My theory is that the criminal legal system functions primarily as a method of social control over the lower class. This much is obvious and barely worth mentioning. I think a second, somewhat more pernicious function is that it forces the people caught up in it in direct debt peonage through the levying of fines, costs, and fees as a direct result of punishment. Further, it creates a vast pool of low-cost, low-skill labor that capital is free to exploit at will. A criminal conviction on one's record drops one's bargaining power to zero, as if for a single worker they have any to begin with. Fast food restaurants, construction sites, and call centers are just a few places you will find stuffed with people who have been processed by the criminal legal system. Moreso, I believe that this is the intended consequence, not something incidental. Not that any judges or prosecutors will admit this, or even be aware of it on a conscious level.
This is not an exhaustive report and is based largely on personal anecdotal experience. As I've mentioned before many times on here, I am a public defender – that's a “free” criminal defense attorney appointed to the poor, for anyone unfamiliar with the term or concept. I represent criminal defendants too poor to afford a lawyer, although the cutoff is distressingly low, which leaves a big chunk of the working poor and lower-middle class who can't afford an attorney and don't get court-appointed counsel either. But that's a whole nother issue.
Last time anyone bothered to check (2000, or so it seems), roughly 82% of felony defendants in large counties are represented by court-appointed counsel (it looks like the Bureau of Justice Statistics doesn't keep track of state-level misdemeanors. In some states, they game it so low-level misdemeanors don't qualify, so it's hard to say what the numbers would be anyway). This is usually, but not entirely, due to their indigence – in my state, if you are incarcerated pretrial you qualify for court-appointed counsel no matter what. This is a high amount, but not shockingly so if you are of the belief that the criminal legal system is largely designed to control the lowest classes. It makes sense that they are generally the ones charged with and prosecuted for crimes. Federal crimes are a different story, as they tend to be larger-scale and often white collar.
This is also not a post about the issue with the court-appointed counsel system as it currently exists. Needless to say, it's fucked. Again, not surprising, because it's largely lip service to the constitution and basic fairness: sure, we shouldn't be making people with little to no education – and very often severe mental health issues – try to understand the complex vagaries of the criminal legal system while their liberty is at stake. Let's give them an over-worked, underpaid recent law school graduate to meet with them for ten minutes to explain how they're fucked. It will keep the trial courts running smoothly and clear up the appeals docket a bit. Rather, it's about the overlooked impact that even a simple criminal conviction can have on a person and how it steers them to a life of permanent proletarian-hood.
One overt way that poor people are attacked financially is with the burden of court costs. While court systems receive funding from state coffers, someone somewhere (it was actually in the 1970s, I believe) decided that the costs of prosecution and processing should be borne by the criminals themselves. So now, even something as simple as a low-level misdemeanor, such as harassment or disorderly conduct, comes with a litany of court costs – administrative processing fees, costs of prosecution (like paying several hundred dollars to the cops for a blood test during a DUI stop or $1,000+ for transportation if a client has to be extradited from out of state), and even, bizarrely enough, money for your “free” lawyer (unless the case is dismissed or results in an acquittal, my clients pay $25 for my services. Not to me of course). These usually add up to several hundred dollars and are higher the more severe the charge. Not exactly death by a thousand cuts, but a substantial amount to someone living on $800 a month in benefits.
But we're getting ahead of ourselves. This is all after a finding of guilt, either through plea (very likely) or jury verdict (also very likely). At the very beginnings, most cases start with arrest and that brings us to the initial method of extracting money from the poor: the cash bail system. Some idiot decided that in order to get people to come to court, we should take a chunk of change from them and hold it until their case is resolved. It's capitalism, right? The only conceivable motivation for an individual is financial. The amount can range anywhere from a few dozen dollars to several thousand (to be fair, I will note that many people are released for free “on their own recognizance”, with only a threat of re-incarceration and a potential fine if they miss court). Someone posting a cash bond gets the money back when the case is resolved, although courts often deduct the court costs from the bond. Regardless, having several hundred dollars tied up (and not collecting interest) is a huge burden for many of my clients and, more often, their friends and families (if they're lucky enough to have any).
Now, on it's face this is preposterous and incredibly classist, so someone even more idiotic created the bail bonds system to address it. That's when a licensed, bonded individual or company will take a percentage of the total cost from the client or an interested party – usually about 10% - and foot the remainder of the bill. Because they are taking on the burden of assuring a client's appearance at future court appearances, they take steps to make them show. This is where bounty hunters come in. With quasi-legal authority, they will find clients and drag them in on warrants issued if they failed to appear at a court hearing. Usually they just wait for them to get arrested on warrants. In my experience, bail bondspeople are (predictably) absolute scum. Preying off of the most vulnerable, their main job is “having a big pile of money or line of credit, signing papers with the court, and waiting for cops to arrest people that they bonded out so they can get their money back.” Sure, a $1,000 bond only nets them $100 from my client, but that adds up for a poor person. Every missed court date results in another bond, usually increasing with each iteration. It's not rare to have a client held on a $10,000 bond for a misdemeanor because they showed up a few hours late to court, or not at all.
One thing I should have noted earlier: the county jail has a “processing” fee of $35 upon arrest. Yes, you pay for the privilege of being tossed in a concrete box that you can't leave. Even if you're found innocent or the case is quickly dismissed, this has to be paid. If not paid up front, t's deducted from any money placed on a client's books, which include everything from phone calls to commissary (eating anything that's not basically poison). This leads to a side-issue: the cost of jail “visits”. It's of course contracted out to a private company that charges exorbitant fees. That is, if the electronic system even works. This can be done from home using a skype-like system, or in the jail with a skype-like system. No face-to-face visits or through plexiglass windows. But I digress.
Once the scum-suckers bond a client out, more often than not the client will be subjected to pretrial supervision. This can include weekly or monthly check-ins, urinalysis or breath tests, electronic home monitoring, or various other conditions. Think being on probation, except before you copped a plea or lost a trial. The legality of this simply baffles me, considering the presumption of innocence that virtually everyone knows about and is a supposed bedrock of the criminal legal system. Years ago, this was a public system provided by the courts but it has since been contracted out to various companies, providing another remora lazily hoovering up the scraps of a corrupt system. Of course, because it's a private company, there are costs associated with it. Again nothing exorbitant, but a client can expect to pay $15 to $30 (occasionally more) a month to enjoy the privilege of not spending several months in jail before admitting to or being convicted of a crime. I am assured that clients will never have their bonds revoked for nonpayment, but simple insignificant infractions can be grounds for revocation if brought to the judge's attention. I have noticed that they practice wide discretion on reporting said infractions. If found noncompliant a person is returned to the county jail with the right to a hearing to contest the revocation within 14 days.
