You can see Part 1 Stasis of Modern Purgatory here, Part 2: Twitter: The Inner Sanctum of Trump’s Mendacity here. Part 3: The Exile as Nationalist: the Stasis of the Golden Cage, here. Part 4: Render unto Caesar, here
Stasis ends in sudden motion or violent internal conflict. The consequences can be complex and unforeseen. Of the different lives I am considering, the cases of Mike Lynch and Arif Naqvi are similar in that they are awaiting the outcome of a judicial process. Emin Milli had emerged from his trial and prison experience but is held in the stasis of exile. Igor Danchenko still does not know his fate. Lynch and Naqvi may face the question of what happens when you are released from the stasis of your confinement and you are finally extradited. Stasis itself takes a toil on your mental strength, your ability to negotiate, your ability of fight. In that state you have to face the process of extradition. Paul Arnell has argued comprehensively that the relationship between mental health and extradition with respect to disorders including post-traumatic stress disorder is in desperate need of reform:
Mental health disorders in UK extradition law and practice are inconsistently and inadequately addressed. The law applying to them is multi-faceted and unnecessarily complex. It is accordingly unpredictable and seemingly random. This position flows from the law’s failure to adequately recognise that mental health cases may raise issues not arising in physical health cases. That much is clear. The steps needed to improve the law, however, will not be easily achieved. This is because, in part, extradition necessarily entails an accommodation of conflicting interests. The desire to address international criminality and to adhere to international extradition agreements can be at odds with the human rights and welfare of requested persons.Paul Arnell, Extradition and Mental Health in UK Law. Crim Law Forum 30, 339–372 (2019). https://doi.org/10.1007/s10609-019-09369-7
At the heart of the conflict that is created at the end of the period of stasis is the mental strength of the individual to protect their own human rights. It is an overused term, but in this experience of extradition after years of stasis we enter a Kafkaesque world, reminiscent of that described by Hannah Arendt writing about Kafka:
In his search for the real reasons for his ordeal, he learns that behind it “a great organization is at work which … not only employs corrupt wardens, stupid inspectors, and examining magistrates … but also has at its disposal a judicial hierarchy of high, indeed of the highest, rank, with an indispensable and numerous retinue of servants, clerks, police and other assistants, perhaps even hangmen.” He hires an advocate, who tells him at once that the only sensible thing to do is to adapt oneself to existing conditions and not to criticize them. He turns to the prison chaplain for advice, and the chaplain preaches the hidden greatness of the system and orders him not to ask for the truth, “for it is not necessary to accept everything as true, one must accept it as necessary.” “A melancholy conclusion,” said K.; “it turns lying into a universal principle.Hannah Arendt, “Franz Kafka: A Revaluation”, Partisan Review, IX/4 1944
It is always startling to me when I remember that Kafka wrote The Trial before Hitler and Stalin were in power. Before the Bolshevik revolution. Before the universe of Auschwitz was created. It was an exploration of the old authoritarianism of the Austro-Hungarian Empire, a tyranny of arbitrary bureaucracy. It was written in 1914 and 1915. It is not surrealist but deeply modernist, in the same way that the futurist worshippers of machines, were modernists.
Kafka described the operation of the state against the individual as a machine designed to induce a shame from which the individual cannot escape. If they are arrested, they must be guilty of something even if it is not the thing they have been accused of. Or, even more terrifying is the sense in Kafka that it is the prisoner or the accused who comes to believe that they must be guilty of something otherwise they would not have been arrested. Take the example of Bukharin, at his show trial in Moscow, saying he could not commit suicide if that would harm the party:
Bukharin: I won’t shoot myself because then people will say that I killed myself so as to harm the party. But if I die, as it were, from an illness, then what will you lose by it? [Laughter.]
Voroshilov: You scoundrel! Keep your trap shut! How vile! How dare you speak like that!
Bukharin: But you must understand—it’s very hard for me to go on living.
Stalin: And it’s easy for us?!
Voroshilov: Did you hear that: ‘I won’t shoot myself, but I will die’?!
