How our criminal justice system got so out of whack

DSC00260When I graduated law school and began my legal practice I had starry eyed notions about the adversary system and believed that it really worked the way it was supposed to.

On the one side there was a relatively conscientious and ethical prosecutor and the other side a relatively conscientious and ethical defense attorney, with a judge who would be relatively fair and unbiased and would follow the law most of the time.

Theoretically these systems would all mesh together into a system of checks and balances that should ensure that citizens are treated fairly and ethically by the criminal justice system, and that the results are equitable under the true facts and established law.

But it doesn’t work that way in real life.

After three decades practicing law, mostly in the criminal justice and asset forfeiture system, with the federal government as my opponent, I can see the system is way out of whack. It’s even worse under state law, where fundraising through lucrative asset forfeiture cases is used to supplement budget shortfalls.

Asset forfeiture has corrupted the criminal justice system and disrupted the system of checks and balances that previously kept law enforcement corruption and unjust prosecutions more or less under control.

The need to generate forfeiture revenue has perverted law enforcement, causing police to concentrate on activities that generate the most forfeiture revenue instead of solving crimes and apprehending criminals that are not likely to result in forfeiture revenue. It has also resulted in police corruption, with a built in incentive to gerrymander evidence (or withhold exculpatory evidence) in order to win lucrative forfeiture cases, with the revenue it generates kicked back to the seizing agency. It also corrupts individual officers, a portion of whom will succumb to the temptation to steal from the seized loot, with some of them making it a steady practice.

Prosecutors are encouraged to generate large forfeiture judgments with rewards of promotions, public acclaim which might lead to a lucrative big law firm job or judgeship, and government agency awards, which sometimes include cash bonuses.

In the meantime asset forfeitures are becoming more abusive and affecting an ever widening class of people. Innocent third parties are increasingly seeing their assets seized because of criminal activities by some other person, and though never charged with a crime, they have to spend years and substantial sums litigating to get any part of it back. Crime victims’ assets are frequently swept up with the seizures in the criminal case, and even though in reality the assets belong to the victims, the government generally takes some or all of it before giving victims anything.

People frequently have their assets seized and subjected to civil forfeiture without any related criminal case at all – against anyone. See for example the case of the grocery store bank account in Michigan which was seized for “structuring” because the grocers deposited cash in amounts less than $10,000. The government claimed they were structuring the cash deposits in amounts less than $10,000 to avoid the Cash Transaction Report (CTR) reporting requirement; they insisted they were just depositing the cash they took in from selling groceries. The government offered them 20% of their money in settlement, but they persevered in their litigation, and after 11 months and the article in the Economist blog, last week the government relented and agreed to give their money back.

Drug profiles and/or the alerts of magic drug sniffing dogs are considered enough in some jurisdictions for cash seized from travelers stopped on highways or in airports to be treated as proceeds of drug deals — without any other evidence.

Once assets are seized it is a huge, expensive uphill battle for the owner to get them back. Asset forfeiture law is arcane and illogical, and the procedures are mine fields for beginning forfeiture attorneys, much less pro se litigants.

The owner has the burden of proving innocence. And even if they win, they rarely get made whole. Even when the outcome is a complete victory, the client usually won’t be reimbursed for his attorneys’ fees.

Meanwhile completely innocent people lose their forfeiture cases or are forced to settle for pennies on the dollar because they can’t afford to continue to litigate against the deep pocket government, or are ill-equipped to represent themselves.

In later blogs I will illustrate all of the issues I listed above in greater detail with examples from court filings and my own experience. But first I want to explain how the system got to be this way.

Economics and the balance of powers

The system got this out of whack because of imbalances in the relative economic positions of the parties. The prosecution has the power to completely overwhelm its opponent financially, making it unnecessary for the government to ever prove its case. As a result, cases in which substantial assets are seized and forfeiture cases filed without a good faith basis in law and fact are becoming increasingly common. In many of those cases the claimant loses some or all of their seized property without the government ever having to prove grounds for forfeiture. That is a natural consequence of the imbalance of powers in the system.

Think of the criminal justice system as an aquarium. Every part of this system of checks and balances needs to be reasonably balanced in power in order for the system to work. When one fish gets too big and aggressive it starts to kill off the other fish and eventually the entire ecosystem starts to die.