Everyone knows the dangers of pretrial incarceration. It results in a much higher rate of guilty pleas for reasons too obvious to go into. Fundamentally, being in jail means not working or making any money, and usually the loss of one's job and often one's benefits. But even folks out of custody can watch the costs add up as their cases creep along. Speedy trial rights usually mean that you have to have a trial within six months of requesting one. A failure to appear at a court appearance can function as a de facto waiver of that right, starting the clock over. As MLK said, justice delayed is justice denied. It also winds up hitting the wallet pretty hard.
And then, for the vast majority who find themselves guilty, there are the above court costs. But for the folks lucky enough to be granted a probationary sentence, there are supervision costs. That comes to $50 a month in my county. For a 12 month sentence, that's $600. That's a short sentence. Most clients will end up being billed for more than a thousand dollars so they can meet with a bored civil servant once a month and piss in a cup. Except, of course, they often have to pay for their piss tests at $10-$15 a pop. Paying court costs is also a standard condition of probation. Although it is admittedly rate, you can have your probation revoked for non-payment of costs or restitution.
Restitution is another cost, although easier to defend. Essentially, if a victim is out any money – whether because something was stolen or broken in the commission of a crime – then restitution will become part of the sentence. This includes payments to insurance companies if they end up compensating the victim financially, like in the case of a DUI involving a car accident. The amounts can range from a small amount for a petty theft the several thousand dollars. And you bet that interest accrues on the initial amount, even if the client is incarcerated or otherwise unable to pay.
Folks who get a jail sentence can on occasion may be lucky enough to be afforded another option: in-home detention. This costs between $11 and $15 a day. Because this is such a great deal for them, prosecutors and judges in my jurisdiction usually double the amount of the sentence. So if you want to avoid a three month jail sentence, expect to pay *whips out calculator* at least two grand. There are also work release programs where you sleep in jail at night but work outside during the day. Counties usually charge a small amount per day for that as well. My county discontinued the program several years ago for administrative reasons, though.
Even something as simple as community service costs a one-time $100 “processing fee”.
Realistically, there are three sentencing options for a misdemeanor: jail, probation, or a fine. One deprives you of the ability to make income and the other two simply take it from you. With felonies it's similar, except it's prison, community corrections (think halfway house), probation, or an exorbitant fine. I will admit my clients rarely get assessed fines, but as you can see, that doesn't make much of a difference to the bottom line.
Another thing that may be unique to my state: a few years ago they broke drug crimes into their own categories, and lessened the sentencing for them. As a part of this, they made it clear that probation and treatment are supposed to be a first resort. However, on top of that, they enforce “drug offender surcharges” that are mandatory and in addition to any other costs, fees or fines. For a basic misdemeanor plea, the surcharge is $1,000. They increase with level of severity. The purpose is to put it in a slush fund to help pay for treatment, but they're rarely paid, for obvious reasons.
Now if you're incarcerated for even a short period in connection with an accusation, you will likely lose your job. If you serve a jail sentence without work release, your income drops to zero. This includes benefits. I have spent quite a bit of time trying to help former clients get their SSI or Medicaid turned back on after a stint in the jail and it is as frustrating as you can imagine. So, you're convicted of a crime, thereby making you drastically less employable, often after losing any source of income you had and you have these bills to pay.
Of course, because this is America, that bill doesn't just sit there, where you owe the courts several hundred or thousand dollars for several years. One of the first things a client does is set up a payment plan with the courts. If it goes unpaid for a short amount of time it gets sent to court collections. As with any collections scheme, missed or late payments are a huge black mark on your credit report. The payment plan may become a court order, thereby making nonpayment technically contempt. They may be ordered to get a job in order to make the payments, again with the full authority of the court behind said order. They may be forbidden to apply for sources of credit while the payment plan is in affect. A lien can be placed on any real property they own. And of course, because this is a late-capitalist hell-hole, interest accrues on the total. And the interest starts at sentencing, so if you are imprisoned for several years, you will have no money, no income, and a much larger bill when you're released on parole.
Just to put some sugar on top, many of these costs are non-waivable, so a sympathetic judge cannot make a sentence that doesn't include them. The ones that may be waived or suspended are usually only done so at the discretion of the court after a separate post-sentence hearing to determine a client's indigence or inability to pay. I'll leave you to imagine how often those are successful.
So, this is probably not really news to most people, or maybe the idea is but not the exact details. We can hardly call them hidden costs, either, because they're usually spelled out in statute or provided to the client in a handy invoice upon conviction.
That being said, I think there are less obvious ways than this debt slavery that my clients suffer for the benefit of capital. Again, I'm not as qualified to go into the details of the prison-industrial complex, mostly because you don't have a right to a lawyer once you make it to prison or parole, except for narrowly tailored appeals issues. Suffice to say, it's a fucking nightmare.
But one major and in my opinion transparent way that the criminal justice system financially exploits my clients for the benefit of capital is turning them into nearly unemployable people and then forcing them into the labor market under threat of incarceration.
It is a standard condition of probation and parole to have or be seeking employment (or education, in some cases). A violation of parole or probation will likely result in incarceration. So the system makes you entirely unqualified or unappealing for most worthwhile forms of work and then forces you to perform some other kind. One judge I practice in front of likes to sentence a probationer to 500 hours of useful public service, suspended upon providing proof of a paying job. On it's face, this is a way of preventing idle time where people get up to no good. Realistically, it simply forces recently incarcerated people to find whatever job they can, usually at distressingly low wages and in exploitative circumstances.
One of the stated purposes of probation and parole is to assist the probationer with reintegrating into society. This includes helping them find work. This is a lofty goal which the system falls woefully short. Probation and parole officers are low-paid civil servants who may have high ideals when they begin work but are generally incapable or unwilling to perform their duties adequately. Not to say that I haven't encountered some who do a good job of this, but they are the rare exception.
The benefits of this system for capital are readily apparent. With a large population of former convicts or simple misdemenants floating around desperate for work, employers can pay low wages with no benefits in jobs that are low-skilled often dangerous, and that person has to either suck it up or go back to jail. There are plenty of people just like them out there and don't think employers don't know this. Even worse, these employers can turn it into a positive, framing it as a type of public service or a moral belief in second chances – one that they are taking a hefty risk to perform, they might add.
