September 22, 2007
Legal Department
Evil Lawmaking: Administrative Punishment
Continuing my somewhat interrupted series of articles on bad, sloppy, or downright evil lawmaking, I'd like to talk about administrative punishment.
If you commit a crime and get caught, one way or another you eventually end up in court, where if you're convicted, a judge decides your punishment. So then you serve your time, pay your debt to society, and get on with your life, right?
Not so fast. In addition to the punishment the judge gives you, you face other punishments as well. For example, Virginia drivers are subject to huge fines for traffic violations, but some of the fines are implemented as part of the tax law. That is, if you are caught going more than 15 miles per hour over the limit, in addition to all the other fines and penalties, you become subject to a tax of $1050.
I'm not entirely sure why state legislatures do things like this, but I have some theories. For one thing, I think they figure that if they don't hit you with the fine all at once, you're more likely to go quietly. If you go to court on a speeding ticket and the judge fines you $1000, you'll probably scream bloody murder. But if the judge gives you a $250 fine, and then five months later you get a tax bill for three annual payments of $250, maybe you won't make so much of a fuss.
I think the more important reason for these kinds of administrative punishments is to cut the judge out of the process. A judge might be tempted to go easy on someone who doesn't appear to be a repeat offender. He could cut $250 fine down to just $100 or even eliminate it altogether, but he can't make the special $750 tax go away, because he has no control over the state's tax policy.
Sometime the administrative punishments leave out the judge entirely. Here's one example, drawn from some MADD propaganda:
Administrative license revocation (ALR) is the removal of a DUI/DWI offender's driver's license at the time of an arrest upon the failure or refusal of a chemical test. This distinction is important – administrative revocations are immediate in nature and, because of this, ALR is one of the most effective ways to deter people from driving under the influence of alcohol.
"Immediate in nature" appears to be MADD's euphemism for punishment without a trial. This seems like a blatantly unconstitutional violation of due process and—since there's an additional punishment when the judge finds someone guilty—double jeopardy. You'd think judges would be angry at the legislature's blatant attempt to usurp the powers of the courts, but so far the courts have been bending over backwards to allow administrative revocations. They're the law in 41 out of 50 states.
If I understand this correctly, states get around the due process requirements on these kinds of punishments because calling them "administrative" implies that they are not criminal punishments, but rather are like late filing fee on your taxes. In this way, the government waves its hands and your punishment magically turns into a simple little fee. Or into a revocation of the paperwork that allows you to drive.
In addition, I'm pretty sure that if you do manage to get around all the administrative barriers and drag the government into court—despite your legal costs exceeding the amount of the fee—the government doesn't have to meet the reasonable doubt standard to win their case. That's only for criminal trials.
It's not unusual these days for the administrative fees and other non-criminal non-penalties to far exceed the amount of any criminal fines.
I must admit that these legal issues exceed my layman's knowledge of how the law works, so I may have just made a lot of mistakes. (If so, I hope some of my more knowledgeable readers will correct me.) But I'm still pretty sure administrative fees for crimes are an example of evil lawmaking.
Question: As I wrote this, one other thing occurred to me. Perhaps some of my legal readers can answer this. (I'm looking at you, Gideon!) Can indigent defendants get help from the public defender (or a court-appointed lawyer) on administrative or civil fees? Or, since these are non-criminal matters, are people facing $3000 administrative fees denied the right to counsel?
Update: In the comments, Gideon confirms that—at least where he's from—public defenders can't help with administrative proceedings.
1 Comments
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Interesting post. As to your question, no, public defenders cannot represent you in administrative proceedings and in administrative matters. So if you have that $3000 fine, you hire your own attorney or go pro-se.
It really is awful, these administrative fines that circumvent the criminal process.