Saturday, November 1, 2014

The Death of Justice and the Tyranny of Law

There was a recent article in the New York Times by Shaila Dewan with the provocative title Law Lets I.R.S. Seize Accounts on Suspicion,No Crime Required.  Dewan detailed the plight of small business owners who learned the hard way about civic forfeiture laws.  These people made the mistake of making numerous small deposits in such a way as to make an IRS computer suspect that they were money launderers, presumably involved in the drug trade.  It is apparently easier to just confiscate the funds in the bank accounts than to go to the trouble of actually investigating to determine if any illegal activity is occurring.  The most recent legislative rendering of this law is the Civil Asset Forfeiture ReformAct of 2000.  Not only does this legislation by Congress define the legality of this and other forms of confiscation, it contains a clause claiming that the government agency does not have to have evidence of wrongdoing when it confiscates property.

“Bars dismissal of a complaint on the ground that the Government did not have adequate evidence at the time the complaint was filed to establish the forfeitability of the property.”

In this case, the IRS can confiscate your money by simply filing a form and informing you of what it has done.  If you want your money back you have to file a lawsuit—essentially suing the government for the return of your funds.  There are precise timelines to be met and a long and expensive legal process to follow before you might get your money back.

What the law says is that we—the government agency—have decided that you are guilty, and you will remain guilty until you prove yourself innocent.

This isn’t the way it is supposed to work is it?  Doesn’t the Constitution protect us from things like this?  Well, actually, the Constitution provides little in the way of constraints on what legislatures can do to us.

William J. Stuntz provides an interesting discussion of the failings of the Constitution when it comes to the rights provided to US citizens in his book The Collapse of American Criminal Justice

Stuntz defines two types of criminal laws.  The first are substantive in nature: defining acts that are deemed criminal and the penalties that can be imposed for this behavior.  The second are procedural in that they define which types of actions are available to policing agencies as they try to assign guilt or prevent crimes.  It would seem that a constitution would have to address the restrictions on both types of laws.  He provides an interesting comparison of the US Bill of Rights (1789) and the French National Assembly’s Declaration of the Rights of Man and of the Citizen (1789).  Only eleven weeks separated the introduction of these two documents, yet they were startlingly different in their focus.

The French focused on protecting citizens from the imposition of unjust or unreasonable laws.  Their document included phrases that would thrill libertarians today.

“Liberty consists in the power to do anything that does not injure others....”

“The law has the right to forbid only such actions as are injurious to society....”

“Every man being presumed innocent until he has been pronounced guilty, if it is thought indispensible to arrest him, all severity that may not be necessary to secure his person ought to be strictly suppressed by law.”

The Bill of Rights, on the other hand, focused almost entirely on procedural matters.

“Procedure dominates these texts.  Save for the First Amendment’s protection of speech and religion, nothing in the Bill of Rights limits legislators’ ability to criminalize whatever they wish.  Save for the mild constraints of the Eighth Amendment [cruel and unusual punishments], nothing in the Bill limits the severity of criminal punishment.”

Not being able to comprehend the future, writers of constitutions base their efforts on the past.  The past in the eighteenth century US meant that law was expected to be based on English common law as described in Blackstone’s Commentaries.  This was law as defined by centuries of judicial decisions made in the context of trying to provide justice in balancing the arguments of the abused and the accused.  The founding fathers apparently never dreamed that legislators would supersede this judicial system of law.

Stuntz points out a critical difference between the manner in which justice was dispensed in those days and where our procedural focus has led us today.

“In the eighteenth century as today, criminal defendants enjoyed the right to trial by jury.  But that right meant something quite different two centuries ago: eighteenth century American juries had the power to decide questions of law as well as disputed facts...Jurors at the time of the Founding were not the mere lie detectors they have since become.  They were moral arbiters; their job was to decide both what the defendant did and whether his conduct merited punishment.  Criminal law meant whatever jurors said it meant: their will trumped even Blackstone’s text.”

In that era there were no police departments and no district attorneys.  Criminal law was mostly defined by judges.  If someone believed he had been wronged in any way, the recourse was to file the equivalent of a civil suit seeking damages.