Bukharin: It’s easy for you to talk about me. What will you lose, after all? Look, if I am a saboteur, a son of a bitch, then why spare me? I make no claims to anything. I am just describing what’s on my mind, what I am going through. If this in any way entails any political damage, however minute, then, no question about it, I’ll do whatever you say. [Laughter.] Why are you laughing? There is absolutely nothing funny about any of this…J. Arch Getty and Oleg V. Naumov, The Road to Terror. Stalin and the Self-Destruction of the Bolsheviks, 1932–39, New Haven and London, Yale University Press 1999., p 370
The laughter, which is actually recorded in the record of the trial, is reminiscent of Orson Wells watching a screening of his own film of The Trial and laughing so loudly he annoyed other people in the audience. Kafka too used to laugh loudly when reading out loud from the book. As Slavoj Zizek has argued, the 20th century: “is a horror so deep that it can no longer be ‘sublimated’ into tragic dignity, and is, for that reason, approachable only through an eerie imitation/doubling of the parody itself.” [New Left Review I/238•NOV/DEC 1999]
As I wrote in my first blog on this subject: The stasis of house arrest which is neither the full constraint of incarceration nor the state of freedom, is not a human being taking on a form but being deformed. Stasis is also, in the original Greek meaning, a moment of inaction before action, and action of a particular kind.
The action that is awaited is extradition to the US. I have mentioned a number of profound problems with the UK-US Extradition treaty and with the physical treatment of prisoners once they are sent to the US. There is an even deeper problem. When they arrive in the US, they enter a system in which the plea bargain is the foundation of case management, the main lubricant of an otherwise stagnant judicial system overburdened with the politics of crime and punishment. The plea bargain became a common element of the US judicial system at the end of the 19th and in the early 20th century, speeded up rapidly by prohibition. [Alschuler, Albert W. “Plea Bargaining and Its History.” Columbia Law Review 79.1 (1979), p 6] By 1970 the Supreme Court in Brady v. United States, concluded “that plea bargaining was inherent in the criminal law and its administration. Even the dissenters from the Court’s analysis took pains to distinguish the practice at issue in Brady from what they called ‘the venerable institution of plea bargaining.'” In fact as late as 1958 the Supreme Court was trying to make the process of plea bargaining illegal. [Edkins, Vanessa A. “Defense Attorney Plea Recommendations and Client Race: Does Zealous Representation Apply Equally to All?” Law and Human Behavior 35.5 (2011), p 414] They failed and the 1970 decision opened the flood gates. In 2006 “roughly 94% of offenders in state court pleaded guilty. They do so because they know and their lawyers tell them that they will spend longer in jail if the case comes to trial than if they plea bargain. The question is whether this is commiserate with a fair trial.
A fair trial requires that the defendants’ rights are guaranteed:
…to an impartial and independent tribunal and the right to a public hearing”; both the accused and the society have interests that should be reflected by any trial process, including plea bargaining, to justify that trial process as a fair trial…the equality of arms is fundamental in any trial process, which processes include plea bargaining, as otherwise, the lack of parity in the treatment meted out to the parties to a trial can affect the voluntariness of the accused in that trial process.”
Equality of arms means that all parties to the trial should have equal negotiating rights. Is there an equality of arms when someone has been extradited and inducted into an alien legal system? When the deal is done behind closed doors with no public hearing? Where the race of the defendant can influence the defence lawyer to accept a higher sentence? When fear of the length of the sentence that might result from a full trial can intimidate the defendant to bargain away their freedom? Where the accused has surrendered the right to challenge the prosecutor’s evidence?
Joseph K’s story ends with the ultimate existential plea bargain. He accepts death as a means of ending pretrial detention in the endless dance of his due process. His stasis of uncertainty and the impenetrable procedures and the characters running the machine of state of The Trial exhaust him to the point at which he accepts that he must have done something and he goes along quietly, preferring an end to the process to its continuation. Kafka foresaw in 1914/5 the edifice of totalitarian use of due process through the explicability of terror, as Hannah Arendt puts it:
This world actually has come to pass. The generation of the forties and especially those who have the doubtful advantage of having lived under the most terrible regime history has so far produced know that the terror of Kafka adequately represents the true nature of the thing called bureaucracy – the replacing of government by administration and of laws by arbitrary decrees.
The US Department of Justice is not and should never be equated with the Gestapo and the permanent state of exception through which the Nazis governed. But Kafka was writing before totalitarianism and he was describing a governing system that was based on the rule of law but made to operate by bureaucrats whose motives and ambitions are not justice and human rights but case flows and political ambitions. And into this system comes a prisoner released after years of stasis, enduring a brutality that they are not used to that compounds what is already highly likely to be a state of trauma. The vulnerable are then presented with a stark choice. Risk a long and complex trial after which they will get a longer sentence in worse conditions and while they await trial they will also be detained. Or accept a shorter sentence but plead guilty.
Kafka is describing bureaucratic power, backed by law and process, to crush an individual for the purposes of the state. Is there a directing force behind the machine that takes Joseph K by degrees through the process? That will be endlessly debated, but what is certain is that each cog in the machine of destruction knows what is expected of it. The machine and the mechanism of reducing the individual to shame, exists in the US system of prosecution in the institution of the plea bargain.