In essence, the court system is supposedly a neutral arbiter designed to punish crime and make victims whole, with some lip service to assisting the criminal in becoming a contributing member of society. In reality, it has become a system that directly leeches money from the most vulnerable members of society and has the added effect of creating lucrative side-industries, like for-profit prisons, bail bonds parasites, and the private defense bar (I somewhat understand my colleagues who cash out and go private, but I have to admit some small amount of contempt for them). It also forces people into debt peonage and undermines their value as laborers to ensure that there is a large pool of low-cost, powerless labor that capital can exploit for profit. It's similar to the immigration system, with the threat of re-incarceration or deportation allowing employers to take advantage of these workers/migrants with below-living wages, long hours without overtime, dangerous working conditions, wage theft, and zero benefits, knowing that their power over them is immense.
As I reread this, it's a little bit of dog-bites-man and may not spur much meaningful discussion. But I'm gonna post it anyway because You Gotta Post.
toyotathon posted:frontpage
what do you think about the class character of people going into the system and coming out? you said the system's set up to fill the lowest layers of the proletariat, proletarianization thru debt peonage etc
for the most part they go in poor and come out the same or poorer. a large part of it is ensuring that they have no chance of social mobility. not many ex-cons claw their way firmly into the middle class, let alone upper middle class. not to say they had much of a chance to begin with. there is also a sizable minority, though, of clients who are not firmly in the lower class to begin with. some of my clients are middle class who, whether through drug addiction or probation violations because they just don't have their shit together, end up firmly embroiled in the system and all that entails. a lengthy jail sentence for a middling misdemeanor after a failed attempt at probation is a big gap in a resume, if they even have such a thing.
condolences. i imagine being married to a lawyer is a frustrating experience. its probably why usually only other lawyers can manage it
tears posted:nice, could you write a paragraph on your experience of how the system treats women?
i will have to get back to you on this. i want to discuss it with some of my female colleagues. women are definitely the minority of folks being processed through the criminal legal system; they take up maybe 20% of the county jail population. that being said, i would say they make up the majority of my colleagues who are incarcerated pretrial. if i have 5 clients to visit in jail, 3 or 4 are usually female (small sample size of anecdotal evidence, so take that with a grain of salt).
i also take part in a treatment court - its for folks with co-occurring disorders, or dual diagnosis. this means addiction plus some other dsm diagnosis. my clients have everything from depression to full-on schizophrenia. its a probation program with treatment being the focus and incarceration supposed to be a last resort. women make up about a third of my ~50 clients, which is a bit higher than the proportion of them charged with crimes, and they actually tend to get more leeway. while everyone in the court tends to get second, third, and even fourth chances (a relapse is rarely addressed with jail and most often more treatment. even a new offense while on probation isn't a guarantee theyll be tossed in jail or prison), the female clients tend to get fifth, sixth, and even seventh chances. a lot of these are based on extenuating circumstances, like the women are pregnant and nobody wanting her to give birth in prison or them being middle class folks with wicked drug problems
i will say, id much rather have a female client in trial on a violent offense than a man. this is largely based on general societal opinions. youre much more likely to get an acquittal on a domestic violence case with a girl-on-guy fact pattern than vice versa
women tend to have a tougher time of it in jail, though, but in my experience this is more because of the other female inmates. im more likely to visit a client in jail to find they have a black eye and are placed in adseg (administrative segregation, 23 hour lockdown). theyre rarely the victims of police violence inside, at least compared to my male clients
that being said, i can say for sure that my female colleagues have it really rough. blatant sexism runs rampant through the legal profession, and criminal is no exception. of course, the good ol boy white middle aged male das are horrible. they talk down to them, give them a harder time (worse offers, etc), and even tell them offensive jokes, often in court (not on the record but during negotiations). its night and day with what i have to put up with. theres definitely an element of having to earn their respect as someone who is younger, but nothing to the level the women have to put up with
beyond that, the clients can actually be much worse. our office is split roughly 50/50 male/female. i firmly believe that almost across the board, the lady attorneys are better than the men. if you asked clients, they'd say the opposite. im occasionally asked to help a female attorney with a client theyre having trouble with; not that im more experienced or skilled, i just tend to have a good rapport with clients. probably a personality thing. the clients are invariably more respectful and cooperative with me. clients who have had prior female representation constantly bitch about how bad their former lawyer was (although this is often just generally true; for some reason clients' ire is turned toward their lawyer, not the da who gave the offer or the judge who gave the sentence). this happens much less frequently when their former attorneys were men
all this being said, i am worried that i am just not seeing the whole story because of my place of privilege. this is why i want to get feedback from female attorneys.
cars posted:interesting to see this from the criminal law perspective... when those meager benefits disappear like you mentioned, a lot of the time the person ends up having to work at getting help from the perpetually underfunded legal aid offices for civil cases, which can be another full-time job for the one seeking assistance. glad to see you help your clients with that stuff too, because a lot of criminal defense attorneys either can't or won't.
this is my experience too. most of us seem to focus mainly on the lawyer part of the job, but theres a healthy dose of social work involved if youre inclined to do it. to me thats more rewarding and seems to have a more direct impact on clients' lives, but its not really in my job description and my bosses would probably not exactly approve. not that they would forbid me from doing it, but would probably prefer i spend more time on litigation and whatnot
the best pos i work with are the ones that go above and beyond to get the benefits turned back on. its a big part of the treatment court work for obvious reasons
the op did not go into details about how fucked clients who are unable to work/subsist on benefits are. they usually have a very tight budget so their monthly payments are $20 a month or something like that. paying off $1200 will take forever, especially with interest accruing
TG posted:clients who have had prior female representation constantly bitch about how bad their former lawyer was (although this is often just generally true; for some reason clients' ire is turned toward their lawyer, not the da who gave the offer or the judge who gave the sentence). this happens much less frequently when their former attorneys were men
But that's a feature of the system, isn't it? In the ruthless version of thr adversarial system we're socialized to accept, the machinery of the state is supposed to try to crush you. It's their duty. If you lose the trial by combat, you don't blame the opponent for trying to win, you blame your champion for being too weak, regardless of how unfair the fight was.
Okay here it goes.....
On the issue of Women in prison... At least in Canada, where I worked for CSC (Correctional Service Canada) for a couple of years. When we look at women's corrections. It is in some ways radically different than men's. CX's (security officers) call women's facilities "pretend prisons."
