If police officers are not sufficiently deterred by the prospect of evidence being suppressed at a hearing where a person's liberty is in jeopardy, it is a fortiori that they will not be deterred by the possibility of suppression at a civil forfeiture hearing where only the person's property is in jeopardy.
Law enforcement officials have much to gain in the outcome of the issues raised in Scott, and will likely bring challenges to the exclusionary rule in civil forfeiture. While the court's trend is moving away from applying the exclusionary rule in civil contexts, law enforcement agencies are increasingly relying on civil tools to attack crime. At the forefront of this movement is the use of civil forfeiture to seize the fruits and instrumentalities of the narcotics trade. Civil forfeiture statutes allow law enforcement officers to seize privately held assets that have been used in a crime, a practice that not only frustrates narcotics traffic, but also fills public coffers (Crandley, 2001)."
In instances across the nation drug dealers are losing their homes, their vehicles, their boats and their stock portfolios once the court decides that those items were purchased with money obtained through illegal drug sales.
It is a practice that is more than a decade old and is evidence of the validity of using civil sanctions to punish criminal defendants once they have been convicted of the crimes they are accused of committing.
While criminal trials have bound very tightly by rules with regard to burdens of proof and other elements civil forfeiture statutes require a much lower burden of proof, thereby making the cost to the government to try such cases actually less expensive.
With a lower burden of proof the government does not have to invest as much time and as much manpower into carrying that case.
When the landmark 1958 case was ruled on in One Plymouth Sedan the court ruled that:
The application of the exclusionary rule in civil forfeiture actions is unnecessary and of little additional benefit, particularly when the property is owned by a third party claimant who has not been convicted of any offense. To date the United States Supreme Court has rejected application of the exclusionary rule to civil cases, and we decline to do so as well in this civil forfeiture case (Crandley, 2001)."
In the 1980's a Maryland court upheld a ruling with regard to criminal activity, civil sanctions and the exclusionary rule when it stated:
Has One 1958 Plymouth Sedan, whatever it stood for, retained its vitality over the thirty-three years since it was handed down? No, it has not (Crandley, 2001)."
As one can see by historic fact, the support for using civil sanctions to punish criminal actions is not a new one, but is one that has been reserved for the most part to be used in drug cases. Using civil sanctions to control crime in other areas, including embezzlement and theft would be an effective tool as well.
Civil sanctions are not a new concept when it comes to the crime of human rights violations.
Civil and political sanctions applied on an individual basis and with due process for the defendant serve an important function as one of the accountability mechanisms available to redress massive violations of human rights (Nanda, 1998, 54). It starts from the premise that, as a matter of policy, there must be accountability and no political tradeoffs which result in the sacrifice of justice at the altar of perceived but illusory peace, for the dichotomy is false, as justice is a prerequisite for obtaining a peace that is to endure (Nanda, 1998, 54).
The existing legal framework, notwithstanding several gaps and weaknesses, suffices to reach the jus cogens violations, war crimes, crimes against humanity, genocide and torture and other egregious and heinous human rights violations as well (Nanda, 1998, 54). However, both national and international implementation and enforcement mechanisms are inadequate and ineffective, and several recommendations have been offered to remedy the situation (Nanda, 1998, 54)."
Bringing it All Together
Anytime there is a discussion about sanctioning criminals there are four elements that must be addressed.
The society which has gone through the trauma in question
The world order
An expert in sanctioning goals, Professor Michael Reisman, recently pinpointed the purpose of sanctions of any type. He said that the goal of sanctioning must be for the protection, restoration and improvement of public order.
This can apply to both criminal and civil sanctions and can be effectively measured to understand the validity of each sanction type.
When the famous television and magazine personality Martha Stewart was convicted of insider trading several years ago there was a public outpouring of sympathy when the judge ordered her to prison.
Many believed it would have been more effective to the restoration of public order to make Stewart pay many times over in damages the money she saved with her crime. It would have been a perfect opportunity to use civil sanctions to control crime because others who are in positions of power would have seen it done and possibly decided it as not worth the risk to their stocks and wealth to try the same crime.
It is worth noting that the role of civil and political sanctions, that is, non-criminal sanctions, is not a new one for addressing war crimes and other egregious violations of human rights. After World War II, several European countries extensively used civil and political sanctions, in addition to criminal sanctions, against those who had collaborated with the Nazis and the fascists. To illustrate, in France, more than 11,000 alleged collaborators with the Vichy regime received some form of sanction for their wartime activities and nearly 1,000 politicians, 6,000 teachers and 500 diplomats were removed from office (Nanda, 1998, 54)."
While it is not a new concept when it comes to war crimes, it is relatively new to use civil sanctions to control everyday criminal activity.
Prodded on first by the U.S., then by the Financial Action Task Force of the OECD, and more recently by the United Nations, the pursuit of the "proceeds of crime" has been elevated to the status of a Crusade (Naylor, 2001). A new crime -- money laundering -- has been put on the books of many countries (Naylor, 2001). Various new reporting requirements have been imposed on financial institutions, which have been forcibly recruited into the struggle (Naylor, 2001). In addition, law enforcement agencies now host special units responsible for arresting not malefactors, but bank accounts, investment portfolios, houses, cars, and even Rolex watches (Naylor, 2001). These initiatives are closely related. Anti-money-laundering regulations require detailed information that helps to create a paper trail to aid tracing and seizing criminal money. They also create new offenses to justify such seizures (Naylor, 2001)."
For many years civil sanctions have been used to deter a small segment of the criminal element. Crimes against human rights is one that has always provided the use of civil sanctions but recently, the legal system has begun to move in the direction of using civil sanctions to control crime in other areas as well. The use of civil sanctions by way of seizing boats, homes and bank accounts of drug dealers has been around for a few years and not only provides a deterrent for the criminal who does not want to go to prison and leave his family penniless because it all got taken in a civil sanction but it provides a deterrent to possible future drug dealers who do not want to lose everything they have built by getting caught selling drugs and not being able to prove their possessions came from honest wages. The use of civil sanctions to deter crime can also be seen in law suits such as the OJ Simpson suit.
The time has come to introduce the use of civil sanctions to control crime in America. It will help alleviate jail overcrowding, it will benefit society by putting money back into the pocket it was taken from through crime and it will serve as a control for would be criminals to stop and think about whether it will be worth it.
Crandley, Mark J (2001) a Plymouth, a parolee, and the police: the case for the exclusionary rule in civil forfeiture after Pennsylvania Board of Probation and Parole v. Scott.
Albany Law Review
Bilionis, Louis D. (1998) Process, the Constitution, and substantive criminal law.
Michigan Law Review
Nanda, Ved P. (1998) Civil and political sanctions as an accountability mechanism for massive violations of human rights. Denver Journal of International Law and Policy
Melenyzer, Lisa (1999) Double jeopardy protection from civil sanctions after Hudson v. United…