Civil Criminals

Great Debates
1

This quote from Otto caught my eye:

That’s essentially true, although a bit misleading. It all depends on what “proven” means.

To be arrested, there must be at least probable cause that you’re guilty. To be convicted of a crime, there must exist evidence beyond a reasonable doubt. Both of these are standards of proof.

When property is seized in connection with a crime, similar standards apply. Property may not be seized without at least probable cause, and may not be forfeited without proof by preponderance of the evidence that the property was used to further a crime.

Why is this a new thread in GD, then?

Because in at least two broad areas, governments are using civil in rem proceedings to get what they cannot get with the criminal process.

In DC, for example, the police may seize the car of a person arrested for soliciting a prostitute. If convicted, the car is forfeit. This penalizes the John, perhaps justifiably, but also his co-owner wife, who has done nothing wrong apart from trusting her husband.

Similar measures are applied to houses and cars used to further the drug trade. And, as suggested in the quote above, even without a criminal conviction, the government can seize the property, if they can prove by the lesser preponderance of the evidence standard that the property was used for illegal purposes.

Broad area #2: in some states - Wisconsin comes to mind - persons convicted of certain sexual offenses are now being denied release after they have served their criminal sentence. Wisosnsin’s sexual predator commitment laws provide that if the state can show that the person is more likely than not to re-offend, he may be civilly committed to an institution. This is the same procedure used to justify locking up a potential suicide; “danger to himself or others”. Wisconsin uses this procedure to keep certain offenders locked up even though they have completed their criminal sentences. It’s not a violation of Double Jeopardy, because the second sanction is civil, not criminal, in nature. And, as I suggested earlier, the standard of proof required is the lower “preponderance of the evidence” rather than the more demanding “beyond a reasonable doubt”.

No one disagrees that keeping sexual predators off the street is a noble goal. But I guess I’m suggesting that this approach is wrong. It may be legal - it’s survived a challenge in the Wisconsin Supreme Court - but it’s just not right.

So, too, the seizing of property in ways that injure innocent co-owners, or that’s done in response to a crime, but unsupported by criminal guilt. It’s wrong, too.

No matter the good ends that may be achieved, it should be stopped.

  • Rick
2

Rick:
I agree on both counts. Property seizure should require the same standards of proof as criminal conviction, IMO. However, once that standard of proof is met, I do not have a problem with seizing assets that are held in common with another person. Otherwise, joint ownership would proide far too simple a shelter for ill-gotten gains.

The gocernment already manages to void double-jeapordy by prosecuting offenses in both federal and local courts. I find that disturbing enough. Extending incarceration based upon “likelihood to re-ofend” is venturing into the realm of entrail readers and fulguriators. It has no place in a system of justice. Men should not suffer be punished for statistical tendencies.

The best lack all conviction
The worst are full of passionate intensity.
*

3

I’ve often wondered about “Megan’s Law,” where convicted sexual offenders must register with the city/county they live in, and they in turn notify the community of their new neighbor. If someone does the crime and does the time, this, to me, seems barbaric. Are one-time sexual offenders more prone to do so again? Yes - I won’t deny that statistic. But we’d be better off following up with this criminal with lots and lots of therapy than forcing him to wear a scarlet letter. My thinking here is “innocent until proven guilty” should be on par with “shouldn’t be punished if a crime hasn’t been committed.”

Esprix

4

Regardless of my particular feelings about the above situation…

In this case, I believe the thinking is that it’s better to protect our children from a sexual offender who is likely to (but not guaranteed to) offend again than it is to protect the offender. Give him/her all the therapy in the world - no problem. But protect the kids while you’re at it.

(My kids are old enough now that this wouldn’t be an issue. But when they were younger I’m sure that I’d have actively campaigned for Megan’s law. And when the grandchildren start arriving I’ll probably be in that frame of mind again. It may be a little selfish, but for me a sexual offender’s rights don’t count for much when compared to the safety of my kids/grandkids.)

5

I’m with you; asset forfeiture where there is no conviction is a terrible injustice. I had wondered why anyone would support the idea, until I remembered that far too many people think like this: “You don’t have many suspects who are innocent of a crime. That’s contradictory. If a person is innocent of a crime, then he is not a suspect.”

As for Megan’s Law, someone’s conviction for a sexual assault (or any crime, really) is a matter of public record, so the information should be available to everyone. But should the criminal be forced to be the one to provide the information? I don’t think this is the same thing as punishing for statistics or punishing when no crime has been committed (this is assuming the person was convicted.) My thinking is this:
The information is public.
People would benefit from having the information.
For people to get the information places a burden on someone.
That “someone” should be the criminal, whose sentence for the original crime should include this burden.

6

To me, the “Megan’s Law” people fall into two categories. Those who commit the underlying crime after Megan’s Law was passed have no room to complain; it’s part of the punishment. Molest a kid, you get eight to twenty years PLUS registration as a sex offender forever afterwards.

But those that committed the original crime before Megan’s Law are, in my view, being punished retroactively. This is not fair.

I recognize that no courts agree with me on this, and under *Teague{/i] it’s not an ex post facto penalty. But, dang it, it’s still not right. I have little love for the child molesters of the world, but we should not sacrifice the basic principles of justice in order to get them.

That way lies more ruin.

  • Rick
7

But has there ever been any research that showed that criminal penalties are a deterrent for child molesters? I really doubt that Megan’s Law could have made child molesters choose not to harm children, so the question of whether they committed crimes before or after it passed is irrelevant.

I think that this debate (and many others, including about the death penalty) is predicated on whether a person believes that penalties are corrective, preventative or official vengeance.

