nafets [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayCivil forfeiture, the process by which the government can seize and take title to property allegedly involved in criminal activity, has become a widespread—and controversial—practice around the country. Some states have enacted laws requiring a criminal conviction before the state can initiate a forfeiture claim, but federal law and the laws of Texas still allow civil forfeiture even when the underlying criminal act does not result in any convictions. A study released in late 2015 by the Institute for Justice (IJ) offers a rather incendiary set of statistics regarding forfeiture by federal law enforcement agencies. It alleges that the Department of Justice (DOJ) and Department of the Treasury (DOT) obtained more property through forfeiture than was stolen by burglars during 2014. While this comparison is far from perfect, it illustrates the scale of forfeiture at the federal level.

Federal law allows the government to bring a civil forfeiture claim to take title to “any property, real or personal…constituting, derived from, or traceable to” various federal criminal offenses. 18 U.S.C. § 981(a)(1). The provisions for civil forfeiture in Texas are similar to the federal statute. A property owner can prevent the forfeiture by appearing at the forfeiture hearing and establishing that the property in question was used “without [their] effective consent,” or was stolen before the commission of the alleged offense. Tex. Code Crim. P. Art. 59.02(h)(1). This often proves difficult, however, since the property owner is not necessarily a required party to a forfeiture proceeding, and therefore is not entitled to notice of the hearing. The names of many forfeiture cases demonstrate this. See, e.g., One 1991 Chevrolet Blazer, et al v. State, 905 S.W.2d 443 (Tex. App.—Amarillo 1995); $18,800 in U.S. Currency, et al v. State, 961 S.W.2d 257 (Tex. App.—Houston [1st Dist.] 1997).

Nothing in federal or state law requires a criminal conviction prior to, or in conjunction with, a civil forfeiture proceeding. The U.S. Supreme Court has even held that an acquittal does not preclude the forfeiture of property related to the alleged offense. United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984). That court and Texas’ highest criminal court have also held that the Double Jeopardy Clause of the Sixth Amendment does not bar a civil forfeiture action after a conviction. United States v. Ursery, 518 U.S. 267 (1996); Fant v. State, 931 S.W.2d 299 (Tex. Crim. App. 1996).

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Calcium sulfateA report released in early 2016 by the National Registry of Exonerations (NRE), a joint project by the University of Michigan Law School and the Northwestern University School of Law, states that courts around the country exonerated 149 people in 2015. This is believed to be the highest number for any year in U.S. history. Texas accounted for more than one-third of the total, with 54 exonerations. The exonerees were serving an average prison sentence of 14 years. “Exoneration” is not a formal legal term, but instead it refers to multiple possible processes by which a person who has been convicted of a criminal offense is essentially cleared of all criminal liability for that offense and, in many cases, any lesser included offense, based on evidence showing that the person is innocent.

Exoneration may occur through a process initiated by an inmate or by the state. An increasing number of jurisdictions maintain conviction integrity units (CIUs) to review cases and identify errors. The NRE report notes that the CIU for Harris County, Texas was responsible for most of the exonerations in Texas in 2014 and 2015. It has been particularly active in reviewing drug possession cases, many of which involve a person charged for possession of something initially believed to be an illegal drug, who pleaded guilty to avoid the risk of a longer sentence. Subsequent testing revealed that the substances were entirely legal.

Since exoneration generally requires new evidence, a petition for habeas corpus is a common method used by defendants. Once a court vacates a sentence, the exoneration process is complete when the prosecutor drops the charges. Without new evidence, however, courts may be unwilling to enter a formal finding of “actual innocence.” This was the case with the former day care owners in Austin convicted of sexual abuse in the early 1990s. The Texas Court of Criminal Appeals vacated their convictions in 2013, but it declined to rule on the question of innocence.

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David Stanley [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia CommonsThe Fifth Circuit Court of Appeals affirmed the conviction of a Texas financier on multiple counts in connection with what the federal government called a “$7.2 billion Ponzi scheme.” United States v. Stanford, No. 12-20411, slip op. (5th Cir., Oct. 29, 2015). A jury convicted the defendant on multiple counts in 2012, and the court sentenced him to 110 years in prison. Grounds for appeal included claims that he was not competent to stand trial, that the court improperly denied his request for a continuance, and that a criminal proceeding that occurs simultaneously with a civil proceeding by the Securities and Exchange Commission (SEC) violates the Double Jeopardy Clause of the Fifth Amendment. The pretrial portion of the case produced multiple reported decisions and interlocutory appeals that illustrate the complexity of a large white-collar criminal case.

