Tuesday, January 04, 2005



Asset forfeiture: the dangers of settlements

In my previous post in this series I raised questions about the government's motives for introducing civil asset-forfeiture. An unhealthy emphasis on revenue led to settlements playing a key role in the system - despite the fact that this would likely reduce its impact on crime. But that isn't the only reason we should be wary of allowing settlements. In particular, there are two key problems which should cause deep unease.

The first is obvious: the same logic which leads suspected criminals to settle with the government also applies to those innocent of any crime whatsoever. Whether a case should be settled is essentially a matter of weighing up the cost of settlement against the expected losses (including the costs of defence) - guilt or innocence has very little to do with it. The same logic applies in criminal cases, but there at least the government must meet the high standard of proof beyond a reasonable doubt, and this discourages it from taking cases where the evidence is questionable. The proposed asset forfeiture regime does not have this safeguard. Instead, the crown must meet a much lower standard of proof - the civil standard of a "balance of probabilities" - and all they have to prove is that the defendant has engaged in criminal activity in the last seven years. Once that is done, the defendant is subject to a reverse onus; they must prove themselves innocent (or rather, prove that the value of their assets can be explained by legitimate income). The evidential burden for restraining property is even lower - all the government needs is "reasonable grounds for belief".

These low standards of proof will produce injustice. Proceedings will be brought against innocent people, and some of them will settle to avoid the costs of defence. The former already happens in the criminal justice system; the latter almost certainly does as well (the problem is we just don't know). With lower standards of evidence, the risks will be that much greater. If we apply the principle that it is better to let the guilty go free than punish the innocent, it is not a risk we should take.

The second problem is more insidious. While asset forfeitures will be handled by an independent "recovery agency", separate from (but co-operating with) police and prosecutors, there is still some danger of leakage between forfeiture settlements and criminal plea-bargaining, essentially allowing wealthy criminals to buy their way out of jail. This already happens in America. In Reefer Madness, Eric Schlosser reports that in some cases, a defendant's willingness to hand over assets is more important in determining their sentence than their degree of actual guilt; in one case, "a major cocaine dealer with a fleet of Learjets" served less than four years in jail - despite being caught with twenty tons of cocaine. If cases are brought concurrently, then this sort of thing will almost certainly begin to happen here; a guilty plea if you only take the car, not contesting seizure of the house if the charges are reduced. The victim will be justice - and in particular the idea that everyone deserves equal justice regardless of wealth.

See also:

Asset forfeiture: "a valuable means of revenue collection"
Asset forfeiture: disappearing concerns
Ahmed Zaoui Standards of Evidence

4 comments:

So the Govt is signalling that it wants to be seen to be sharing in the profits of crime? Once done it, then legalizes certain crimes?

Also I guess it puts the State Judiciary in their place and the Private Law firms in theirs...are you with us?

The latest SOE...is now crime, with justice effectively privatised, albeit State controlled.

Posted by MERC : 1/04/2005 12:25:00 PM

I can understand the tension between maintaining the quality standards necessary to ensure true justice against the high cost of doing so. Justice is not cheap and there will always be preesure to cut corners. That is why we need eternal vigilance.

Yet I had not thought to see a day when a New Zealand government would throw the rule of law out the window in return for the derisory sums expected from asset seizures. This is not the overenthusiastic budget slashing of an out-of-control bean-counter or neo-liberal policy maker. It is a fundamentally anti-justice agenda which seeks to replace sound investigative practice with special powers, plea bargaining for due process and to usurp the role of judges to Crown prosecutors.

The primary punishment against a criminal convicted of any crime is the sentence. This should be enough to ensure that crime doesn't pay but I have no ojection to attaching additional sanctions such as victim compensation or asset forfeiture where appropriate. The time to do this, however, is at sentencing where the trial judge is in possession of all the facts against the accused and in a position to take account of the impact (or probable impact) of all parts of the sentence.

Posted by Greyshade : 1/04/2005 06:19:00 PM

Greyshade, your comments to me are sage. The cost of justice should be high, it is a price worth paying and must not be offset by derisory payments. I too think the plan here is more to undermine the Judiciary than to collect revenue. Mind you, the rednecks won't like it, in the provinces I would outrageously state that up to a third of the economy is "black" (out of tax's way), equally they don't vote...

What is the real agenda? In a very paranoid way I'm beginning to think this Govt. are far too cunning not to have a master plan...mawhaw or maybe not.

Posted by MERC : 1/04/2005 06:55:00 PM

The "master plan" is to get votes by being tough on crime. That's all there is to it. And to do this they are willing to spit on the presumption of innocence and wipe their arse with natural justice.

If you don't want it to succeed, then there's an obvious solution: let the political parties know in no uncertain terms that you favour sensible justice policies, and will not vote for anyone participating in this insane bidding war.

Posted by Idiot/Savant : 1/04/2005 10:44:00 PM