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Is this really a legal system? This is a recurring reaction I encountered when describing my research on the Israeli military court system. What people were asking, in essence, was what possibly could be learned that wasn’t already obvious: that the Israeli state has the power to punish Palestinians and that punishment is what they get. Such skepticism is understandable and, in many ways, is an accurate assessment of the problems and limits of law in the context of conXict and military occupation. But, I would reply, we must think about “law” neither as some pristine ideal nor as a blunt instrument of power. Law is utilized instrumentally in the service of the state, but it is not a monopoly of the state or its agents, as I have elaborated in previous chapters. “Law” also should be apprehended as a terrain on which people act and interact. Responding to skeptics , I would add that despite innumerable problems the Israeli military court system is an institutional setting where some people have spent months, years, or even their entire professional lives; they are not cogs in some machine but professionals engaging in legal work. Certainly, the range of possible outcomes that result from this work is constrained by the politics of the conXict, and the outcomes are predictable—some 90 to 95 C h a p t e r 8 A Suq of Deals Plea Bargaining [P]lea bargaining conjure[s] up images of a Middle Eastern bazaar, in which each transaction . . . involves haggling and haggling anew, in an eVort to obtain the best possible deal. Malcolm Feeley, The Process Is the Punishment1 218 percent of Palestinians who are charged with crimes are convicted. But within the broad patterns there are speciWcities and diVerences, produced through actions and interactions among individuals. Overwhelmingly, the legal work that goes on in the military court system involves plea bargaining. Over 97 percent of all cases in which charges are brought are concluded in this way. In general, plea bargaining demands a concession on the part of the defendant to plead guilty in exchange for a concession from the prosecutor to reduce the charges and/or the sentence being sought. Although the percentage of cases plea-bargained in this court system compares to criminal court systems elsewhere, the nature of the laws (military and emergency) and the relationship between the state and the defendants (occupier and occupied) make plea bargaining a comparatively more “rational” choice for Palestinian defendants and their lawyers. Moreover, the sheer number of cases that have been processed through this system since 1967 in relation to the size of the Palestinian population casts plea bargaining in a light of carceral frenzy. It should be unsurprising that many defense lawyers describe the system disparagingly as a “suq (market) of deals” and themselves as “deal merchants.” But analyzing why people opt to plea-bargain and how plea bargaining occurs draws attention to nuances, strategies, and variations in the practices of various participants. Despite the patterned regularities and institutional constraints that serve to impel and rationalize plea bargaining , it is a process that is neither mechanical nor homogeneous. In this chapter, I analyze the factors that aVect plea bargaining, compare how outcomes are achieved, and describe how legal work and the legal process are perceived by those directly involved in this court system. The Rationalities of Plea Bargaining Plea bargaining is a negotiating process, and the main stakes are “time” and “punishment.” Defense lawyers and prosecutors negotiate over the charges and the merits of evidence in a case in an eVort to come to an arrangement—to “strike a deal”—on the sentence. For the defense, the incentive to plea-bargain is negative: it assumes the likelihood of defeat at trial with the consequence of a higher sentence. For the prosecution, the incentive is positive, albeit also a compromise: it provides a quick, easy, and assured conviction of the accused, saving the time, eVort, and resources that a trial would entail. A SUQ OF DEALS 219 In many criminal court systems, plea bargaining is the routine and predominant way to resolve most cases. Proponents laud its expediency, while detractors deride the “presumption of guilt” that pressures defense lawyers to abandon claims of innocence to come to the table where their task is to negotiate over how much guilt and at what cost to the defendant. In the military court system, the oYcial Israeli position holds that plea bargaining is a just and eYcient resolution to...


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