Prosecutors filed a twenty-one count indictment against the defendant in June 2009. The counts included wire fraud, 18 U.S.C. § 1343; mail fraud, 18 U.S.C. § 1341; obstruction of an SEC investigation, 18 U.S.C. § 1505; and various conspiracy charges. A lengthy series of motions and appeals began when the trial court granted prosecutors’ motion for revocation of the defendant’s’ release order. 630 F.Supp.2d 751 (S.D. Tex. 2009). The Fifth Circuit affirmed this order, 341 F. App’x 979 (5th Cir. 2009), and then affirmed an order denying the defendant’s motion to reconsider. 367 F. App’x 507 (5th Cir. 2010).

The trial court denied the defendant’s motion for release or for dismissal of the indictment several months later, 722 F.Supp.2d 803 (S.D. Tex. 2010), and the Fifth Circuit affirmed that order. 394 F. App’x 72 (5th Cir. 2010). Shortly afterwards, the U.S. Supreme Court denied the defendant’s first petition for writ of certiorari. 131 S.Ct. 1028 (2011). The defendant filed a motion to determine competency under the Insanity Defense Reform Act of 1984, 18 U.S.C. § 4241 et seq., and the trial court ordered a psychiatric evaluation. 769 F.Supp.2d 1083 (S.D. Tex. 2011).
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Public Domain Pictures [CC0 1.0 (http://creativecommons.org/publicdomain/zero/1.0/)]The Sixth Amendment states that the government may not deny a person representation by counsel in a criminal proceeding. The U.S. Supreme Court recently issued a decision in a case brought by someone who could afford an attorney but was unable to access funds to pay legal fees because the government had frozen their assets before trial. Luis v. United States, 578 U.S. ___ (2016). Prosecutors even admitted that the funds in question were not tied to any alleged criminal activity. The court held that this violated the Sixth Amendment right to counsel.

Federal criminal law allows the government to obtain an injunction freezing a defendant’s assets in cases involving alleged health care or banking offenses. 18 U.S.C. § 1345(a)(2). An injunction issued under this section is not necessarily limited to assets that prosecutors can demonstrate are derived from, or otherwise connected to, an alleged offense. A defendant may also be enjoined from using “property of equivalent value” to any assets allegedly linked to an offense. Id. at § 1345(a)(2)(B)(i).

Prosecutors must file a separate civil action in order to obtain an injunction under § 1345. This type of proceeding bears some similarities to civil forfeiture under federal law. 18 U.S.C. § 981. Both types of cases involve civil claims aimed at assets, but the goal of a forfeiture proceeding is for the government to take title to property involved in a criminal offense. An injunction under § 1345 prevents a defendant from disposing of assets that might be needed as evidence in a prosecution, or to satisfy a future judgment against a defendant. Unfortunately, this type of injunction can potentially prevent a defendant—who has not been convicted of a crime—from accessing any funds at all.

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The U.S. criminal justice system generally divides criminal offenses into two categories:  felonies and misdemeanors. A felony conviction can result in a substantial fine and a lengthy jail or prison term. A misdemeanor conviction, while still creating a criminal record, usually results in a lesser penalty, and for this reason misdemeanors are often considered less “serious” than felonies. Misdemeanor convictions can have a profound impact on a person’s life, however. Recent research has suggested that a vast number of people have pleaded guilty to misdemeanor offenses they probably did not commit, simply to extricate themselves from the system as quickly as possible. The lower degree of scrutiny given to the misdemeanor system seems to have played a role in enabling this practice, which may extend throughout the entire country.

Bart Everson (Flickr: Inmates) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia CommonsTexas law designates individual offenses as misdemeanors or felonies, and it also provides definitions based on the offense’s potential punishment. An offense is a felony if it is “punishable by death or confinement in a penitentiary.” Tex. Pen. Code § 1.07(a)(23). A misdemeanor is “punishable by fine, by confinement in jail,” or both. Id. at § 1.07(a)(31). Misdemeanors are further divided into Classes A through C. Penalties range from a fine of up to $4,000 and/or a jail sentence of up to one year for Class A misdemeanors, to a fine of up to $500 with no jail time for Class C. See Tex. Pen. Code § 12.01 et seq. Federal law uses the same subdivisions for misdemeanors but prescribes different penalties. 18 U.S.C. §§ 3559(a)(6)-(8).