On the surface... women's prisons seem radically reformed and the theory of Canadian women's carceral system seems revolutionary. The central text for Canada's women's prisons is a policy document called Creating Choices:
http://www.cwhn.ca/en/node/24840
The gist of it is that women were being treated inhumanely especially indigenous women who were often not visitable by friends and family. Never allowed to see their children and who were aggressively missionized by chaplaincy to the exclusion of other services.
The reforms were intense and in subsequent years scaled back. For example security staff and inmates did not wear uniforms. Everyone was dressed in what they ordered from walmart.
The units were designed to have common areas and a shared rec yard. Things that seem small but were significant breaks with the philosophy of most population management theories at the time. They got more visits. They got a special dialectical behavioural therapy unit for women with borderline personality disorder (it was theorized that up to 80% of incarcerated women have BPD, a truism being passed around.) Efforts were made to introduce indigenous elders into the prisons' support teams and release plans were liberalized to promote family contact and interaction. Also a mother child program that would let new mothers raise infant children up to 5 years old while incarcerated was created.
The only problem... it was fucking prison.
The central issue with any prison is that they are vicious microcosms of the outside world and more than anything the carceral system in Canada is racist.
Deeply racist to indigenous people.
For this reason I severely resent the comment about women having a 5th or 6th chance.... that is only ever true for white women. The graciousness of the women's system is disproportionately awarded to white cis women. Preferably young middleclass cis white women.
Indigenous women make up almost half of women's corrections. And in the maximum security they make up a large number 80-90% in the location I was at.
The application of mental health teams to diagnose and manage the massive mental health problems in the population were at their base a re-hashing of the patriarchal archetype of the madwoman. This new vigor for treatment also created a new avenue for security intelligence to monitor the population. As a member of the mental health team I saw some of my coworkers groomed into security intelligence operatives disguised as mental health workers. I will say those in the prison who were psychologists and occupational therapists were protected from this. It was the DBT coaches, counselors, program officers and non registered mental health workers that were pressed the hardest. It got so bad at one point the inmates stopped talking to our team because they got wise to us.
I eventually left the service cured of belief that you can change something from the inside.
Especially considering the dated concept of the disorder most likely used by those running prisons and other institutions exercising control over the poor or disadvantaged—a characterization of BPD symptoms that is scientifically bankrupt, blatantly misogynist, drastically punitive & adversarial and dictates de facto that anything BPD-diagnosed people say or do is purely calculated to demand attention they never deserve, even in situations where their lives appear to be in danger—a truism claiming that 80% of incarcerated women have BPD is horrifying.
Aspie_Muslim_Economist_ posted:In the ruthless version of thr adversarial system we're socialized to accept, the machinery of the state is supposed to try to crush you. It's their duty. If you lose the trial by combat, you don't blame the opponent for trying to win, you blame your champion for being too weak, regardless of how unfair the fight was.
As a law student my biggest struggle is ignoring the constant urge to rant about how godawful the adversarial system is. Not convinced a non-ruthless version exists.
Petrol posted:As a law student my biggest struggle is ignoring the constant urge to rant about how godawful the adversarial system is. Not convinced a non-ruthless version exists.
lol I feel the same but I hedged because I don't think I know enough to have an intelligent opinion on it.
shriekingviolet posted:i have received some words from an accountless rhizzone reader who prefers to remain anonymous and had a perspective from another side of the system
Okay here it goes.....
On the issue of Women in prison... At least in Canada, where I worked for CSC (Correctional Service Canada) for a couple of years. When we look at women's corrections. It is in some ways radically different than men's. CX's (security officers) call women's facilities "pretend prisons."
On the surface... women's prisons seem radically reformed and the theory of Canadian women's carceral system seems revolutionary. The central text for Canada's women's prisons is a policy document called Creating Choices:
http://www.cwhn.ca/en/node/24840
The gist of it is that women were being treated inhumanely especially indigenous women who were often not visitable by friends and family. Never allowed to see their children and who were aggressively missionized by chaplaincy to the exclusion of other services.
The reforms were intense and in subsequent years scaled back. For example security staff and inmates did not wear uniforms. Everyone was dressed in what they ordered from walmart.
The units were designed to have common areas and a shared rec yard. Things that seem small but were significant breaks with the philosophy of most population management theories at the time. They got more visits. They got a special dialectical behavioural therapy unit for women with borderline personality disorder (it was theorized that up to 80% of incarcerated women have BPD, a truism being passed around.) Efforts were made to introduce indigenous elders into the prisons' support teams and release plans were liberalized to promote family contact and interaction. Also a mother child program that would let new mothers raise infant children up to 5 years old while incarcerated was created.
The only problem... it was fucking prison.
The central issue with any prison is that they are vicious microcosms of the outside world and more than anything the carceral system in Canada is racist.
Deeply racist to indigenous people.
For this reason I severely resent the comment about women having a 5th or 6th chance.... that is only ever true for white women. The graciousness of the women's system is disproportionately awarded to white cis women. Preferably young middleclass cis white women.
Indigenous women make up almost half of women's corrections. And in the maximum security they make up a large number 80-90% in the location I was at.
The application of mental health teams to diagnose and manage the massive mental health problems in the population were at their base a re-hashing of the patriarchal archetype of the madwoman. This new vigor for treatment also created a new avenue for security intelligence to monitor the population. As a member of the mental health team I saw some of my coworkers groomed into security intelligence operatives disguised as mental health workers. I will say those in the prison who were psychologists and occupational therapists were protected from this. It was the DBT coaches, counselors, program officers and non registered mental health workers that were pressed the hardest. It got so bad at one point the inmates stopped talking to our team because they got wise to us.
