance abuse.

Part II examines the theoretical and doctrinal problems these cases pose for criminal law. In particular, these cases fit within a literature that shows a growing discomfort with both the inability to draw a coherent line between civil and criminal justice systems as well as the ramifications of these new hybrid actions. The majority of the literature on this distinction focuses on regulatory and white-collar offenses. This Article is one of the first to highlight the blurring of criminal and civil law in the context of "average" criminal cases.

In Part III, the Article examines the "on the ground" dilemmas, unseen by outside observers that are created by the presence of interpersonal power in the criminal justice system. Until interpersonal power is acknowledged, these practical implications will not be adequately addressed. Part III also explores several possible approaches for addressing these cases within both the criminal and civil systems.

1. BACKGROUND CONDITIONS THAT LEAD TO THE USE OF INTERPERSONAL POWER IN THE CRIMINAL JUSTICE SYSTEM

   People, especially low-income people, use the criminal justice system for systemic and individual reasons. These reasons suggest the criminal justice system is more frequently used by low-income persons for a re-distribution of personal power due to the absence of other viable options. While the focus of this Article is on the structural aspect of the criminal justice system, individual reasons merit a brief examination.

   1. Individual Reasons (13)

      The personal motivation for reporting or assisting in the prosecution of a crime may be straightforward or complex. In many instances, at least part of the calculus is the reporting person's desire to obtain the power to influence the accused's behavior, solicit outsiders to give the reporting person more control over the situation, force compensation to the reporting person for their alleged loss, or in some other way affect the ongoing interpersonal relationship between the parties. But not all crimes are reported to the police. (14) Even when someone is a victim of a crime, that person makes a choice about whether or not to involve the criminal justice system.

      For any crime, a victim could have any number of reasons to report or not report the offense. (15) The available statistics suggest, in addition to factors that apply across the board, victims who are deciding whether or not to report an offense make the nature of the relationship and the effect on that relationship and the offender a part of their calculation. (16) One study showed 52.8 percent of violent victimizations in 2002 were not reported to law enforcement. (17) The most common reason for not reporting the offense to the police was that the incident was a "Private/personal matter." (18)

      In contrast, not every call to law enforcement is for a legitimate criminal offense. (19) As little as we know about why people report and prosecute--or choose not to--legitimate crimes, even less is known about why someone might falsely report an offense. (20)

   2. Systemic Reasons

      Poor people have insufficient access to the civil justice system, and they face financial and other constraints on their access to social services--especially treatment for substance abuse and mental health. This limited access to civil justice remedies and social services can force individuals to look elsewhere for options to resolve interpersonal tensions. Even for those who do not want to involve themselves in the criminal system, the criminal justice system may be the only viable option.

      1. Access to Civil Justice

         For some situations in which interpersonal property and relationship disputes boil over, the civil law system might be better suited to resolving conflicts between two parties and providing a remedy to the aggrieved person.

         However, many poor people do not have the ability to successfully access civil legal means of resolving these disputes. (21) The poor, whether engaged in a divorce, child custody proceeding, eviction, or other civil case, are not constitutionally entitled to an attorney to represent their interests. (22) In addition, access to a legal aid or a pro bono lawyer is limited. Some estimate the current legal system fails to meet four-fifths of the civil legal needs of low-income persons. (23) Even for middle-income persons, a civil attorney may be out of reach. (24) Further, some people do not seek out the civil justice system because they believe it will not be able to help them. In...