Criminal Law and Social Control

This morning I am representing a relative of a church member in criminal court. So, this morning I will be a criminal defense attorney opposing the efforts of the government to prosecute my client. I will be playing a role as advocate for the defendant in an adversary system. I have a professional duty to "zealously represent my client," as our ethical standards say. I do not have the duty to sit back with the prosecuting attorney and figure out what will be best for my client (though, I may have to pretend I am doing that to get what my client wants). No, my client wants me to 'beat the case' if I can, and get the government off his back. And, that's exactly what I will try to do. Of course, if I look into things, and we aren't likely to "beat the case," I will negotiate something with the prosecutor that my client can live with. And, that's often what happens. At that point, defense attorney and prosecutor are fairly businesslike with the prosecutor making an offer to resolve the case, the defense attorney perhaps making a suggestion or a counter-offer after talking to his client; and, then, a plea agreement is reached, the matter is announced, and the case is over. The case I have this morning is not too serious. The worst that is likely to happen is 11 months, 29 days of probation. But, if my client fails on probation, it can mean 11 months, 29 days in jail at some later date. I have also stood up with clients entering plea agreements where the client was going to prison for 15 or 20 years. And, I have stood up with one client who heard the verdict of guilty read by the jury, and then heard that she was going to prison for the rest of her life without possibility of parole.

Hearing the judge pronounce a sentence is a fairly solemn moment. It reflects the lack of power that an individual has over his or her own life; and reflects an almost ultimate type of control that the government has over an individual, at least where the punishment strips a man or woman of their liberty and orders them locked up like an animal in a cage. It seems that this type of complete control over an individual should be used very rarely and only to protect society from those who are dangerous. But, in our society, we have chosen to lock up people for all sorts of reasons other than that they are dangerous. We use jail as a means of social control, to try and force citizens to conform to social expectations. "You want to drink alcohol and you are 20! If you do, we will charge you with a crime and lock you up!" "You want to drive a car when you don't have a licence; we will arrest you and lock you up!" "You want to smoke marijuana; we will lock you up in a cage.!" THE GOVERNMENT WILL FORCE YOU TO ACT LIKE THE GOVERNMENT WANTS YOU TO ACT!!!!

Of course, the government's efforts at social control through passing and enforcing the criminal code is basically the effort to control the poor, and the criminal code is not much enforced against the middle and upper classes. In a "good neighborhood" you are never subject to law enforcement "knock and talk," which is when an officer knocks on the door and coerces you into consenting to the search of your house or apartment. In a "good neighborhood" you are not approached and questioned and asked to show I.D., and then politely asked if you mind being patted down "for my safety and yours." The examples are numerous.

The criminal law has two intents: one is to prevent serious crime and punish those who commit serious crime; but, the second intent is social control of the poor or the "alternative." I really have a problem with the second intent of the criminal law. I have no problem understanding why someone who is robbing and raping needs to be locked up. I have a real problem understanding why someone who chooses to use a mind-altering substance should be locked up so long as that person is not violating the interests of others. I have a real problem locking up people for a lot of things. The reason we lock people up for social control is that those who have authority like to use it and show others who is in control. "You want to live life your way - forget it! We make the rules to tell you how to live. You don't obey our rules; we lock you up like a dangerous animal."

I guess when it comes down to it, society has decided that alternative lives and poor lives are dangerous to society. Anytime you can catch them violating any little thing, you best lock them up. And, anytime you can pass a law that will define how they live as criminal, by all means, do it.