Alongside Sen. Rand Paul, Supreme Court Justice Clarence Thomas has become one of the most high-profile critics of “civil forfeiture.” Under this appalling practice, police can confiscate property, even from those who haven’t been charged with a crime. In a concurrence released last month, Justice Thomas surprised many when he slammed the practice as “egregious” and questioned if it’s even constitutional. Although his concurrence was brief—just six pages—Justice Thomas identified many of the glaring defects in civil forfeiture. [Read More]
I wonder if an ironic twist to some of the legal processes unveiled in Mr. Dieterle’s excellent blog-post on over-criminalization might lie in a civil RICO action by Caring Hearts against CMS? Congress passed RICO in 1970 as part of an omnibus statute – the Organized Crime Control Act – mainly to stop the racketeering activities of the Italian-American Mafia. It contained, or some might say conflated, criminal and civil sanctions to effect its purposes. By the 1980s and 1990s both prosecutors and civil litigants were using RICO. The result on one hand was the end of the Mafia’s power. On the other hand, however, RICO’s notoriously expansive and elusive provisions led to an explosion of federal criminal and civil cases against all manner of defendants, including most famously abortion protestors. In these decades there were numerous calls for RICO reform, especially to tamp down on civil litigation, but these efforts largely failed.
One of the most fecund sources of civil litigation lies in the fact that mail and wire fraud are two of RICO’s notorious “predicate acts.” Federal fraud concepts have themselves expanded promiscuously, incorporating by the 1980s the idea that public officials might defraud citizens of the intangible right of “honest services.” One might easily imagine, then, inventive counsel for Caring Hearts using a theory that continual (criminally negligent) misinterpretation of enabling statutes, or guiding regulations, rises to the level of fraud. If it occurs more than twice it’s a racketeering activity triggering civil RICO. The cycle of over-criminalization, finely elucidated by Mr. Dieterle, continues apace!
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Jack Epstein resides in Athens Ohio. He holds a JD from Tulane University, and is currently finishing a PhD dissertation on the history of the RICO statute.
Claimants under the innocent owner defense must establish standing, both statutory standing under Rule G and Article III standing. In United States v. Funds in the Amount of $239,400 in Currency, the government argued that the standing requirement demanded that a claimant show a “legitimate” ownership interest in the property. The claimant, John Valdes, was on a train traveling from Boston to Los Angeles. A drug sniffing dog took an interest in Mr. Valdes, and the DEA stopped him. Mr. Valdes had $239,400 in cash with him. [Read More]
Though many complain that the forfeiture laws are tilted in the government’s favor, one advantage that claimants enjoy is their right to collect attorney’s fees when they prevail in a civil case. This past September, a panel of the United States Court of Appeals for the Sixth Circuit unanimously upheld the right of an innocent owner to collect his or her attorney’s fees in defending property from civil forfeiture. [Read More]
Civil forfeiture is a powerful tool for dismantling criminal enterprises. Eliminating the profit from crime decreases the incentive to break the law. And drying up a criminal organization’s financial resources can hasten its demise. But with great government power comes the potential for abuse. [Read More]