Lawyers, Jails, and the Law's Fake Bargains
Tigar, Michael, Monthly Review
Assume that Canada and the Western European countries have about the right number of people in jail. Assume that the social problem of crime is not terribly different in those countries than in the United States. Understand that our incarceration rate is five to eight times that of those other countries. If these assumptions, and this understanding, are even nearly valid, 80 percent of the people in American jails should not be there.
The heavy toll of jailed people reflects the extent to which the criminal process is used as a mechanism of social control, directed mainly at the poor and at people of color. That is what I term the substantive aspect of the issue, which could also be called over-criminalization. Minor social deviance makes you subject to criminal punishment, and for terms that dwarf those imposed in other countries.
The proceduralist would tell us that these figures are not reason for alarm, for every person faced with incarceration has an array of due process rights. I sat at dinner with a Supreme Court Justice, who explained to me that the constitution was drafted by people who had read Isaac Newton, and who devised a mechanism of checks and balances, like clockwork. The Framers, he said, were concerned with the mechanism of government. This view is, to be sure, partial; the Framers had been revolutionaries, battlers for a certain social vision, threatened with jail or execution themselves. They were also white males who owned property, and many, if not most, of them counted human beings among their property However, the clockwork idea is powerful, for it reveals something of current Supreme Court attitudes towards the criminal process that puts all these people behind bars.
Clockwork is a powerful image because a clock is quintessentially "form," the substance is what time it is. If there is only one clock, and it is kept by a small group of the powerful, then the time is whatever they say it is. The clock, and even the rather arbitrary decision to divide its units into sixty, sixty and twelve or twenty-four, is itself a convention established by somebody or other. "Twelve o'clock and all's well," says the town crier from the castle parapet. In this essay, I want to talk about how, procedurally, all those people could have been put into jail or onto death row.
Before I talk about the substance of bargains between lawyers and clients and between lawyers and the state, I must speak about bargain as a form. The property norm speaks of a relationship between an individual and a thing. Unlike feudal social relations, which were expressly based on dominion of people over other people, capitalist social relations are premised on domination only of inanimate objects and of whatever animals may lawfully be killed, sold and eaten. This form, however, masks the substance of capitalism, which is that some people own means of production and others own only their labor power. Ownership of means of production translates into domination over people as owners of labor power sell that commodity.
"Not so fast!" says the listener. The worker sells labor power in a free bargain. This is the form called "contract." A contract involves the exchange of mutual promises by individuals who are each free to accept or reject the terms proposed. In the contract for labor, however, we can see the way in which this formalism is belied by substance. The worker has nothing to sell but labor power. The price is dictated by market forces beyond the worker's control. The individual is powerless relative to the employing enterprise. The intervention of collective bargaining may help equalize the balance, but only so far. And this is not to speak of the take-it-or-leave it pseudo-bargains that are everywhere in an economy dominated by powerful sellers and buyers.
Legal counsel is at the center of the formalistic bargain that dominates the criminal process. The constitution is explicit: "No person shall be held to answer except. …