I eventually left the service cured of belief that you can change something from the inside.
i appreciate the alternate perspective. like i said, this is all based on my limited personal experience. i would love to sit down with one of the therapists attached to the treatment court to see how they view the system from their angle. i doubt theyd condemn it as strongly as i do but i cant imagine they are big fans
the fifth and sixth chances comment referred to clients sentenced to a treatment court, which caters to about 50 probationers in a county with about 2,500 felonies and 3,500 misdemeanors filed each year, so not a statistically significant sample. folks on regular probation may get two chances, or possibly a third if lucky. i dont want to argue against the obvious racism of the system, but within the treatment court itself, theres a sizable number of ethnic minorities, although this may be a product of the community it serves. one of the clients who received several chances was a young latinx trans woman diagnosed with bpd. considering she committed a felony while on probation, she very well could have wound up in prison but ultimately even the judge agreed she didnt belong there, so after she was kicked out of her third treatment program her probation was terminated quasi-successfully without any additional incarceration. she has not reoffended since then. overall, though, the folks who get the most chances are definitely the middle class white clients. this is the obvious danger of micro vs macro level analysis. the outliers stick out more
bpd is rough. it does seem to be used as a catchall for any woman who acts in an uncontrollable/antisocial manner. whether the diagnosis is legitimate or not, they definitely struggle the most, even with the assistance of one-on-one counseling and therapy. or rather, maybe because they receive that diagnosis the expectations are failure, and they become a self-fulfilling process
of course, success is a loaded term when it comes to probation. i have a female client with bpd and a history of severe trauma. she came in with a meth addiction and hasnt used in several months, nor has she re-offended in any way. however, she doesnt engage in therapy to address her trauma, just sitting through sessions with her arms crossed and going through the motions. in my view, shes compliant with probation, but the treatment people believe she needs to address her issues or else shes not been successful. while shes technically in danger of a short prison term, i cant really imagine a world where the judge decides thats appropriate
thirdplace posted:are there any crimes/classes of crime that stand out to you as being particularly common, relative to what a layperson would expect? or types of law that are notably abused/exploited by cops/prosecutors?
one that sticks out to me is the charge of providing false information to a pawnbroker. its a low-level felony, but essentially it means you lie on a form you sign when you pawn something. its possible it was made a felony due to pressure from pawn shop owners, but realistically its used as a bludgeon for someone who more than likely stole the item, but proving the actual theft would be difficult for the prosecution. instead, they threaten you with prison for saying you owned something for 12 months when it turns out you cant possibly have had it for more than 1 or 2. if you steal something worth $40, you might be looking at a short jail sentence or more likely probation. if you pawn it, you can spend a year and a half in prison followed by a year of parole
another one is criminal impersonation. giving false identifying information to a cop is a low-level misdemeanor. however, if you do it "with intent to gain a legal benefit" it becomes a felony. now, it seems apparent that the intent of the legislature was to stop people from pretending to be someone else to steal their benefits or defraud a public institution. its most often applied, however, against folks who have arrest warrants out and give a fake name, "the legal benefit" being not being arrested on a warrant. clients may be contacted under a suspicion of a crime, a witness to one, or even if they are the alleged victim, and ultimately be charged with criminal impersonation and threatened with conviction for a felony that is a crime involving dishonesty, which potential employers hate. i have a client right now who was contacted by police because the neighbors heard her and her husband having a loud argument. nobody was arrested for any charge related to the argument, but they nailed her for criminal impersonation because she had a warrant for a minor traffic case from a year ago and gave her legal first name, her accurate date of birth, but provided her "married" name - except they are common law married so there is no marriage certificate or anything. common law marriages are when you and your partner hold yourselves out to the community as if you are married, such as if you cohabitate, commingle finances, etc, but dont go through the formal marriage process. its totally legal in my state but is much more common amongst the working class who maybe dont want to spend the money on a license and big ceremony/party
there are also the charges of violation of protection order and violation of bail bond conditions. any time you are accused of a crime in my state, the court puts out a protection order: standard conditions include no contact with the alleged victim, no harassing or intimidating the alleged victim or any witnesses, no drugs or alcohol, and no commission of new offenses. this comes up a lot in domestic violence: a man gets arrested for assaulting his wife and suddenly he cant live at home or even call her. paying double rent is not an option, so if hes lucky he lives with his parents or other family. the presumption is that this order is in effect for the duration of the case, and sentence if the client pleads guilty, so it can go on for years. this actually varies county by county, and in some, the no-contact provision of the protection order expires after a two week "cooling off" period. if the provision is in place, though, it makes no difference if the alleged victim calls them or initiates contact. so a simple charge of harassment, where no physical contact is even alleged, can boil over into several cases because the idiot cant stop getting drunk and texting his wife apologies. its a particularly paternalistic system with obvious good intent based on concepts like the cycle of violence but it really further embroils my clients in the system and erases the agency of the alleged victims
violations of bail bond conditions are similar. if you get arrested and bond out, bonds come with conditions very similar to the protection orders. so if youre out and about and, say, a cop sees you at a bar with a drink in your hand, you can get charged with a new offense and re-incarcerated. sometimes it feels like das argue for letting the client out with the expectation that they will commit one or both of these offenses that are much easier to prove. that may just be my natural cynicism, though
unsurprisingly, simple possession is very common. as i alluded to above, the drug laws in my state were "liberalized" a few years ago, but possession of any schedule I or II substance is still a felony with the threat of prison. a possession charge at least cannot be used against a client in connection with the quasi-three strikes law in my state - if you are convicted of three separate felonies in your lifetime, you can have the sentence range quadrupled for any subsequent felony conviction, and the minimum becomes mandatory. so for the above pawnbroker charge, you're looking at at least 4 years, and potentially 6 with no option for probation. this is discretionary for the prosecution and in my county the threat is usually used as a way of scaring a client out of trial
at the misdemeanor level, domestic violence charges are the most common, and probably the most obviously classist. its much more likely that youll have the cops called on you if youre sharing paper-thin walls with the neighbors as opposed to an acre or two of well-manicured lawn and a privacy fence. the pressures of poverty are also more likely to result in frustration and violent outbursts within the home. but i really hesitate to discuss domestic violence issues; its the hardest part of my job to reconcile with my ideals because it is a huge problem and i dont want to come off as excusing that despicable behavior
cars posted:We have had some discussions here before about the carceral weaponizing of borderline personality disorder diagnoses against women & the above is a gruesome example.
Not to derail this thread but for those curious this discussion seems to start around here and continues for several pages:
cars posted:the provider-vengeance diagnosis used to be BPD which was used as the scarlet letter for "difficult" patients to soothe professionals over their own clinical failures, basically something in the patient's file saying that they should never be trusted and could never be treated. and it was pretty much only given to women with all sorts of contradictory nutty theories trying to backwards justify that & then later reforms in the DSM, etc. made it moderately politically shameful for professionals to give to anyone at all.
that led to an absurd situation where the actual cluster of symptoms currently treated as BPD usually can't be officially diagnosed in anyone in the united states as BPD at the same time treatment is administered for that disorder, since then no one who has the symptoms would likely be able to afford treatment. the scarlet letter era of the diagnosis gives private insurers an ironclad excuse to deny coverage. That has skewed research data for decades since a lot of the research on BPD goes on in the U.S., and investigations of that population, into the cause of the observed clustering, the validity of the disorder itself, etc. now seem bound to produce useless results because most patients considered by providers to be BPD are now "bipolar II" or something similar on paper for purposes of insurance, except for the most extreme cases who are often on lifetime disability.
