I noticed recently that the suburb of Cicero is attempting to “use lawsuits to combat street gangs that engage in criminal activities.” I’m struck by three thoughts: (1) how?? (2) what a bad idea, and (3) prosecutors must be getting tired of that “beyond a reasonable doubt” standard.
The original Chicago Tribune article is here. Unfortunately, it doesn’t give very many details as to how this new program works. Apparently Cook County has put into place some sort of program where a city can sue alleged gang members for monetary damages and, presumably, obtain injunctions. In fact the article actually says “one thing a judge could do, for example, is order an individual not to be in a gang. ‘If they violate the court order, they may be subject to contempt of court,’ Pechous told the board.” This seems laughable to me and, I suspect, most other people. If threat of imprisonment under the criminal system doesn’t deter people from joining gangs, how could the civil system even possibly be an effective deterrent? As a quick sidenote, programs like this one have been in existence for some time…and apparently they’re nothing new to Cicero. For a solid background and discussion of this, see Stephanie Smith, Comment, Civil Banishment of Gang Members: Circumventing Criminal Due Process Requirements?, 67 U. Chi. L. Rev. 1461 (2000).
Yet there’s a cynical side of me that worries nonetheless. There are several problem. First, the burden of proof in civil matters is significantly lower. One needs only find that a plaintiff has made its case seem more probable than not. Mathematically speaking that’s p > .5 Although there has been significant legal scholarship about the paradoxes of expressing burdens of proof in terms of statistical probabilities (there are many paradoxes and logic traps that the law conveniently sweeps under the rug). This lower burden means it takes less evidence to find a person ‘liable’ for what they’re accused of doing. In other words, claims that couldn’t be proved by a prosecutor who is held to the “beyond a reasonable doubt” standard could be won in civil court potentially. In fact, the O.J. Simpson case makes this point nicely. He was acquitted in the criminal trial but found liable in the civil trial.
Second, the 6th amend. right to counsel only applies to criminal matters. As the Supreme Court’s very recent decision in Turner v. Rogers, 564 U.S. ____, 131 S. Ct. 2507, 180 L. Ed. 2d 452 (2011), reinforces a defendant facing civil liability does not have a constitutional right to appointed counsel. Thus, if a suit is filed against a person allegedly involved in gang activity, not only will it be easier to adjudge him/her liable but (s)he won’t have a guaranteed right to an attorney who could defend him/her. This compounds the likelihood that the city will win most of its civil cases.
Third, when it does win such cases, the monetary options may likely have no meaningful effect but the contempt of court options might. As Turner v. Rogers, supra, also counsels, civil contempt of court is a unique beast. Because there is an idea that the defendant “holds the keys to his release,” imprisonment can be indefinite. The “keys” here are the actions necessary to comply with the court order. Many times that’s money. Most gang members don’t have much money– that’s why they joined a gang in the first place. If a judgment is entered against a poor person how will they pay? If they don’t, do they fact the possibility of being held indefinitely until they can comply? If they’re in jail, is there even the slightest chance they could earn money which is the “key to their release”?
I don’t know much about the specifics of Cook County’s program yet but my initial reaction is that it’s both stupid and dangerously unfair. One the surface, it will likely provide no deterrent or remedial effect with respect to gang activity. What it likely will do is make it easier to accuse people of gang activity then hold them in contempt of court for who even knows how long. After all, they probably won’t have the money to afford an attorney and the state won’t have to give them one. Ergo, not only will they be more likely to face an unfair fight but when they lose they will have an enormous time managing the outcome. I’ll try to find out more details about the program but my initial reaction is one of great concern.