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.
Thomas, Kimberly A. "Interpersonal Power in the Criminal System." Am. Crim. L. Rev. 50, no. 1 (2013): 247-76.