Texas has a barratry problem.  Not that it’s alone, but its problem is sufficiently troubling that it’s trying to do something about it.  For those unaware, barratry is, inter alia, the solicitation of legal representation, often referred to as ambulance chasing. 

Mark Bennett, no fan of barratry, notes a pending change in Texas law that creates a civil cause of action for barratry by a person solicited, who did not succumb to the lure, which provides for damages:

(1) a penalty in the amount of $10,000; (2) actual damages caused by the prohibited conduct; and (3) reasonable and necessary attorney’s fees.

The actual damages caused would be de minimus, if anything, but the penalty of $10,000 plus attorney’s fees is some serious money.

Walter Olson wrote about a major league fax spammer could be bankrupted by a $400 million class action under a class action by the imposition of a $500 penalty per fax (which could potentially be trebled, I might add).  Again, the actual damages might be the electric, piece of paper and opportunity cost of thirty seconds of fax time.

The forfeiture of assets, home, bank account, car, is characterized as civil.  So is the incarceration of sex offenders who have completed their sentence but are deemed too dangerous to be let out.  The inclusion of a name on a registry, thus assuring that a person carries the stigma of perpetual hatred plus the inability to live or work like a normal person, is civil.  Banishment from the land based upon the conviction of an aggravated felony is civil. 

The distinction is that punishments, ranging from fines to loss of property and rights to imprisonment, by being characterized by legislators as “civil” and by the courts’ willing acquiescence in this scheme, have created a secondary criminal law, often enforced privately or by alternative government agencies, that evade the protections afforded those facing criminal sanctions.  No lawyer.  The burden of proof falls from beyond a reasonable doubt to as low as probable cause in some cases.  No right to confront witnesses, and the thinnest of due process.

Bennett characterizes this as “overcivilization.”

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.

In some respects, this presents a greater systemic problem than overcriminalization, which (just to be clear) goes far beyond the mere draconian penalties for hypertechnical violations, but extends to criminalizing a mindlessly broad swathe of otherwise innocent conduct in order to “fix” a specific but extremely rare problem by laws that have far-ranging unintended consequences.

What’s curious about the phenomenon of overcivilization is that it involves people who society loves to hate, such as ambulance chasing lawyers or junk faxers.  There will be no groundswell of either support or sympathy for such types, and most of us would be all too happy to be first on line to give them a good, hard smack.  We don’t care for the things they do.

But this isn’t about liking them, or approving of their conduct.  It’s about the abuse of the “legal fiction” of calling something “civil” to circumvent the bundle of rights that is encompassed in a criminal prosecution.  If the government wants to punish conduct it deems bad, we can debate whether it’s bad enough to be worthy of criminalization, or whether the law is overbroad or unnecessary, but at least those accused and prosecuted are assured of certain rights.  Not those who are subject to criminal punishment, but whose wrongs are called civil.

The courts are at the forefront of this scheme, willingly relying on the legislative sham of allowing the prosecution to be conducted privately, or such legal fiction as in rem forfeitures, where the property (rather than the property owner) offends the sovereign.  Years ago, there was a popular maxim that “the law abhors a forfeiture.” 

Today, the law loves a forfeiture, and enables it in a process that not only facilitates it in a way that essentially precludes opposition, but does so in a circular action, depriving a person of the assets needed to defend his property (and often his freedom, as they tend to happen in conjunction with a criminal proceeding), and then justifying the deprivation by the post hoc forfeiture and conviction.  You see, he was guilty, so the government was right to first seize his assets and deny him the ability to defend, as proved by the fact that he was later convicted.  A sweet circle.

This could all be remedied in a snap, by distinguishing criminal from civil based upon the nature of the penalty/damages imposed.  Very simply, a criminal sanction is one that results in a fine/penalty unrelated to actual damage suffered, imprisonment, banishment or forfeiture, the same punishments imposed for the conviction for a crime.

Significantly, the legitimacy of the imposition of these sanctions is based upon the application of the legitimate sentencing principles rather than the anger and payback felt by jurors or the gut feeling of a judge.  Imagine, for the sake of making a point by a ridiculously extreme example, that the first instance of barratry resulted in a $10,000 fine, but failed to make it’s point and the perpetrator continued to solicit clients.  A second suit was shrugged off as well, with another $10,000 paid by the laughing lawyer. 

What if the Texas law provided as a recourse for the third time a lawyer was found to have engaged in barratry a “civil execution.”  That’s right, put the sucker to death, as he clearly hasn’t learned his lesson and, well, this is Texas, where life is cheap and barbecue is a religion.  It’s completely absurd, right?  But as Bennett notes:

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).

Since the whole point of the law is to put a stop to barratry, and if the lesser sanctions don’t do the trick, then why not go all in?  After all, it’s only a civil execution, and nobody really likes these guys anyway.