Your Money AND Your Life
by Wendy McElroy
Saturday, November 20, 1999

According to the Fifth Amendment of the Constitution, no one may be "subject for the same offense to be twice put in jeopardy of life or limb." The amendment was meant to protect individuals from being targeted for persistent persecution by the State.

In 1989 (Halper), the U.S. Supreme Court held that the Fifth Amendment prohibited not only multiple prosecution in criminal court, but also use of the civil court to punish an act that had been subjected to a criminal proceeding. (In the Halper case, the government had imposed a civil fine of $130,000 for a crime involving $585.) Unfortunately, more recent Supreme Court decisions have reversed this position.

In the last decade, the civil courts have been increasingly used to punish people for criminal acts even if they have been exonerated in a criminal proceeding. In 1991, when a criminal court found four L.A. policemen not guilty of using excessive force against Rodney King, they were tried in civil court for the same act under the new charge of violating King's civil rights. When O.J. Simpson was found not guilty of murder, the family of the victims brought suit against him in civil court.

Indeed, alleged criminal behavior is more likely to be punished in civil courts than criminal ones because of differences in their procedures. In civil court, there is no presumption of innocence or accompanying requirement to prove guilt beyond a reasonable doubt (99%+ certainty): only a preponderance of the evidence (51%) is necessary. Civil court offers no right against self-incrimination and the accused can be forced to testify.

Moreover, a verdict does not require a unanimous vote of the jury and standards of evidence are much looser because civil punishments are considered far less severe than criminal ones. And it is true: a civil court can not imprison a defendant. But he might lose his business, access to his children, his life savings, his reputation. Many people would prefer imprisonment to losing the home in which their children sleep.

Asset forfeiture laws by which officials are permitted to confiscate property involved in a possible crime (e.g. the house in which drugs are suspected) have been a strong impetus behind the increased use of civil penalties. In 1996, with regard to the seizure of property involved in a drug case, Chief Justice William H. Rehnquist declared, "We hold that these... civil forfeitures are neither punishment nor criminal for purposes of the double jeopardy clause." The property remains confiscated even if the owner is cleared of charges or never charged at all. To retrieve it, the owner must prove his innocence in a separate proceeding.

Punishing criminal acts through civil remedies blurs the line between 'criminal' and 'civil' that was carefully drawn in the Bill of Rights. Amendment V specifies that "in any criminal case [emphasis added]" no one can be compelled "to be a witness against himself..." Amendment VI opens with the words "In all criminal prosecutions" and proceeds to enumerate such procedural points as "the accused shall enjoy the right to a speedy and public trial." By contrast, Amendment VII deals exclusively with "suits at common law" -- suits in civil court -- and declares "where the value incontroversy shall exceed twenty dollars, the right of trial by jury shall be preserved..." -- twenty dollars being the amount of the largest gold coin then in circulation. In short, three of the ten original Amendments in the Bill of Rights dealt with delineating criminal and civil procedures, and distinguishing them from each other.

Those who framed the Bill of Rights were acutely aware of the judicial injustices from which they or their close ancestors had fled. They knew that those in power, unless restrained, would enrich themselves and punish people by arbitrarily confiscating wealth. Thus, the framers attempted to limit the State's power to seize property unjustly -- that is, without following proper procedures. Clearly, the Bill of Rights intended to separate criminal and civil procedures and to protect the individual from the possible abuse of either.

The separation of 'criminal' and 'civil' is breaking down and the power of the State to confiscate wealth is growing. Under common law -- the evolved English law upon which much of American jurisprudence is based -- civil procedures were basically meant to redress financial grievances that one individual had against another, e.g. a broken contract, some damaged property. Now the State uses civil remedies as a weapon against criminals. This is one of the tyrannical practices which prompted the original colonists to leave their homelands to seek freedom.