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Ending Legal Impoverishment

In a previous post, I wrote about the shameful, but ubiquitous, use of impoverishment by the federal government in prosecuting people. It is one of several obviously harmful practices that have taken over the system of criminal justice in the USA. Let’s put this into perspective.

The U.S. federal government is the most powerful entity in the world. The resources of any individual are negligible compared to those of the federal government. In America, we should be most protective of our individual liberties when facing the situation of the federal government wielding its enormous powers against a private citizen.

So let’s start with the basic concept that, in the USA, an accused person is presumed innocent until proved guilty. Therefore, an accusation (meaning an indictment in criminal cases) is not proof of anything — it is merely an accusation, nothing more. An indicted person is completely innocent and should be so treated until the Feds prove their accusations at trial. An accused person should not be punished prior to trial or have his ability to defend himself impeded in any way.

So, here is my proposal:

1. Abolish the ability of the federal government to seize the assets of an accused person. An accusation is not proof of anything — the accused person is innocent — his assets belong to him unless/until the Feds win a conviction. An alternative solution, if it is impossible to achieve the complete elimination of asset seizure, is to make the Feds pay a penalty for seizure of assets when the defendant is acquitted — the penalty must be large — I propose that the Feds reimburse the acquitted defendant by paying a penalty equal to at least four times the value of the improperly seized assets.

2. Make the accuser, the federal government, bear the full cost of the defendant’s legal costs as they are incurred. Only if the Feds win a conviction against the defendant must the defendant reimburse the Feds for the legal costs of his defense, and then, only that portion of the costs associated with the convicted counts — a defendant does not reimburse the Feds for the legal costs associated with acquitted or hung counts. In addition, the government must pay a penalty on counts that are acquitted — again, the penalty must be large — I propose that the Feds pay the defendant at least four times the legal expenses associated with the defense against the acquitted counts. If a defendant is exonerated on all counts, I would add an additional penalty of substantial damages for false prosecution.

I am not proposing these steps for private suits (although that situation needs reform also) — I am dealing here only with the situation of the state prosecuting private citizens — this is the scenario in which we need to be most aggressive in defending the rights of the individual. The implementation of these reforms would begin to re-introduce balance into a criminal justice system that is now stacked in favor of federal prosecutors:

* It would finally begin to penalize the ubiquitous practice of over-charging in which the Feds heap counts on defendants at will in order to increase their plea bargaining and trial advantages.
* It would mean that Feds could not seize assets to deprive defendants of the ability to hire good lawyers and to rebut charges.
* It would decrease the overwhelming leverage that Feds have in coercing plea deals.
* It would encourage defendants to exercise their Constitutional right to defend themselves at trial rather than yield to plea bargaining pressure.
* It would mean that all defendants have the financial means to defend themselves and to go to trial.
* It would mean that defendants who win would not be financially impoverished by the false indictments.
* It would encourage prosecutors to be responsible and conscientious in their prosecution decisions.

No, I am not optimistic that these reforms will be adopted any time soon. We seem to live in a time of acceptance (even broad encouragement) of intrusive government. But I can always press for change and hope that the act of highlighting solutions, along with the problems, will help clarify the issues so that more people become informed and involved in pushing reforms.

Cara Ellison

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