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. …