8

I like the idea of asset forfeiture, but not the practice. In practice, it’s used too often, with little or no provocation. It places the burned of proof on the accused - who will end up paying legal fees to try and get back something that shouldn’t have been taken from them in the first place. This is much like my feeling on the death penalty - good in theory, but lousy execution. (Was that a pun?)

As for Megan’s laws, they’re bad ideas. It seems a lot of you are thinking Sex Offender = child molester or rapist, but that’s not the case. Peeping toms and indecent exposures are sex offenses as well. Children can be required to register for playing “doctor”.

Hell, even for actual child molesters, it’s a bad idea. Most of those are incest cases, and they can can be rehabilitated. Recidivism worry you?

more data here: http://www.mouthorgan.com/200001/thread017.htm

and here: http://www.mouthorgan.com/200003/thread010.htm
But if you’re feeling scared still, you can just look here: http://www.apbnews.com/resourcecenter/sexoffender/index.html

9

Another serious problem with property seizure is that it distorts law enforcement policy. There’s evidence (admittedly anecdotal) of cases in which criminals were targeted not because their illegal activities were worse than their peers but because their potentially seizable assets were better. Worse yet is the possibility of some serious criminals going untouched while finite law enforcement assets are directed at lesser yet more “profitable” criminals. After all, who’s more likely to own a yacht or sports car; a serial rapist or a drug dealer?

10

Since I hold that penalties should be essentially preventative (in the sense that they should prevent further violations by the proven offender), and since the likelihood is low of many types of sexual offender to correct themselves and render preventative incarceration unnecessary, I support the penalty of life imprisonment with the possibility of parole.

Note that in sexual offenses we mustdistinguish cases of truly monstrous predation (rape, child molestation, etc.) and relatively benign status offenses.

For instance, at one time in California, consenting adults getting caught having sex in public (e.g. in the bushes in a park) would get them on the official sexual offenders list (private communication, San Francisco Sex Information, 1988).

In another example, my neighbor’s 18 year-old son was incduced to plead guilty to statutory rape for having sex with his 17 year-old girlfriend by the threat of prosecution for child molestation. He ended up serving 6 months in the county jail.

He’s the sort to stand on a hilltop in a thunderstorm wearing wet copper armor, shouting ‘All Gods are Bastards!’

11

First of all anything which gets a guilty person off is bad, I don’t care if its double jeopardy or whatever. The whole reason to have laws is so that guilty people can be punished and the idea that if new evidence comes up we should just ignore it is rediculous. So if a guy is in jail and his sentence is up but we know he is going to do the exact same thing when he gets out… DUH!! KEEP HIM LOCKED UP!

Second the taking of cars. If someone uses his car to deliver drugs then he should lose his car. If someone uses his house to sell drugs he should lose his house. Very simple.

Now you do bring up a good point about a wife or something who doesnt know her husband is buying drugs while using the family car. Here is my theory: what happens in the law if the husband was to forge his wife’s signature and sell the car? Its the same exact situation, he is doing something wrong that causes the car to be lost to both of them.

Drugs destroy the world around us. The leats we can do is take the speedboats, fancy cars, and houses away. It helps a little.

12

AvenueB-dude, the problem is not so much that the property is taken, but that it is taken without the accused actually being convicted of anything. A matter of being presumed guilty until proven innocent.

SingleDad, you’re right about the distinguishing the degree of the crimes; not all “sex offenses” are the same. Some of them don’t have a victim and shouldn’t even be crimes in the first place.

13

Avenue, it’s good to see that a one-trick-pony still knows his trick.

  • Rick
14

By the way, we’ve been discussing this in terms of asset forfeiture for drug-related and violent crimes, but let’s not forget our friends, the IRS. Should they suspect you owe them money, they may decide to take it or other property from you, or freeze your assets off. If you think you don’t owe them, you are welcome to try to prove your innocence; they really don’t have to prove your guilt.

Here are some links for further reading on this topic. Both are from government sites; the first covers drug-related seizures; the second is from the IRS.

http://www.usdoj.gov/oig/i9702/i9702p1.htm

http://www.irs.ustreas.gov/plain/bus_info/tax_pro/irm-part/section/36433a.html

15

I have worked with people who have been part of an intensive rehhab facility for sex offenders.

Whilst the state tries to rehabilitate these people maybe it should be more aware of the further victims it is creating.Most of the counsellors find the work extremely stressful to such a degree that they are taken off the unit after a prescribed period six months I think.The counsellors then have counsellors assigned to them.

In the UK we are looking at a system that allows us to lock up offenders without the need to go to trial-these are repeat offenders and if you breach your parole in any way,not only do you go back to finish off your stretch,you will be awarded an extra term.
This is what our register of sex offenders is all about and why the onus is on the offender to provide the correct information.
This was brought in largely because of the case of a group of paedophiles who had raped and murdered several boys in London many years ago.These offenders were due for release and newspapers made sure the public got to know their release addresses.
We just didn’t want them living in our communities to such an extent that they might well have been lynched.
Since then these individuals have confessed to further crimes committed all those years ago and have been jailed for the rest of their naturals,the alternative to this would have ended up with previously law abiding citizens being convicted of the murder if these perverts and going to jail you can imagine how the law would have looked in such a situation.

The first question any revenue official asks is how can this individual account for their assets,mere possesion of assets however unlikely to have been achieved is not taken as proof of that they have been acquired illegally.There have been a number of high profile fraud cases that have failed,Blue Arrow for one,because of the difficulty of proving the paper trail of transactions.We could do with a system that said 'the assets started here and finished there’without the need to prove the intermediate stages.In the case of previously convicted individuals the case is rather differant and probability not proof beyond doubt can be applied.