Vive What Différence?
California Lawyer

Vive What Différence?

July 2011

William Rodarmor

As international legal seminars go, it couldn't get much better. It was 2009, and I was lunching at the fancy Table de Robuchon in Paris with three lawyer friends. Anne, a prosecutor, and Philippe, an investigating judge, represented France. Toby, a clinical law professor, represented the U.S., as I did. (I long ago traded law for journalism, but still have a lively interest in it.) We talked of many things over foie gras de canard frais cuit au torchon, but we kept coming back to the striking differences between the French and American approaches to criminal law.

For all their sophistication, the French are often surprised by aspects of our judicial system that we take for granted, such as our complex state-federal-local legal structure and the fact that most American prosecutors and judges are elected, not appointed. And a visitor from Paris, accustomed to French judges' hands-off manner, would be struck by a U.S. judge in a "sobriety court" who treats the addicts before him as errant family members to be helped with a mixture of love and firmness.

My thoughts returned to that lunchtime conversation recently when I read news accounts of the legal problems faced by Dominique Strauss-Kahn. Until his arrest on a rape charge in New York, "DSK" was the head of the International Monetary Fund and the leading Socialist candidate for the French presidency.

Some of my French friends say they were shocked by images of Strauss-Kahn on television, first in handcuffs and later in court. They were also amazed that initially he was refused bail and sent instead to jail on Rikers Island. In both instances, they say, he was treated like a common criminal.

Of course, that's exactly the point. Here in the U.S., we try to be democratic, treating all our criminal defendants the same way. The fact that Strauss-Kahn is an international political figure is no reason to treat him differently.

But perhaps that's the problem: We treat everybody in the worst way, instead of the best. In France cameras are barred from courtrooms out of respect for a citizen's honor and public image, and criminal defendants there are not photographed or paraded around in handcuffs. And prisoners in French jails are addressed as "Monsieur" or "Madame"--a convention American wardens might find laughable, even in translation.

Not that the French system doesn't have its faults. Prison overcrowding has been a persistent problem, and a wave of inmate suicides made the news two years ago. Also, because terrorism prosecutions are centralized in Paris, defendants in those cases are often housed together in the same prisons, where they can communicate with each other and radicalize other inmates.

French prosecutors are quicker to file conspiracy charges than we are, and wiretap orders are laughably easy to get. In France, a cop can fax a request to a judge and get permission for a wiretap in a matter of hours.

Many of these differences stem from dueling concepts of privacy. In the United States, we tend to view government as the threat to our privacy. In France, it's the media. If French reporters had dug into Strauss-Kahn's past when he was being considered for the IMF post, for example, they would have uncovered not just a string of extramarital affairs--which is nobody's business except his wife's--but also a 2002 episode of what sounds like attempted rape. (The woman decided not to press charges at the time, but is said to be having second thoughts.)

By contrast, the French casually accept a level of governmental intrusion that would make most Americans gasp. For example, I once asked a French writer friend to hold a translation payment for me until I next went to France, so I could avoid the currency conversion fee. He refused, explaining that because the French tax authorities routinely monitor his checking account, they might wonder about what looked like unreported income.

In the final analysis, the U.S. justice system will probably treat Dominique Strauss-Kahn no worse than anyone else. But Americans could learn something from our French friends. We could try to raise our standard of treatment for petty criminals, instead of keeping it low even for the rich and famous.

William Rodarmor is an editor, French translator, and retired lawyer. His latest translation is French Feast: A Traveler's Literary Companion (Whereabouts Press, 2011).

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