TG posted:
it's cool how you were able to give six different answers with multiple examples without hitting the two I had in mind when I asked the questions (driving without insurance and disorderly conduct, respectively). it's almost like are a whole shitload of laws that are surprisingly common and/or open to abuse!
thirdplace posted:TG posted:it's cool how you were able to give six different answers with multiple examples without hitting the two I had in mind when I asked the questions (driving without insurance and disorderly conduct, respectively). it's almost like are a whole shitload of laws that are surprisingly common and/or open to abuse!
oh man, good point. this is a product of me progressing in my career, so its been some years since i had to put up with traffic offenses, but theyre the fucking worst. first, a lot of cases start with a traffic stop, even serious ones. a cop isnt supposed to be allowed to contact a person to investigate a crime without what we call a "reasonable suspicion" that they have recently committed or are in the process of committing a crime. this is far short of probable cause, but cops have to point to some reason to believe this - it cant just be a hunch "they were walking late at night in a high-crime neighborhood" etc. however, a minor traffic offense always qualifies. so, if someone is driving around at night with one headlight out, boom, reasonable suspicion. the same is true of the license plate light, a cracked windshield, and any number of ticky tack bullshit things that are technically illegal. once they get to the drivers window, its not hard to come up with some bullshit to support probable cause for something further - the smell of weed, glassy eyes, theres a dog in the cops back seat who can smell the drugs in the car.
beyond that, though, driving under restraint/suspension is a charge that is incredibly frustrating. it means youre caught driving on a suspended license. more often than not, someones license is suspended for traffic related offenses, but a good amount of times its due to financial issues, like non-payment of child support. in my state, licenses are controlled by the department of revenue, so all sorts of administrative issues can be involved. the jail exposure isnt extreme, but the presumption is that it will involve jail or in home detention. das have some discretion, and so its common that theyll let you drag the case out for the client to get his or her license reinstated and then dismiss the case. because that usually involves a lot of money, that doesnt happen very often. so they end up doing a short term in jail - 5, 10, 20 days - the max is 6 months. on top of that, though, state law says if you plead to or are found guilty of a traffic offense while your license is suspended, its re-suspended for a full 12 months. thats not even in the criminal statute, its an administrative penalty by the department of revenue. so, some guy is out of work and misses his child support payment, actually gets a job, gets pulled over for a busted tail light, still cant afford the catch up with his child support payments, goes to jail for a short time, loses his new job, and once more cannot pay child support. this is is not an uncommon fact pattern
driving an uninsured vehicle carries a mandatory $1,000 fine. however, das will often dismiss the charge if the client proves that they got insurance after the offense. all well and good, except they probably couldnt afford insurance to begin with. it has the potential for up to 6 months jail as well
i will admit, in my experience disorderly conduct doesnt come up outside of plea agreements. if a client pleads a misdemeanor assault down to discon, thats a win. however, in my state its a petty offense which means you dont necessarily qualify for a lawyer, so thats why i havent run across it as a charged offense very much. that and noise violations are basically the non-driving equivalent of bs reasons to start an investigatory stop
having never done criminal law, i have no reason to think your experience is unusual; it's just one I see come up all the time on background checks (and a couple times to people i know personally)
Edited by thirdplace ()
thirdplace posted:TG posted:it's cool how you were able to give six different answers with multiple examples without hitting the two I had in mind when I asked the questions (driving without insurance and disorderly conduct, respectively). it's almost like are a whole shitload of laws that are surprisingly common and/or open to abuse!
i would have thought drunk driving would be the most typical example given all the fun surveillance tech that has cropped up around it and the aggressiveness with which its enforced
kamelred posted:thirdplace posted:TG posted:it's cool how you were able to give six different answers with multiple examples without hitting the two I had in mind when I asked the questions (driving without insurance and disorderly conduct, respectively). it's almost like are a whole shitload of laws that are surprisingly common and/or open to abuse!
i would have thought drunk driving would be the most typical example given all the fun surveillance tech that has cropped up around it and the aggressiveness with which its enforced
duis could almost be their own threa. its a fucked up area of the law where they twist some bedrock constitutional principles, like the right against self-incrimination, until theyre basically meaningless
for example, everyone knows the miranda rights from law and order or whatnot: you have the right to remain silent, etc. these go into effect the minute you are in custody, which is a somewhat nebulous concept but basically means, if a reasonable person in the client's shoes would feel that they are contacted by police and not allowed to leave, they are in custody. factors like being cuffed, being in the back of a police car, etc, are obvious examples but not the only factors. now, courts have bent over backwards to say that an initial traffic stop isnt custody until the cop says it is, essentially. this is ridiculous, because if you were to say, later pig, and drive off, youd be in a world of trouble. however, once they driver is told to exit the vehicle its a pretty blatant curtailment of their freedom. this should be when they are told they can clam up and even ask for a lawyer, but they arent. for the purpose of dui investigations, there is no right to remain silent. they can pull you out of the car, slap cuffs on you, and grill you about how much youve had to drink, etc, and those statements will make it in front of a jury. courts have given no reason for this erosion of fundamental constitutional rights other than, well, duis are just different
next we have the chemical tests - blood or breath. taking someones blood or breath is, for constitutional purposes, a search of their person which requires consent or a warrant. the "creative" solution most states have come up with is that they cant force you to give blood or breath but if you refuse to do so when asked, they automatically revoke your license for a year. beyond that, they get to hammer home to the jury that this person didnt consent to an invasive search of their person so that means they must be hiding something. for most any other offense, the prosecutor cannot mention that a client has invoked their constitutional rights, but again, duis are just different
as far as their class implications, it starts with the traffic stop. for somewhat obvious reasons, working class folks tend to be stopped more often in their cars. a brand new bmw or mercedes probably wont have a burnt out tail light or a cracked windshield, and if they do, the owners generally have the time and money to get them fixed. obviously not true for my clients. on top of that, cops decide who gets pulled over and i think we all know who theyre on the lookout for or even where theyre commonly patrolling. thats why i think its awesome that dsa chapters across the country hold brake light clinics, where they fix burnt out lights for free, thereby eliminating a "legitimate" reason for a traffic stop. unfortunately, this doesnt stop pretextual stops where cops flat out lie, but its a start