“Early criminal law was more akin to tort law—the law that governs what we now call personal injury litigation—than to contemporary criminal codes enforced by full-time, government-paid prosecutors.  No one thought tort law required constitutional limits: constitutions were needed to restrain governments, not private litigants.”

In Stuntz’s view, the politicization of legislation and law enforcement has been disastrous. It has become common to make district attorneys and judges elected officials.  This tends to lead to situations in which it is almost inevitable that prosecutors, judges, and legislators are team members with similar goals.  Judges once were intended to see that justice is obtained. Today, at best, they are severely limited by legal statutes in what options are available for legal interpretation and sentencing; at worst, they are collaborators in a system designed to convict people as quickly and as cheaply as possible.

“….the notion of electing both the district attorneys who prosecute criminal cases and the judges who try those cases seems uncomfortably close to criminal conviction by local plebiscite on Court TV.”

The Bill of Rights may have been intended to protect those accused of a crime from being abused by the legal system, but laws put on the books have made it easy for prosecutors to be coercive.  Laws became very specific as to what constituted a crime, leaving little leeway for a judge or a jury to have any role to play in determining guilt or innocence.  The number of laws also multiplied allowing prosecutors to charge a defendant for several crimes for seemingly a single offense.  The new set of politician-driven laws also relieved prosecutors of having to prove intent to commit crime.

“The most important change may have come in what lawyers call the law of mens rea, the law of criminal intent.  Traditionally, that body of law required proof that the defendant acted with a state of mind that was worthy of moral blame.  Some vestiges of that earlier state of affairs still exist in American law; the law of homicide is the clearest example.  But for the most part, the concept of wrongful intent—the idea that the state must prove the defendant acted with a ‘guilty mind,’….has gone by the boards.  Criminal intent has become a modest requirement at best, meaningless at worst.”

Proving guilt is hard work and it is costly—so why do it?  The goal of our legal system is to force people to plead guilty.  Trial by jury has essentially disappeared from our nation.  Over 95% percent of defendants plead guilty.  That means that over 95% of those convicted of a crime never had their guilt determined.

How does the prosecutor-judge-legislator team accomplish this extraordinary feat?  There are numerous tools at their disposal.  The death penalty is an excellent motivator for a defendant to plead guilty with a life sentence rather than risk death with the uncertainty of a jury trial.  Harsh mandatory sentences serve the same purpose.  Who would wish to risk a jury trial with a possible 20 year sentence, when offered the option to plead guilty to a lesser charge with a 2 year sentence?  Prosecutors have also been known to threaten family members and friends with prosecution if the defendant does not cooperate.  And then there is the time-honored method of encouraging other defendants to rat out on someone for a reduced sentence in their own case.

“The lack of careful investigation that characterizes most felony prosecutions virtually guarantees that a significant number of innocent defendants are pressured to plead to crimes they did not commit.  And among the much larger universe of guilty defendants, those who are punished most severely are often those who made the worst deals, not those who committed the worst crimes.  Often, the best deals go to defendants who have the most information to sell—meaning those defendants with the most extensive histories of criminal conduct.”

An article in The Economist titled The Kings of theCourtroom addresses the overwhelming power possessed by prosecutors and the possibilities for abuse.  It provides this data:

“A study by Northwestern University Law School’s Centre on Wrongful Convictions found that 46% of documented wrongful capital convictions between 1973 and 2004 could be traced to false testimony by snitches—making them the leading cause of wrongful convictions in death-penalty cases. The Innocence Project keeps a database of Americans convicted of serious crimes but then exonerated by DNA evidence. Of the 318 it lists, 57 involved informants—and 30 of the convicted had entered a guilty plea.”

The arbitrariness of “justice” when prosecutors are free to do anything they please was illustrated by this example:

“In 1996 police found a safe in Stephanie George’s house containing 500g of cocaine. She said it belonged to her ex-boyfriend, who had the key and admitted that it was his. Prosecutors could have charged Ms George with a minor offence: she was obviously too broke to be a drug kingpin. Instead they charged her for everything in the safe, as well as everything her ex-boyfriend had recently sold—and for obstruction of justice because she denied all knowledge of his dealings. She received a mandatory sentence of life without the possibility of parole. Her ex-boyfriend received a lighter penalty because he testified that he had paid her to let him use her house to store drugs. Ms George was released in April, after 17 years, only because Barack Obama commuted her sentence.”

