The Parallel Structures of Criminal and Civil Law, and the Hole in the Bill of Rights

American criminal law, first on the federal level, and later, when the Supreme Court started to apply the Bill of Rights to the states in the 20th century [and at local level as well], has some restrictions on the government in the Fifth and other amendments as to how it can deal with people accused of crimes.  Increasingly, however, governments have found ways to bypass these restrictions by moving to the area of civil and administrative law, where most of these restrictions do not apply.

The Bill of Rights, or for that matter the Constitution, never contains the words ‘innocent until proven guilty’ or ‘presumption of innocence’, but nevertheless presumption of innocence is an important part of our freedom from injustice.  It is limited, it turns out, in two ways:

  1. It applies only to criminal law.  The government has to prove you committed a crime.  It doesn’t have to prove you committed an act which makes you liable for a ‘civil’ fine, just as it doesn’t have to prove you owe the amount of taxes it claims.  If you are charged with criminal tax fraud, you have to prove that you don’t owe them what they claim, but they have to prove that your intent was criminal.
  2. If you claim innocence, not because you did not do what they say you did, but that the regulation or order, or law, prohibiting it or requiring it was invalid or not properly authorized by Constitution or statute, the law or regulation or order, not you, becomes ‘innocent until proven guilty’.  Presumption of innocence is confined to matters of fact, not law.

The Fifth Amendment does end with “nor shall private property be taken for public use, without just compensation.”  This is definitely in the civil law realm.  However, what level of restriction of use of private property does or does not constitute a ‘taking’ is a matter of controversy, and the Berman and Kelo cases pretty much established that ‘public use’ is whatever the crony capitalists at City Hall say it is.

The Sixth Amendment is the same.  “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . .” emphasis mine; in a civil prosecution, none of the above!

Now let us go back to the Fourth Amendment.  “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue . . . .” to what extent does this apply to a licensed business?  Few businesses dare to turn away a fire inspector merely because she does not have a warrant.  But then, it could be argued that a business operates by permission, not by right, I suppose.

Take a look at the Seventh:  “In suits at common law, where the value in controversy shall exceed twenty dollars, [probably about $500 in our money!!] the right of trial by jury shall be preserved . . . .” Well, does that apply to suits at civil or statutory law as well, much less administrative law?  [Administrative law is the right of agencies to make law as delegated by statutory law, and to act as the court of original jurisdiction regarding these laws.]  I gather that civil suits between us and the government are not ‘common law’.

In dealing with business and other forms of regulation, the ‘civil penalty’ has replaced the criminal law, which means that the accused does not possess the rights under Miranda or the presumption of innocence that characterize the criminal law.  Under civil law they can define proof of guilt, or what is ‘due process of law’ for the collection of fines, almost any way they like, which at criminal law they cannot do.  One notorious area where this shows up is that of so called asset forfeiture, where if one is accused of harboring drugs on one’s property, and is then found innocent under the criminal law, their property may have been forfeited under civil law, not criminal law, and it is a more complicated matter to get the property back.

Another case is taxes.  Because it is not a ‘crime’ to owe taxes to the government necessarily, the government does not have to prove that you owe it taxes – you have to prove that you don’t.  If they want to charge you with a crime in that regard, however, they have to prove it.

Another example is, if I hit a parked car, or worse, a human being with my car, I have committed a tort, not a crime, and cannot invoke the 5th amendment against making certain disclosures.  If I refuse those disclosures, I have committed a crime, often called ‘hit and run’, and the 5th Amendment does apply, but I will probably be found guilty in the face of it.  Perhaps a reason why Mexican immigrants have trouble with this is that in that country auto accidents as such are treated under the criminal law anyhow – which is why we buy special auto insurance policies when we drive there – whereas in the USA auto accidents are civil torts but not fulfilling the appropriate responsibilities afterward is a criminal matter.

Even at criminal law the ‘presumption of innocence’ is more complex a matter than it might appear.  If the question is, ‘did you behave in a certain way,’ you have the presumption of innocence.  If the question is, ‘yes I behaved in a certain way but is the law or regulation that forbids it a valid one,’ not you, but the laws or regulations, are ‘innocent till proven guilty’.  That is why business, in general, is very reluctant to test laws or regulations in court.

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