beyond that, you just have general cop discretion on how to interact with folks during a traffic stop. the smell of an alcoholic beverage on a driver's breath is a very common start for a dui investigation - totally subjective and unprovable. nothing is stopping cops from ignoring this sign on a white, middle class driver or completely inventing it for a driver of color. the driver's performance on roadsides, or the standardized field sobriety tests (never ever do these, they are voluntary and designed to make you fail and give the cop something to harp on for half an hour on the stand), is a subjective thing that is hard to counter unless there is dash cam video, and even then, its still quite difficult. especially the horizontal gaze nystagmus test, where the cops have you follow their pen with your eyes. obviously nobody can see whether your pupils vibrate on a grainy cam video from 20 feet away
as you hinted at, duis can be very complicated cases, with a host of motions issues ripe for litigation and potentially scientific evidence involving chemical testing and expert witnesses. a more experienced colleague likes to say that if you have taken a dui case through to trial, you are basically prepared for any trial, even one with dna evidence
the reason thats pernicious is that public defenders rarely have the time or resources to do an excellent job. i think my colleagues tend to be very intelligent and talented lawyers, but we also have high caseloads. on top of that, private attorneys can milk clients for a lot of money on duis because they involve a lot of prep work and several court hearings, some of which can be very time-consuming. if you dont have several thousand dollars to fight it, you generally plead before any of that work gets done. some attorneys will do a flat rate, but the fine print says that that will only get you to the filing of motions, not the actual hearing or even trial
this point is generally applicable to most cases, but trials are fraught with dangers for clients. the worst case ive ever had for trial was an unemployment insurance fraud situation where client lied and received $30,000+ in illegal benefits over several years, all while making $25+ an hour at a pretty good job with admittedly sporadic hours. it included hundreds of pages of evidence because the department of labor has a whole division of folks devoted to creating airtight cases. all that sucks, but the reason that it was so bad is that it would've been impossible to get a jury sat that didn't hate my client with a burning passion because every juror would technically be a victim if they paid any taxes. no judge would approve a change of venue to another state because of something like that, so good luck with the presumption of innocence
thats an extreme example, but duis can be similar. madd has done a really good job of making people absolutely hate drunk drivers. over the past few decades, the videos of horrifically mangled children's bodies being pried out of twisted steel skeletons by the jaws of life have been imprinted on people's brains. madd is also strong at lobbying and theyve been successful at getting state legislatures to pass laws that should be unconstitutional but are upheld by appellate courts anyway. in many places (although thankfully not really the county where i practice) a dui client is fighting quite the uphill battle. comfortable suburban whites cant wrap their head around a situation where you dont just uber home from a bar. ill be honest, i found myself feeling less sympathy for dui clients - especially ones with multiple arrests for it - because i drink a decent amount and rarely get behind the wheel when im plastered, but i gradually got over that with a little thing i like to call empathy
TG posted:every juror would technically be a victim if they paid any taxes
this is a tangent, but i can't figure out if i misunderstood you or not. are you saying that all crimes against the state should be heard by a jury of people who don't pay taxes to that jurisdiction?
duis are similar in the sense that there is usually no specific victim, unless there was an accident, but the potential victims include everyone who drives a car or walks anywhere near a street. although we had a vehicular homicide case in my county a few years back where the driver was huffing keyboard cleaner and plowed into someone's house, killing some poor guy who was just sitting on his couch
i think you could even extend it further, the whole idea of the community punishing crimes is that crimes harm the community, so jurors should feel just as personally harmed by an assault of someone else as about benefits fraud. of course that is wildly idealistic.
anyway not very important to this thread regardless. you clearly do good work for people and so you can ignore my lay sniping from the margins. i've just been reading a bunch of legal history lately so it's in my head.
mayakovfefe posted:sorry if this is a little incoherent i might edit later
Good post, don't apologise
shriekingviolet posted:i have received some words from an accountless rhizzone reader who prefers to remain anonymous and had a perspective from another side of the system
Okay here it goes.....
On the issue of Women in prison... At least in Canada, where I worked for CSC (Correctional Service Canada) for a couple of years. When we look at women's corrections. It is in some ways radically different than men's. CX's (security officers) call women's facilities "pretend prisons."
On the surface... women's prisons seem radically reformed and the theory of Canadian women's carceral system seems revolutionary. The central text for Canada's women's prisons is a policy document called Creating Choices:
http://www.cwhn.ca/en/node/24840
The gist of it is that women were being treated inhumanely especially indigenous women who were often not visitable by friends and family. Never allowed to see their children and who were aggressively missionized by chaplaincy to the exclusion of other services.
The reforms were intense and in subsequent years scaled back. For example security staff and inmates did not wear uniforms. Everyone was dressed in what they ordered from walmart.
The units were designed to have common areas and a shared rec yard. Things that seem small but were significant breaks with the philosophy of most population management theories at the time. They got more visits. They got a special dialectical behavioural therapy unit for women with borderline personality disorder (it was theorized that up to 80% of incarcerated women have BPD, a truism being passed around.) Efforts were made to introduce indigenous elders into the prisons' support teams and release plans were liberalized to promote family contact and interaction. Also a mother child program that would let new mothers raise infant children up to 5 years old while incarcerated was created.
The only problem... it was fucking prison.
The central issue with any prison is that they are vicious microcosms of the outside world and more than anything the carceral system in Canada is racist.
Deeply racist to indigenous people.
For this reason I severely resent the comment about women having a 5th or 6th chance.... that is only ever true for white women. The graciousness of the women's system is disproportionately awarded to white cis women. Preferably young middleclass cis white women.
Indigenous women make up almost half of women's corrections. And in the maximum security they make up a large number 80-90% in the location I was at.
The application of mental health teams to diagnose and manage the massive mental health problems in the population were at their base a re-hashing of the patriarchal archetype of the madwoman. This new vigor for treatment also created a new avenue for security intelligence to monitor the population. As a member of the mental health team I saw some of my coworkers groomed into security intelligence operatives disguised as mental health workers. I will say those in the prison who were psychologists and occupational therapists were protected from this. It was the DBT coaches, counselors, program officers and non registered mental health workers that were pressed the hardest. It got so bad at one point the inmates stopped talking to our team because they got wise to us.