In the criminal justice system, the power and money to finance litigation is overwhelmingly in the hands of the prosecution. Individuals are at a distinct disadvantage.

Even citizens who have money to hire a dream team of the best defense lawyers in the country can’t match the deep pockets of the government.

Prosecutors’ offices are well-funded, with an army of investigators, experts, and other services at their disposal. Added to their already massive powers, prosecutors were given the power to emasculate their opponents instantly by seizing all their assets at the beginning of the case, depriving them of assets needed to hire counsel.

The adversarial system does not work as a system of checks and balances when one party has such overwhelming power over the other party’s ability to mount a defense.

Availability of court-appointed counsel

Criminal defendants whose assets are seized prior to trial, depriving them of the ability to hire counsel, can at least get a court-appointed attorney for their criminal case.

Court appointed counsel could either be from the public defender service, or a contract attorney (“Criminal Justice Act attorney” or “CJA attorney” for those in federal court) — private attorneys who contract out on a case-by-case appointment basis and bill the court after the case is closed.

Many of the lawyers in both groups are experienced, ethical, diligent and competent, but most are underpaid and some are burnt out from the hectic pace of trying to juggle too many cases in order to make a living. Public defenders at least have a steady salary and government benefits, but their pay may not be on a par with prosecutors’ pay scales.

Private CJA counsel have the added burden of generally having to wait until each case is closed before they can even ask to be paid. Court appointed rates are much higher now than what we were paid when I did CJA work in the early 1980s, but it’s still just a fraction of the going rate for attorneys in the geographical area. To make matters worse, there are caps on the compensation per case, and attorneys who exceed that amount have to submit a letter explaining why the case was complex or extended when they submit their bill to the judge.

CJA attorneys have to submit vouchers detailing every minute spent working on the case, and what they did during that time, and then the judge who heard the case scrutinizes the voucher and decides how much to pay the attorney. It often takes weeks or months to get the voucher approved. The judge has the power to cut substantial sums off the amount the attorney will be paid, without explanation. Voucher cuts are common; judges never approve payment above the amount requested in the voucher. An attorney who disagrees with the amount of compensation the judge allows has no right to appeal, but can write a letter asking the judge to reconsider. For obvious reasons, most lawyers don’t accept CJA appointments for very long.

A criminal defendant who is appointed counsel at least has a shot at getting an experienced, diligent lawyer, and a possibility of an excellent lawyer, at the government’s expense. People whose assets are seized but who are not charged with a crime are not so lucky.

Court appointed counsel for civil forfeiture cases

The 1963 Supreme Court case Gideon v. Wainwright guaranteed the right to counsel at the government’s expense for indigent defendants charged with crime. That Constitutional guarantee has not been expanded to apply to civil forfeiture.

When criminal defendants’ property is seized and named in the indictment as criminal forfeiture allegations, they automatically have an attorney if they are indigent — their court-appointed criminal attorney is responsible for defending the criminal forfeiture along with the criminal charges. Third parties who are not charged with any crime do not have any ability to get counsel appointed to defend their interests in the seized property.

If the prosecutor decides to file a civil forfeiture case instead, property owners generally don’t have any right to a court appointed attorney. In federal court the Civil Asset Forfeiture Reform Act of 2000 (CAFRA) created two exceptions to that rule:

  1. If the property owner is charged with the underlying crime in a federal criminal case and has a court appointed criminal attorney the judge may appoint the criminal defense attorney to represent the defendant in the separate civil forfeiture case, but the judge does not have to do so – the decision is completely in the judge’s discretion. Parties not charged with crime do not qualify for this statutory provision.
  2. Another provision of CAFRA gives property owners whose primary residence is the subject of a civil forfeiture case a statutory right to court appointed counsel if they cannot afford to hire an attorney, but they have to ask for it. This provision has rarely been implemented, even though it created a right, and even though CAFRA took effect in 2000. The reason – most forfeiture victims don’t know about it, and if they don’t ask, no one tells them. Also, even when the victim asks for counsel to be appointed under this provision, some judges have gerrymandered exceptions to the rule in order to avoid appointing counsel. More about that in a later blog.

Under most if not all state laws, there is no provision allowing court appointed counsel in civil forfeiture cases.