When prohibition was put into law, enforcement was directed at producers and sellers of alcohol.  Individuals were allowed to possess alcohol and drink it within their homes.  When the antidrug laws were put into place mere possession became a crime.  Illegal drug use is at about 10% percent of the population, thus about 30 million citizens are criminals.  This has evolved into a worthless exercise in mass incarceration and racial discrimination.  However, the subject here is the making of bad laws that should be illegal because they produce astonishing violations of civil rights.  The War on Drugs produced what may be the worst example.  We opened this piece with a bit of outrage because people had seen their money confiscated unfairly by the IRS.  That is only the tip of the civil-forfeiture iceberg.

Sarah Stillman wrote a shocking article for The New Yorker titled Taken.  She begins with this lede:

“Under civil forfeiture, Americans who haven’t been charged with wrongdoing can be stripped of their cash, cars, and even homes.”

Law enforcement officials became frustrated with their inability to bring to justice the principals involved in organized crime, particularly those involved in the drug trade.  The intent was to punish by confiscation of property those who could not be punished by criminal statute.  The definition of property associated with criminal activity was quite broad.  One should recognize that this is moving law enforcement into murky areas.

“Forfeiture in its modern form began with federal statutes enacted in the nineteen-seventies and aimed not at waitresses and janitors but at organized-crime bosses and drug lords. Law-enforcement officers were empowered to seize money and goods tied to the production of illegal drugs. Later amendments allowed the seizure of anything thought to have been purchased with tainted funds, whether or not it was connected to the commission of a crime.”

Such forfeitures were comparatively rare until the passage of the Comprehensive Crime Control Act in 1984 and the establishment of a program called Equitable Sharing. 

“It established a special fund that turned over proceeds from forfeitures to the law-enforcement agencies responsible for them. Local police who provided federal assistance were rewarded with a large percentage of the proceeds, through a program called Equitable Sharing. Soon states were crafting their own forfeiture laws.”

“Revenue gains were staggering. At the Justice Department, proceeds from forfeiture soared from twenty-seven million dollars in 1985 to five hundred and fifty-six million in 1993. (Last year, the department took in nearly $4.2 billion in forfeitures, a record.)”

The goal seemed to be the enhancement of law enforcement activities without having to pay for the increase.  The federal government was providing local law enforcement agencies a way to earn money by stopping people and confiscating their property.  The more people stopped, the more money earned.  In 2006, in United States v. $127,000, an appeals court overruled a lower court and ruled that a Latino driver who was stopped with the indicated sum of money in his car provided suspicious enough circumstances that the police could confiscate the funds as drug-related money.  No evidence of a crime existed, and none was needed.

Property forfeitures soared as police officers, law enforcement agencies, and even communities began to depend on this source of income. 

“Many states, facing fiscal crises, have expanded the reach of their forfeiture statutes, and made it easier for law enforcement to use the revenue however they see fit. In some Texas counties, nearly forty per cent of police budgets comes from forfeiture. (Only one state, North Carolina, bans the practice, requiring a criminal conviction before a person’s property can be seized.)”

Not surprisingly, there were abuses of the privilege.  A poorly conceived and poorly executed law aimed at wealthy criminals has ended up the bane of the helpless.

“Yet only a small portion of state and local forfeiture cases target powerful entities. ‘There’s this myth that they’re cracking down on drug cartels and kingpins,’ Lee McGrath, of the Institute for Justice, who recently co-wrote a paper on Georgia’s aggressive use of forfeiture, says. ‘In reality, it’s small amounts, where people aren’t entitled to a public defender, and can’t afford a lawyer, and the only rational response is to walk away from your property, because of the infeasibility of getting your money back.’ In 2011, he reports, fifty-eight local, county, and statewide police forces in Georgia brought in $2.76 million in forfeitures; more than half the items taken were worth less than six hundred and fifty dollars. With minimal oversight, police can then spend nearly all those proceeds, often without reporting where the money has gone.”

The wealthy are capable of receiving considerate treatment from law enforcement in the US, but for the rest of us the nation is beginning to resemble a banana republic.

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