I eventually left the service cured of belief that you can change something from the inside.
as promised, i spoke with a few female colleagues about this issue and got varied and even contradictory answers. some told me that they think judges take it a bit easier on women clients, especially when it comes to setting bond/bond reductions. because they usually have sole custody of children or family obligations, judges tend to be more likely to lower a bond on a female client or give them a shorter sentence so they can get back to parenting or maintaining a household. having a dependency and neglect case open where the custody of a child is pending can be a sympathetic fact and judges may be hesitant to leave a woman in custody if she is going to lose permanent custody - partially out of humanity but partially knowing that a child caught up in the foster care system is going to have a rough time, to say the least. occasionally the judge presiding over the criminal case will also be presiding over the custody case and will understand what's at stake and take it into account. i also got reports that this can backfire (and personally ive seen it happen) where we will argue that the client needs to get out to return to parenting and the judge will reply with something snotty like, well you werent thinking about your kids when you committed this offense were you?? judges tend to be very paternalistic so will intentionally leave a woman in custody if custody is in the balance, especially if the child is in a stable place with family members
another colleague, who practices entirely in front of one specific female judge, reports that her female clients tend to get the shaft harder and female attorneys get treated worse. this is something i can corroborate because when i practiced in front of the same judge i experienced this first hand. the judge was deferential and borderline flirtatious with male attorneys and just horrid with female ones, and the more attractive the attorney the worse it got. the dynamic was almost painfully transparent. luckily she is retiring in a few weeks
the one thing that every one of my colleagues agreed with is that female clients are more at risk of assault - sexual or otherwise - at the hands of prison guards, while male clients are more at risk of assault from fellow inmates
ultimately the problem with anecdotal evidence like this is that the answer always ends up being more individualized and mostly useless. so much depends on each individual judge, and with some judges, the mood theyre in at the exact moment youre standing in front of them
TG posted:i guess what im getting at is this: am i doing more harm than good? i understand that changing the system is virtually impossible from the inside, especially for a grunt like me, but am i a willing complicitor/enabler? are my clients right to blame me for their troubles, at least on some level?
this is something i grapple with as i work my way slowly but surely through a law degree. i think there is value in being an anomaly in the system even when you have zero chance of changing it. you do something of worth every time you achieve a better outcome for a client than they would have had with someone who didn't give a shit. not to say clients are wrong to blame you for their troubles - to them, you are a cog in a system that's oppressing them. but whether your clients like you or not shouldn't be your main concern.
as far as anything loftier than individual outcomes goes, i would even go so far as to say there is worth in working for reform. i think in particular of one lecturer ive had so far in my studies. she was instrumental in major criminal law reforms in my state regarding rape and sexual assault, bringing about critical changes in the law of consent and things like marital rape. i have a great deal of respect for that and i think these sorts of changes to the system are clearly worthwhile even if on some level it amounts to polishing a turd.
unfortunately, i basically need to do it for another half decade so that i can afford the payments on my student loans until they disappear in an ecstatic jubilee. unless the ten year public service loan forgiveness plan gets taken away. if that happens i will likely self-immolate on the steps of the capitol in a gruesome, admittedly unoriginal protest
one common strategy discussed by public defenders is disrupting the courts by setting everything for trial. the plea bargain was invented to essentially ensure the system actually functions because it would be impossible to have every case stand trial due to obvious logistical constraints. "speedy trial" rights mean you get a trial within 6 months of pleading not guilty. a trial on a simple misdemeanor takes a day and a half or so, maybe just one. trials for felonies can take a full week, for homicides several weeks. in a mid-size county with 6 felony courts and 3 misdemeanor courts that sees ~2,500 felonies, ~3,500 misdemeanors, and about ~3,500 traffic cases filed a year, obviously that would be impossible. theyd need several more courthouses, plus judges (who make nearly $200k/year) and prosecutors - and thats just for a town of a bit over ~100k people. ultimately, however, the decision to go to trial lies with the client, and they generally dont give two shits about the broader strategic game we're playing with the prosecution and courts. they are probably not going to agree to sit in jail for 6 months with felony charges hanging over their heads when they know they can get out on probation on a misdemeanor charge. there's also often a "trial tax", where judges sentence harshly after a guilty verdict as a way of disincentivizing such behavior. this is frowned upon but perfectly legal as long as the sentence is within the statutory range
i am also cynical enough to believe that ultimately state courts and scotus would respond to any system-wide attempts at disruption by eroding and diluting defendants' due process rights. the bulk of a trial's length is usually due to jury selection, which can eat up two thirds of a day on a simple misdemeanor up to a full week on a homicide. i can see that disappearing and just going with the first 12 in the box. time limits already exist on opening statements and closing arguments. i could see that applying to cross examination as well. its possible they could do trials grand jury style, where you have one jury sit for a week or so and just do a parade of quicky trials in front of them
this is a very incomplete and maybe not relevant at all response to the question 'can you be a revolutionary lawyer' but it might help out some people like op who are struggling with finding how to use their position within a system propped up by capital for the masses
belgend posted:the one guy that tried to plead legalistically (not one of our lawyers) got a punishment, the lawyers who played the political argument got away scott free.
im interested to know what you mean by this. bear in mind, i know next to nothing about legal schemes not primarily based off of english common law. it sounds like the guy who got punished made a formalist argument along the lines of, this action was not illegal because it doesnt meet the statutory definition of illegal conduct, whereas the other guy argued more along the lines of, this is terrible, if you punish this man you will water down the legal protections of organized labor and take away the only tool in our armory. is that about it?
TG posted:im interested to know what you mean by this. bear in mind, i know next to nothing about legal schemes not primarily based off of english common law. it sounds like the guy who got punished made a formalist argument along the lines of, this action was not illegal because it doesnt meet the statutory definition of illegal conduct, whereas the other guy argued more along the lines of, this is terrible, if you punish this man you will water down the legal protections of organized labor and take away the only tool in our armory. is that about it?
from what I know of the case this is exactly it
belgend posted:TG posted:im interested to know what you mean by this. bear in mind, i know next to nothing about legal schemes not primarily based off of english common law. it sounds like the guy who got punished made a formalist argument along the lines of, this action was not illegal because it doesnt meet the statutory definition of illegal conduct, whereas the other guy argued more along the lines of, this is terrible, if you punish this man you will water down the legal protections of organized labor and take away the only tool in our armory. is that about it?
from what I know of the case this is exactly it
thats good to hear. we call the latter situation a policy argument over here and its generally the last gasp of a desperate client. good to know it had some legs in that situation. as trial attorneys, we often have to backdoor that argument in front of a jury but it can be often more effective than a technical legal argument, which is why judges are so quick to smack it down