Except for those two very narrow categories under federal law, property owners whose assets are targeted in civil forfeiture cases and innocent third parties whose assets are seized in a criminal forfeiture case do not qualify for court-appointed counsel at the government’s expense. .

The myth of attorneys’ fees under CAFRA

When the federal civil forfeiture statutes were reformed in 2000 to correct numerous abuses in the forfeiture system, CAFRA created a fee-shifting provision to encourage private attorneys to take on the cases of indigent property owners (or owners rendered indigent by the seizures) with the promise that they could petition to have their attorneys fees’ reimbursed by the government if they “substantially prevail.”

However, claimants are rarely awarded any attorneys’ fees under CAFRA these days. As soon as CAFRA’s fee shifting statute took effect, the courts began creating exceptions to avoid having to make the government pay attorneys’ fees. Those exceptions now swallow the rule.

In the last 10 years a line of case law has developed holding that claimants who settled their cases, did not “substantially prevail” and therefore are not entitled to attorneys’ fees. This obnoxious line of cases evolved from a vague comment in a footnote in the Supreme Court case called Buckhannon Board & Care Home v. West Virginia — a case which did not even involve a settlement.

Prosecutors quickly found ways to use Buckhannon to negate defense counsel’s entitlement to attorneys’ fees under CAFRA. When prosecutors make settlement offers they routinely require the claimant to waive CAFRA attorneys’ fees. Also, forfeiture prosecutors who see they are on the verge of defeat will quickly take action to avoid a litigated judgment against the government. In one of my cases the prosecutor dismissed the forfeiture complaint within hours of learning the state court granted a motion to suppress in the state criminal case. This would have allowed them to argue they voluntarily dismissed the case therefore the claimant was not a prevailing party.

Needless to say, today most forfeiture defense attorneys wouldn’t dare take on an indigent claimant’s case hoping to be paid from CAFRA attorneys’ fees if they prevail. The few attorneys who have been awarded fees (included myself) had to endure repeated appeals by the government, judges slashing fees to a small percentage of the fees actually earned, and technicalities invented to avoid awarding fees.

Those forced to represent themselves make easy prey

Asset forfeiture is a very complicated area of law and beginning forfeiture lawyers frequently make serious mistakes that jeopardize the client’s chance of succeeding. It is very difficult for pro se litigants to have a fighting chance at all.

Going up against pro se litigants is like shooting fish in a barrel for even the greenest prosecutor.

Usually claimants who cannot afford to hire a lawyer lack the education to reasonably defend themselves. Courts generally hold pro se litigants to the same strict procedural rules applicable to lawyers. They typically lose fairly quickly because they miss a deadline or fail to comply with a procedural requirement that they did not know about. Judges impatient with pro se litigants often dismiss their claims over simple mistakes – without making the government prove they had grounds for forfeiture.

The unfortunate result of having forfeiture prosecutors’ typical opponent being lawyers untrained in forfeiture defense and pro se litigants is that it gives rise to a temptation of law enforcement agents and prosecutors to cheat. They begin to cut corners when they are not likely to be challenged — filing cases without thoroughly investigating the facts (or even knowing they don’t have a valid case), or espousing legal theories they know are contrary to precedent, or without conducting research that would show their theory has been rejected by the courts or overridden by legislation.

Forfeiture prosecutors who cheat and get away with it will keep doing it, because they are under pressure to generate forfeiture revenue. The more cases they file without a valid case and then win by overpowering the opponent, the more easy forfeiture bucks they bring in for their agency.

Abuse of power just leads to further abuse of power. Our system of justice will just get further out of whack unless drastic changes are made to bring the relative bargaining positions back into a reasonably acceptable level of balance.

This is just an overview. In later blogs I will go into detail on these various issues with examples from cases I know about first hand. If you have examples to illustrate any of the points I made, I invite your comments.


Note:  I am a lawyer in private practice and I have to support myself in these very trying financial times.  Unfortunately, after 20 years of answering questions from forfeiture victims who called Forfeiture Endangers American Rights Foundation, I no longer give ANY free legal advice.  Please don’t call my law office trying to get free advice, not even “quick questions” — if you have a few quick questions you can purchase 1/2 hour of my time for a phone consultation, by making a PayPal payment here.  Otherwise, go the FEAR website and read the free information available there, and/or purchase FEAR’s low cost self-help materials.