Posted on August 07, 2011 in Uncategorized

Scott Greenfield and others decry "overcriminalization"-the attachment of criminal penalties to mala prohibita regulatory violations that include no culpable mental state:

The problem is that regulatory violations sometimes result in fines and orders to change procedures, but other times result in criminal prosecutions resulting in extraordinarily harsh prison sentences for people who make a business mistake.

If overcriminalization is the application of criminal procedure to what should properly be civil matters, overcivilization is the application of civil procedure to what should properly be criminal matters.

Where overcriminalization is characterized by draconian penalties for easy-to-prove technical violations of a sort that is traditionally civil, overcivilization is characterized by relaxed rules for exacting penalties for offenses that are traditionally criminal.

For example: civil commitment for sex offenders and, in the UK, Anti-social Behavior Orders (ASBOs).

Or a $10,000 fixed civil penalty for barratry (in that post I focus only on the sending-letters-to-the-accused-within-31-days definition of barratry; there are many other ways to commit barratry-for example, with misleading solicitations-that could form the basis for a lawsuit under 82.0651 and survive summary judgment even if the 30-day waiting period is unconstitutional.).

The new Section 82.0651 of the Texas Government code, allowing people who have been subjected to solicitation by lawyers to sue the lawyers for $10,000, is a bounty on barratry. It outsources the prosecutorial function to private citizens who have not been harmed, and moves what belongs in criminal court-with due process, the presumption of innocence, and proof beyond a reasonable doubt-into civil court. Criminal barratry is a third-degree felony, carrying up to ten years in prison and a fine of up to $10,000, but the more severe consequence of barratry for a lawyer is disbarment. By encouraging solicited people who haven't been harmed to bring soliciting lawyers to court, Texas makes it much more likely that barratry will be punished, not only with fines but also with disciplinary sanctions (because barratry is sanctionable whether it results in a conviction or not).

Barratry may be a special case: those who commit it often have more assets than the average criminal, and they must commit it in the view of at least one non-party (the solicited person). But in this brave new world of private prosecution of crimes against the state, what other crimes will the state enlist the citizenry public to prosecute?

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