Posted on
August 7, 2011 in
Scott Greenfield and others decry “overcriminalization”—the attachment of criminal penalties to mala prohibita regulatory violations that include no culpable mental state:
The problem is that regulatory violations sometimes result in fines and orders to change procedures, but other times result in criminal prosecutions resulting in extraordinarily harsh prison sentences for people who make a business mistake.
If overcriminalization is the application of criminal procedure to what should properly be civil matters, overcivilization is the application of civil procedure to what should properly be criminal matters.
Where overcriminalization is characterized by draconian penalties for easy-to-prove technical violations of a sort that is traditionally civil, overcivilization is characterized by relaxed rules for exacting penalties for offenses that are traditionally criminal.
For example: civil commitment for sex offenders and, in the UK, Anti-social Behavior Orders (ASBOs).
Or a $10,000 fixed civil penalty for barratry (in that post I focus only on the sending-letters-to-the-accused-within-31-days definition of barratry; there are many other ways to commit barratry—for example, with misleading solicitations—that could form the basis for a lawsuit under 82.0651 and survive summary judgment even if the 30-day waiting period is unconstitutional.).
The new Section 82.0651 of the Texas Government code, allowing people who have been subjected to solicitation by lawyers to sue the lawyers for $10,000, is a bounty on barratry. It outsources the prosecutorial function to private citizens who have not been harmed, and moves what belongs in criminal court—with due process, the presumption of innocence, and proof beyond a reasonable doubt—into civil court. Criminal barratry is a third-degree felony, carrying up to ten years in prison and a fine of up to $10,000, but the more severe consequence of barratry for a lawyer is disbarment. By encouraging solicited people who haven’t been harmed to bring soliciting lawyers to court, Texas makes it much more likely that barratry will be punished, not only with fines but also with disciplinary sanctions (because barratry is sanctionable whether it results in a conviction or not).
Barratry may be a special case: those who commit it often have more assets than the average criminal, and they must commit it in the view of at least one non-party (the solicited person). But in this brave new world of private prosecution of crimes against the state, what other crimes will the state enlist the citizenry public to prosecute?
Whether the sanctions are “criminal” or “civil,” it is clear our society has become overly punitive.
It seems to me that a third version of this sort of thing is where the prosecutorial function is outsourced not to private citizens but to other government entities. E.g. administrative license suspensions, deportation proceedings, and parole violations that use a less stringent standard of proof or alternate definitions of crimes.
Sounds like Texas is coming late to the game. Both the misuse of civil court rules and the “bounty” system of encouraging predatory lawsuits have been going on for years in California (google “Proposition 65”), not to mention federal laws such as ADA.
But at least it’s not as bad as turning the crimes into regulatory violations, where you’re not even entitled to a trial. I’d much rather be found guilty of some misdemeanor I didn’t do than have an IRS audit determine that I owe them five or six figures that I haven’t got.
In the early 1990’s when BAR-RAT-ry was still a misdemeanor I was assigned as an ADA in Special Crimes. One day I was “notified” that I was the “Chief” of the newly formed Harris County Barratry Task Force. We had Grant $ from some somewhere and as you can imagine the pressure was on seek justice and make good cases….CRIMINALLY. No Civil stuff back then – cept the lawyers. We were even featured on 48hours with Dan Rather and Connie Chung in December 1993 and the piece was titled: “See you in Court”. We were sandwiched between a litigious pro-bono disbarred lawyer from Florida and a Jail House Lawyer filing Briefs for inmates.
We rented an apartment and had hidden camera’s set up; With permission we even generated some bogus 18 wheeler accident reports back when they could be gotten pretty quick legally – and we waited. And waited. And waited. The phone rand once. Finally, out of two weeks of efforts we made two cases: 1) on a funeral home director (who had a prior for prostitution conviction) who preyed on the Hispanic community and refused to release the body of an 18 wheeler accident victim for burial on the day of the funeral unless the family agreed to sign with a particular lawyer “in the Valley”.
Next we got a “big time “runner” whose office was 5 times larger than the now disbarred newbie lawyer who was ignorantly allowing this “runner” to basically practice law under his bar number. Just these two cases resulted in too damn many man hours for the original purpose – to deter ambulance chasing. The first one plead to back time in county court, and the last one got 12 years pen time for bribery to a cop for paying $ for accident reports. He had what he called his “blue team” who allegedly would get him the accident reports before the ink was dry.
Bottom line – so you catch the runner, cut a deal and send him up with a wire to the lawyer. Based on numerous tapes I heard 20 yeas ago it was apparent someone was pointing to the wire as they talked. “Civil” lawyers tend to get tongue-tied upon seeing a wire and it was pretty obvious we had been played. They couldn’t even shoot the breeze about golf the conversation was cut so short.
Bottom Line: without taking a position on the right or wrongness of the actual letter writing in criminal cases, I am very aware of the argument for and against only in criminal cases, and only talking generally here on the topic- all I can say is this: I agree with Mark – Civil $ “bounty” would be the way to go and let the citizen “prosecute”. I mean with all due respect (seriously) isn’t that what a plaintiff’s lawyer really is…a “Civil Prosecutor”? It’s damn near impossible to get a charge criminally due to the many layers the lawyer has put in place he or she and the actual solicitation. Writer-beware I guess…..phew…,good night to all.