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I do applaud the efforts of challenging this procedure and will be very interested in watching its progress. I believe this procedure was put in place to deal with the overwhelming number of disorderly conduct arrests, and similar collateral offenses, in the District of Columbia. In 2000, for example, there were 10,600 arrests in DC for disorderly conduct. I don't have the figures, but I would bet the number for 2010 is near that amount, if not higher (see If the courts had to process each and every disorderly conduct arrest (as well as other collateral offenses eligible for PAF) the judicial system would be ground to a halt. One way to solve this may be to educate and train the offiers better so that they understand what is and what is not disorderly conduct.
As a criminal defense attorney practicing in the District of Columbia, I have dealt with the "post and forfeit" (PAF) procedure on a number of occasions. While I think there are problems with this procedure, I do not know if it rises to a constitutional level. First, the procedure is in place for the purpose of judicial economy, and therefore it serves a valid purpose recognized by courts across this country. Second, when an individual is arrested and given the oppotunity to PAF (only certain crimes are eligible for this)the paperwork they receive contains important information and options for that person. It informs them that selecting to PAF results in no conviction and the case against them is closed. A record of arrest will remain. Should an individual who elected to PAF decide that they do not want to have the record of arrest, they may file a Motion to Set Aside Forfeiture as a matter of right if it is done within 90 days after the PAF. That Motion will reopen the case via a court Order and an arriangment date will be set in DC Superior Court. The Government then must file the necessary charging documents by that date in order to move forward with the charges against the individual. Should they fail to do so, the case is dismissed and the individual may file, immediately, a Motion to Seal and the record of arrest will be sealed. In my opinion, the purpose of improving judicial economy, coupled with the procedural safeguards which are clearly indicated on the paperwork, will prevent any constitutional argument from succeeding. I do think, however, that the amount forfeited by persons under this procedure should be returned to them, with interest, in the event the government fails to file the necessary charging documents (which is often the case in disorderly conduct arrests). A great majority of arrests for disorderly conduct are never prosecuted because the officers do not understand the requisite elements of the offense. It is widely used as a justification for arrest but rarely prosecuted.
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Dec 17, 2010