The role of civil sanctions in crime control

¶ … role of civil sanctions in crime control. The writer explores the way civil sanctions are already used in criminal cases and argues that taking it step further would benefit everyone involved by alleviating some of the nation's jail overcrowding issues and by providing financial relief to victims of criminals.

For the past several years Americans have been up in arms about the nation's current crime statistics. On any given night of the week one can find a news show that depicts the overcrowding of America's jails, the constant revolving door the court system seems to have with the same few defendants and the loss of hope that victims have that they will ever see justice served.

To be fair, criminal court judges are also at their wits end as they try to handle overfilled courtroom dockets, maintain a sense of order and keep track of how many times a defendant has already been in trouble before deciding what punishment to hand down. Recent history has witnessed Americans taking the law into their own hands, not with acts of vigilantism but with acts of civil summons. Across the nation victims and families of victims in criminal actions are filing civil suits against those who committed the crimes against them or their loved ones. The trial of OJ Simpson was one of the most well-known cases, in which the families of Ron Goldman and Nicole Simpson took the former pro-ball player to civil court and got a many million dollar ruling against him. In Nashville the case of attorney Perry March who killed his wife and then worked with his father to hide the body and escape prosecution for more than a decade has also been sued by his wife's family for the distress his actions caused them. The idea of filing civil suits against criminal defendants is not a new one however, the civil action has nothing to do with the criminal proceedings. With the current overcrowding of America's jails and prisons, and crime including many more types of theft than ever before, the time has come to introduce civil sanctions as a valid method of crime prevention.

On one hand researchers suggest civil remedies are a cheap easy way to implement crime prevention into the justice system. Others feel civil remedies are a waste of time and do not work in all cases and instead criminal punishments are preferable to preventing crime. The fact remains the current method is not being called an overall success and the time has come to introduce further sanctions to try and reduce the crime rate. Using civil sanctions will send a strong message to those who commit crime as well as those thinking about committing a crime.

History

Throughout the history of the nation, criminals have found themselves locked into jails or prisons following their convictions. In addition they may be ordered to pay restitution to the parties that they injured during the commission of their crimes however the restitution did not take pain, suffering and emotional trauma into account. By its very nature restitution is set at whatever actual monetary damages could be proven. For example, if a burglar took $200 worth of crystal from the house he broke into and later pawned that crystal so that it could not be recovered the judge in the case against him may order him to not only serve jail time but also to pay the victims through the courts $200 to replace the valued crystal.

Restitution is not the same as a civil action of sanction. A civil action is filed in civil court and not criminal court and it allows for the request and ability to collect monetary damages beyond the cost of the item stolen, broken or lost. It allows the plaintiff to ask for punitive damages for pain, suffering, emotional damage and other items that are not usually part of a criminal restitution package.

While people have used the civil courts periodically to sue convicted criminals it is usually reserved for suing the most well-known or wealthy of convicts. In addition there have been several attempts throughout the years for criminal defendants to claim that if they are sued in civil court and charged in criminal court they are then victims of the double jeopardy law (Melenyzer, 1999, 32).

However, the Supreme Court decided in Hudson v. U.S. that sanctions imposed on bankers in a civil proceeding did not constitute "criminal punishment" triggering the protection of the Double Jeopardy Clause. The Court also disavowed the method of analysis used since 1989 and reaffirmed the previously-established statutory construction test in U.S. v. Ward (Melenyzer, 1999, 32)."

Crime Control

America has been wrestling with the crime control question for years. With one of the highest incarceration rates worldwide, and nationally publicized jail overcrowding it is becoming evident that the current method of doing things to reduce or control crime is not working.

When the Supreme Court handed down that decision it did discuss the impact it would have when both civil and criminal courts would be able to "weld large sticks" for the same offensive criminal action (Melenyzer, 1999, 32)."

Justice Halper introduced the fact that coordinating prosecutions to be able to go after a defendant in civil and criminal court at the same time could be hard to manage. In addition said Halper it would cost the government more money to prosecute, instead of saving taxpayer dollars in the short-term (Melenyzer, 1999, 32).

He stated in his opinion:

problems come into being when the legislature has authorized both civil and criminal prosecutors to wield big sticks against the same offensive conduct. Because the legislature authorized either stick to be swung, executive branch prosecutors and agency enforcers of the law become the interpreters and implementers of congressional policy as to who should strike first and with which weapons.... It makes sense for each type of enforcer to try to understand why Congress authorized the other enforcement action, and to try to coordinate efforts, rather than to march myopically ahead with only half of the legislative mandate. Congress' primary goal, one assumes, was to effectively combat the evil for which punishment was authorized (Melenyzer, 1999, 32)"

Coordinated prosecution may be the best compromise available to address the double jeopardy issue as it pertains to civil sanctions (Melenyzer, 1999, 32). Such prosecutions protect the interests of the individual against the threat of successive and continuing punishments by the government, while addressing the public's need to adequately and fully punish a perpetrator for crimes against the public (Melenyzer, 1999, 32).

Historically civil punishment has been withheld when criminal action is taken, however, in light of the current state of affairs in America's criminal justice system turning to civil sanctions as method to control crime may be effective in certain cases.

When

It is important to distinguish between the horrific and violent crimes that would warrant prison terms for those convicted of them and the crimes in which a civil sanction may work to deter the offender from ever re-offending and others from following in the same footsteps.

There are many types of crimes that do not fall under violence but do have victims just the same.

Crimes including embezzlement, Internet crime, burglary, and other crimes in which there generally is no violence may be viable candidates for imposing civil sanctions instead of criminal sanctions for the purpose of crime control.

Few experts would argue about having violent felons locked away where they cannot harm again, however, the question of what to do with non-violent criminals has reared its head many times in recent years.

Usually, in a criminal case, the arrest might make the local newspaper, then the hearing or trial is held and the person who is convicted gets sent off to prison.

Very few people, other than the convict's family ever think twice about the convict or what he or she did to get put in prison.

In the news shows the only criminals that are portrayed for the most part are those who committed horrifically violent crimes and can be sensationalized. When someone commits white collar crimes, or crimes of theft from stores or homes the public rarely hears about the impact those crimes have on not only the victim but the defendant who gets sent off to jail.

Using civil sanctions to reduce and control crime in those situations may be the perfect answer to America's dilemma.

One of the issues that consistently comes up in the case of criminal cases with civil sanctions is the exclusionary rule (Crandley, 2001).

In 1958 there was a landmark decision made with regard to the exclusionary rule in Plymouth Sedan vs Pennsylvania (Crandley, 2001).

In that case "the Court applied the exclusionary rule to civil forfeiture. One Plymouth Sedan remains the only Supreme Court case to apply the rule outside the criminal trial context. Under the analysis employed in Scott, however, the application of the exclusionary rule in civil forfeiture hearings is in serious doubt. 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 victim,

The defendant,

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.