Integrating Tort Law and Criminal Law

Private Nonjudicial Remedies.

Internal business crime is most effectively controlled by sound personnel and management controls. If a theft occurs, managers reexamine private security, internal controls and audit functions for improvement. The emphasis is on prevention. For guilty employees, the range of company sanctions includes suspension without pay, reassignment, elimination of some duties, restitution agreements, dismissal or criminal prosecution. Little is known about these private justice processes.71

Interviews by the Hallcrest organization in 1989 show that both large and small businesses are instituting more civil actions for restitution (and often for damages, too) against alleged offenders - employees, competitors, contractors and others.72 Unfortunately, there is no statistical information about the scope of this development.

Seeking Civil Damages.

"Only a preponderance of evidence is required to win in civil suits."

A plaintiff can bring a tort suit in civil court against a defendant, even if the accused is also a defendant in criminal court for the same offense, because the same act is often both a crime and a tort. There are distinct advantages to more civil suits directed against criminals.

• Since victims collect compensation from the liable defendants, the suits encourages victims to sue in other cases.
• The payoff to crime is lowered and crime discouraged because criminals experience a higher risk of suffering a financial loss.
• It is easier for victims to win because only a preponderance of evidence is required to prevail, whereas a criminal conviction requires evidence of guilt beyond a reasonable doubt.
• The defendant in a civil suit can be deposed and compelled to answer questions, unlike in a criminal trial.
• The plaintiff can benefit financially if the defendant profits from his crime (say, by writing a book about it) because the profits can be used to pay restitution, unlike in a criminal conviction.

The son of one of the victims of Charles Manson and his followers won a $500,000 federal lawsuit against Manson in 1971 and although he had to wait 22 years, he began collecting royalties due Manson from a song on a 1993 record album.73

A Dallas judge awarded $6 million in damages in 1993 to the family of an Irving, Texas, martial arts instructor shot to death by an acquaintance during an argument over a debt.74 A jury already had found the same defendant guilty of voluntary manslaughter and sentenced him to 20 years in prison. In this case, the defendant remained free on $250,000 bail and "drove a beautiful Corvette to and from the courthouse."75

Obstacles to Civil Suits.

• Victims generally wait until a criminal prosecution is complete before they decide to pursue a civil remedy.
• The law treats most criminal offenders as judgment-proof or insolvent (“indigent”). A majority, for example, have court-appointed attorneys.76
• Private litigation is expensive.

The Fifth Amendment to the U.S. Constitution states that a person cannot be compelled - to be a witness against himself, - which hampers a plaintiff in obtaining civil testimony from the defendant. The problem can be partially circumvented by postponing a civil suit until after the criminal trial, but this is not very satisfactory when the criminal trial is long delayed. On the other hand, by waiting until after the criminal trial, the plaintiff can usually use work already done by the prosecutor for the criminal case.

In urban areas especially, courts specialize by law in either civil or criminal cases. This strict barrier can hamper innovative approaches such as having the same judge hear a civil proceeding involving the same defendant immediately after the criminal trial.

A more important obstacle to civil actions against criminals seems to be the poor prospect of compensation for plaintiffs. The plaintiff must identify the criminal responsible, bring forward enough evidence to win a decision, convince the court to award substantial compensation and, finally, find assets belonging to the criminal that can be seized.

"The law could be changed to allow the joining of civil litigation with criminal prosecution."

Overcoming the Obstacles.

First, the law could be changed to give criminal courts concurrent civil jurisdiction where it is requested and to allow the joining of civil litigation with criminal prosecution. Thus, if a defendant were convicted, immediately after the sentencing the same judge who presided over the criminal trial could hear the civil suit against the defendant. Perhaps the victim should be allowed to ask for compensation in the criminal trial.

In France, a crime victim may file a civil claim for reparations against the accused at the same time as the criminal prosecution is brought by the public prosecutor, and before the same court.77 Contrary to U.S. practice, the French crime victim also has the right to file his or her private suit in a criminal court before the public prosecutor has begun a criminal proceeding. In effect, this is a private prosecution and obligates the public prosecutor to begin the criminal proceeding. According to one observer, " Private prosecution (action civil) is very popular in France, since it enables the victim to collect damages quickly and inexpensively."78

"In France, crime victims can file civil claims at the same time as the criminal prosecution and before the same court."

What about false accusations? The French impose a proper element of risk in bringing civil action before criminal judges. If the action civil is dismissed because the judge finds the complaint groundless, the plaintiff must pay court costs and damages to the defendant. If the court believes the plaintiff made a false accusation, the judge will conduct a criminal examination against the plaintiff and, if bad faith is proved, the plaintiff will be convicted.79

German public prosecutors are in a monopoly position like their counterparts in the United States with two exceptions: (1) crime victims can prosecute for a narrow class of misdemeanor offenses like trespass on domestic premises, and (2) a crime victim can formally demand that the prosecutor prosecute in a particular case. If the prosecutor refuses, the victim is entitled to an explanation. A dissatisfied victim may appeal to the state appellate court, and if the court finds sufficient evidence for a prosecution, it may order the prosecutor to bring charges. At trial, the victim may then join the prosecution as a "supplementary prosecutor" to ensure that the public prosecutor does not sabotage the case he has been ordered to prosecute against his will.

Second, legislatures and courts might allow more liberal use of restitution through performance of in-kind services like yard mowing and house painting as well as repayment through wages withheld, with supervision financed and operated by a private bonding agent at no cost to taxpayers. These remedies may require modification of personal bankruptcy laws and state prohibitions on garnishing of wages. Suppose, for example, that the harm to a victim of crime was $8,000 and the cost of apprehension and conviction was $2,000. Then the criminal would have to repay $10,000 in present value terms via deductions from wages under supervision of a private bondsman. If the criminal became a fugitive before completing restitution, the criminal’s ultimate chances of escape would be slim because of the efficiency of the private bonding system. The use of private bonding agencies to supervise probationers and parolees is discussed more fully below.

"In Germany, a victim may join the prosecutor as a ‘supplementary prosecutor.’"

If there are legal prohibitions against this approach, they should be repealed. Bounty hunters are permitted to cross state lines and operate under fewer restrictions than police in pursuing bail jumpers in criminal cases. They would need the same flexibility of pursuit under civil law.80 Third, the law could allow the victim to be a party to the negotiation of settlements in criminal trials. If the criminal and civil trials were joined, settlements in both could be negotiated at the same time.

If the legal system tilted toward plaintiff restitution instead of criminal punishment, it would move us away from unproductive imprisonment. [See the sidebar on the failure of restitution in the criminal justice system.] The accused, having less at stake, would be more likely to agree to a settlement instead of demanding a trial. Still, the ultimate sanction would have to be criminal prosecution and incarceration at varying levels of prison security for the really serious offenders. But the financial obligation for restitution through productive labor within prisons should remain in this hybrid system. The most recalcitrant criminals could be employed by private employers outside and inside prison walls in a kind of debtors’ workhouse.81 The employment of prisoners is discussed in greater detail below.

"Only 16 percent of convicted felons are ordered to pay victims restitution; and most of those never pay."

Paying for Civil Remedies.