Most rights related to criminal proceedings guaranteed by the Bill of Rights are not dependent on the severity of the alleged offense. The Fourth Amendment protects against unreasonable searches and seizures, whether the offense under investigation is a felony or a misdemeanor. The Fifth Amendment privilege against self-incrimination applies in any court proceeding. A defendant always has the right to confront their accuser under the Sixth Amendment’s Confrontation Clause, and the U.S. Supreme Court has held that no one may be “denied the assistance of counsel as guaranteed by the Sixth Amendment.” Argersinger v. Hamlin, 407 U.S. 25, 38 (1972).

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Targaryen (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia CommonsThe U.S. Securities and Exchange Commission (SEC) is charged with enforcing federal laws against securities fraud, which includes a constantly expanding range of activities. In late 2015, the agency turned its attention to Bitcoin, a virtual payment system that has been the subject of much attention and controversy in recent years. Bitcoins have no physical, tangible form. Instead, they exist as a series of complicated computer transactions and calculations. It is possible to create new Bitcoins by assisting in processing Bitcoin transactions, a process known as “mining.” The SEC filed a civil complaint in late 2015 against two companies engaged in Bitcoin mining, alleging violations of the Securities Act of 1933 and the Securities Exchange Act of 1934. SEC v. Garza, et al, No. 3:15-cv-01760, complaint (D. Conn., Dec. 1, 2015). Although the suit is civil, not criminal, it offers an idea of how financial regulators may approach cases that add elements of cyber crime to securities law.

Federal securities laws regulate the issuance, sale, and exchange of a wide range of intangible assets. The Securities Act and the Securities Exchange Act use similar definitions of “security,” which include familiar items like stocks, notes, bonds, treasury bills, and futures, as well as various other types of investments. 15 U.S.C. §§ 77b(a)(1), 78c(a)(10). Bitcoin is a new, and still relatively unfamiliar, technology, but the SEC is viewing the assets involved in this case as “investment contracts.” Garza, complaint at 1.

Speaking very generally, the Securities Act prohibits fraudulent activities in connection with the issuance of securities, and the Securities Exchange Act prohibits fraud in their secondary sale or exchange. The SEC alleges, however, that the defendants engaged in a typical type of fraud, albeit one “cloaked in technological sophistication and jargon.” They allegedly “sold what they did not own, and misrepresented the nature of what they were selling.” Id.

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By Yikrazuul (Own work) [Public domain], via Wikimedia CommonsA variety of chemical compounds, collectively known as synthetic marijuana or synthetic cannabinoids, have grown in popularity in recent years, but they have also been linked to a wide range of harmful and even fatal effects. These substances mimic the effects of marijuana’s active component, tetrahydrocannabinol (THC). Since marijuana remains illegal under federal law and in Texas, lawmakers have attempted to enact similar bans on synthetic marijuana compounds. New variants, however, are becoming available faster than lawmakers and regulators can ban them. The Texas Legislature passed a law in 2011 that added several types of synthetic marijuana to the state’s list of controlled substances, but it apparently proved to be too narrow. A 2015 law, which took effect in September of last year, vastly expands the list of controlled substances by as many as 1,000 compounds potentially used in synthetic marijuana production.

Synthetic marijuana has been available in various forms in Texas, both in illegal drug markets and in some retail stores with names like K2 and Spice. It is part of a larger class of drugs known as “novel psychoactive substances” (NPS), many of which are produced in Chinese laboratories and exported to markets in North America and Europe. According to the United Nations Office on Drugs and Crime, the total number of known NPS compounds increased worldwide from 126 in 2009 to 450 in 2014. The number of synthetic cannabinoids rose from fewer than 50 to almost 200 in that time period. A rising number of overdoses reportedly related to NPS compounds has led to health alerts from multiple states. The Texas Poison Center has reportedly seen a significant increase in exposures, from 464 in 2013 to 782 the following year.

Lists of controlled substances are typically established by statute, with agencies like the federal Drug Enforcement Administration (DEA) authorized to make modifications through the administrative rulemaking process. Lawmakers are claiming, however, that these processes cannot keep up with the number and variety of NPS compounds available.

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student-loan-debt-1160848_640Student loan debt is a tremendous burden all across the country, with outstanding student loans totaling about $1.2 trillion. One might not think, however, that defaulting on student loans would lead to criminal penalties, but recent news stories have suggested—not entirely accurately—that this is a possibility. The U.S. Marshals Service arrested a Houston man in February 2016, reportedly due to unpaid student loans, but the initial reporting did not tell the full story. While the reason for the arrest was not specifically student loan default, it is worth exploring how a debt collection matter ended up in federal court and led to an arrest.

