Thursday, February 03, 2005

When short comments become long winded . . .

Sorry, a brief editorial excursion here as I use this space to circumvent the thousand character limit on comments (instead of being properly chastened by my long windedness and encouraged to make more pithy observations.)

There's a fascinating blog written by an English magistrate here. On it, he discusses the English POCA (proceeds of criminal activities) law, which appears to be similiar to the civil portion of our RICO statute, in that it allows the government to confiscate funds from people suspected of criminal wrongdoing, without affording them the due process protection of a criminal trial. Now, I'm about as conservative as its possible to be on most issues, but that sort of arbitrary government power, without the traditional safeguards against abuse Anglo-American jurisprudence spent a thousand years erecting, sets my teeth on edge. Anyway, below is my response to his (probably rhetorical, actually, and not an invitation to comment) question about how a Victorian judge would respond to that law:

In the United States, what I suspect is the largely equivalent law is part of what is known as the RICO statue - the Racketeering Influenced Corrupt Organizations statute.
I can't speak to details or history of the British POCA, but I can tell you that the US RICO counterpart has become a tool of widespread prosecutorial abuse. For many, many years, the state was required to meet the standard of guilty beyond a reasonable doubt to impose sanctions on the individual. While RICO supporters claim that taking the defendant's funds is merely a civil matter and doesn't constitute punishment in the sense of criminal law, its a pretty dicey equivocation to claim that state confiscation of funds because of alleged criminal behavior doesn't fall under the purview of criminal law. Lowering the standard for criminal punishment from that to the much looser civil law / tort standard of "preponderance of the evidence" - an appropriate standard in civil matters where the state serves only as the referee between two parties and not as one of the litigants - demolishes many of the due process protections afforded criminal defendants.
The original justification for the law - that it was required to combat organized crime - quicky evaporated as prosecutors realized what a powerful tool it could be in the day to day conduct of their business. Indeed, it has reached the point in the US where several years ago, a couple who owned a small video store had their entire business confiscated, because they had available for rent about a dozen films later deemed to be pornographic, in addition to thousands of mainstream titles. Their life's work and livelyhood were taken from them by the state, without the benefit of a criminal trial, or indeed, without criminal charges ever being filed.
So, in answer to your question, I believe that your hypothetical Victorian judge would be horrified at the abuse of power such a law represented. If the law is to be as much for the protection of the innocent from the state as it is for the protection of society from the guilty - and I believe the two functions are ultimately inseparable - then such a law is an outrage to the principles of common law and common justice.


Anonymous Anonymous said...

You dead right...

Over here in the UK we now have ASBO's (Anti-Social Behaviour Orders).The idear was to clear the ranting drunks, druggies & feral teens of the street & shut up noisy negbours.

But now, also applied to a pig farmer who's pigs strayed & at least one demonstrating tree hugger!!!

There always seems to be a bleed over as some inventive copper or solicitor finds extra uses for a new stick!!!

3:31 PM  

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