Indiana attorney Paul Odgen has an excellent post this Monday on the new policy of the city of Indianapolis to use civil fines and penalties to sanction unlicensed escorts far in excess of the punishments allowed by Indiana’s criminal law. While the story is beyond the scope of this blog, Ogden does provide us with an excellent analysis of the difference between using criminal and civil punishments, and concludes by specifically discussing this issue in context of civil asset forfeiture:
Unfortunately the reporter missed a critical part of the strategy involved in the City’s treating this as a civil ordinance violation rather as a criminal offense – most of the constitutional protections that apply to protect someone charged with a crime, doesn’t apply if the City treats the offenses as civil ordinance violation.
A person charged with prostitution under criminal law, is entitled to a public defender. The prosecution can’t use evidence obtained during an illegal search against the person charged. Confessions obtained without advisement of one’s rights can’t be used. A person charged with a crime can’t be required to testify and that fact can’t be used against you. The burden of proof is beyond a reasonable doubt.
Now let’s say the prostitute is given a ticket for violating a city ordinance. That is civil in nature. The previously mentioned protections afforded a criminal defendant go out the window. The person doesn’t have a right to a paid public defender if poor. To fight the fine, he or she would have to spend a few thousand dollars to hire an attorney. The government can get in evidence not admissible during a criminal case. The burden of proof is much lower – the government can win with a simple preponderance of the evidence. It’s easier to just pay the ticket.
Prosecutors prefer to bypass the criminal justice stem because virtually all the individual protections in a criminal case are gone when the person enters the civil arena. The odds are so stacked against the individual, most will simply throw in the towel rather than fight. That is exactly the reason prosecutors love civil forfeiture. They can take people’s property away from them without rights guaranteed them under the Constitution.
Regarding civil forfeiture, is it any wonder, the ethical lapses created by a system that allows law enforcement officials to claim other people’s property? Recently a woman told me how when her son was arrestedfor drugs, police officers started walking out with the stepfather’s tools, each claiming ones they liked. (Not sure how fancy tools were used in the use of drugs.) With civil forfeiture laws and lack of judicial and administrative oversight, these ethical transgressions are indirectly condoned.