[free-sklyarov] Big Brother is watching you

Rick Moen rick at linuxmafia.com
Mon Jul 23 22:32:23 PDT 2001


begin Joe Barr quotation:

> Why is he still in jail?  I mean, why hasn't he been bailed out?  Do
> our laws allow the FBI to just disappear someone by virtue of their
> arrest?  Is due process an antiquated notion?
> 
> Would a lawyer please explain?

[IANAL.  This is not legal advice.  Lawyers are free to point, stare, and
giggle uncontrollably.]

It's because the issue is not one of civil law.  Civil law is an attempt
to judge a complaint by one party ("A") that the other ("B") has wronged
him, seeking an order that "B" do something (writ of mandamus), not do
something (injunction), and/or pay him money to compensate him, and in
some cases also to set an example.  The alleged wrong is called a
"tort".  "A" is called plaintiff; "B" the defendant.  Roughly speaking,
a tort is failure to carry out a duty you owe some other party, or
violation of that party's rights.  Remedies available do _not_ include
imprisonment.

The Sklyarov case is one of _criminal_ law, which is wholly different.  
Perhaps people confuse the two because "B" is still called the
defendant, but "A" is relevant to the case, if at all, only as a
witness.  "B" is brought to trial if and only if a representative of the
state executive branch, the prosecutor, decides it's likely that "B" has
committed a significant violation of the state or Federal criminal code.
"A's" view of the matter need not be consulted; he's not the injured
party in a criminal action.  The theory behind criminal law is that the
defendant is thought to have injured society -- not "A" -- through
outright violation of some serious prohibition.  The wrong in such a
case is _not_ called a tort, but rather a crime.  Remedies of course
can include fines -- which do _not_ go to "A" -- and imprisonment.

Please note that the entire "victim's rights movement" of recent vintage
in the USA is founded on failure to comprehend this basic distinction
between civil and criminal law, and the irrelevance of "A's" alleged
suffering, emotional state, and opinions in the latter.


In the case of Dmitry, it is entirely in the Federal prosecutor's
discretion whether to drop charges.  Such decisions are sometimes made
on the basis of estimated likelihood of conviction (prosecutors hate to 
wreck their conviction percentages), and at other times on political
grounds -- e.g., of a law being so widely hated that further
prosecutions are inadvisable to prosecutors seeking (1) stress-free
weekends and (2) higher office.

Stepping back from the legal framework for a moment, it's interesting to
note that Dmitry _absolutely_ qualifies as a political prisoner.

-- 
Cheers,           "I don't like country music, but I don't mean to denigrate
Rick Moen         those who do.  And, for the people who like country music,
rick at linuxmafia.com         denigrate means 'put down'."      -- Bob Newhart




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