Debt collection proceedings are civil in nature, not criminal. Federal courts presumably would not have jurisdiction over most debt collection matters. Even if the creditor and debtor were in different states, few debt collection claims (one hopes) would meet the $75,000 amount-in-controversy requirement for diversity jurisdiction. 28 U.S.C. § 1332. One way to ensure federal jurisdiction over a claim, however, is for the federal government to be a party.

The U.S. Department of Education (DOE) is the nation’s largest student loan creditor. It makes a substantial percentage of student loans directly to students, and it guarantees many private student loans. Federal courts automatically have jurisdiction over most lawsuits in which the United States is a plaintiff. 28 U.S.C. § 1345. The question remains of how a debtor, who would be the defendant in such a case, could get arrested.

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Multiple Authors (Sources shown in list below.) [GFDL (http://www.gnu.org/copyleft/fdl.html) or CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0/)], via Wikimedia CommonsMarijuana remains a controlled substance under federal law and the laws of some U.S. states. In Mexico, which is touted as a partner in the U.S.’s “War on Drugs,” marijuana also remains illegal, but with an unusual legal twist. In November 2015, Mexico’s Supreme Court ruled in favor of a group of individuals who claimed an individual right to grow and possess marijuana for personal use. The court couched its ruling in the language of human rights, based on the right of “free development of one’s personality” found in the Mexican Constitution. This is best described as a “right of self-determination,” or for each person to make decisions for themselves. No similar right appears in the U.S. Constitution. The ruling will not have a far-reaching effect, however, since the court stressed that it only applies to the four individuals who were parties to the case. In other words, the Supreme Court of Mexico only legalized marijuana for four people. Still, the ruling is important to the changing legal views of the drug.

At least 23 U.S. states, the District of Columbia, and Guam have enacted laws permitting the use of marijuana for medical purposes with a doctor’s prescription. An additional 17 states allow limited medical marijuana use. This includes Texas, which allows the use of a particular product derived from the marijuana plant for the treatment of a single medical condition, intractable epilepsy. Tex. Health & Safety Code § 487.001 et seq. Four of the states that allow medical use—Alaska, Colorado, Oregon, and Washington—also allow recreational use. Federal law still deems marijuana a Schedule I controlled substance, the highest degree of prohibition. 21 U.S.C. § 812(c)(I)(c)(10).

A law passed in Mexico in 2009 decriminalized the possession of up to five grams of marijuana for personal use, as well as small amounts of other drugs. The sale and transport of marijuana largely remains prohibited by law. Since 2006, a conflict between drug trafficking cartels and Mexican police and military forces, part of the broader “War on Drugs,” has had a tremendous human cost. Estimates of the death toll at the end of 2012 exceeded 100,000, with an additional 25,000 people reported missing. Legalizing marijuana in the U.S. has reportedly had an economic impact on the cartels, but it has not necessarily weakened them. The ongoing conflict provides context for the Mexican Supreme Court’s ruling.

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flowerThe U.S. criminal justice system is based on the principle that the state may not impose a criminal punishment on a person until they have been convicted of an offense. The Bill of Rights provides several important safeguards, including a requirement of due process, a right to counsel and trial by jury, and a prohibition on cruel and unusual punishments. Despite all of this, the system has come to include numerous features that arguably extend beyond reasonable punishment based on an adjudication of guilt. A Texas judge ruled in late 2015 that the state’s system of civil commitment, which provides for the continued confinement of people convicted of certain sexual offenses after the completion of their prison sentences, is unconstitutional. An appellate court order quickly suspended the ruling, and the case awaits further action.

The term “civil commitment” can refer to several types of proceedings, some of which have long histories in this country. Courts can order someone with severe mental illness into treatment if they conclude that a person is a danger to themselves or the public. Concerns over due process rights and other issues have led to numerous reforms, and involuntary commitments today are usually limited to a short period of time in order to stabilize and evaluate a person.

The civil commitment system at issue in Texas was created in 1999 to address “a small but extremely dangerous group of sexually violent predators” with “a behavioral abnormality that is not amenable to traditional mental illness treatment modalities,” who pose an ongoing threat to the public. Tex. Health & Safety Code § 841.001. The statute directs the Texas Department of Criminal Justice (TDCJ) to identify prisoners convicted of certain “sexually violent offenses” who could be “repeat sexually violent offender[s].” Id. at § 841.021(a). The state may file a civil petition seeking a determination that the person is a sexually violent predator.

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