Tuesday, July 18, 2017

This isn't just an injustice, it's a moral obscenity


US Attorney-General Jeff Sessions apparently doesn't understand the meaning of "innocent until proven guilty".

U.S. Attorney General Jeff Sessions said the Justice Department will issue new directives to increase the federal govenment's use of civil asset forfeiture, a controversial practice that allows law enforcement to seize property from suspected criminals without charging them with a crime.

. . .

Asset forfeiture became a prized hammer in law enforcement's tool chest in the 1980s, when the government was struggling to combat organized drug cartels. Law enforcement groups say the laws allow them to disrupt drug trafficking operations by targeting their proceeds—cars, cash, and guns.

However, the practice has exploded since then, and civil liberties groups and political advocacy organizations, both liberal and conservative, say the perverse profit incentives and lack of due process for property owners lead to far more average citizens having their property seized than cartel bosses.

The Justice Department plays a huge role in asset forfeiture through its Equitable Sharing Program, which allows state and local police to have their forfeiture cases "adopted" by the federal government. The feds take over the case, and the seized money is put into the equitable sharing pool. In return, the department gets up to 80 percent of those funds back. The equitable sharing program distributes hundreds of millions of dollars a year to police departments around the country.

. . .

Sen. Mike Lee (R-UT), a consistent Republican advocate for reforming asset forfeiture laws, said in a statement to Reason Monday: "As Justice Thomas has previously said, there are serious constitutional concerns regarding modern civil asset forfeiture practices. The Department has an obligation to consider due process constraints in crafting its civil asset forfeiture policies."

Lee was referring to conservative Supreme Court Justice Clarence Thomas' notable dissent in an asset forfeiture case this June. Thomas wrote that forfeiture operations "frequently target the poor and other groups least able to defend their interests in forfeiture proceedings."

. . .

A 2014 Washington Post investigative series found that warrantless police seizures of cash through the equitable sharing program have boomed since 9/11, hauling in $2.5 billion. Also in 2014, for the first time ever, the U.S. government seized more property from Americans than burglars did.

There's more at the link.

The whole problem with civil asset forfeiture is that it requires the citizen to prove a negative - i.e. to prove that the asset(s) in question are not the result of criminal activity.  Trouble is, in courts of law, the normal standard is that the prosecution has to prove its claims.  It's not up to the defendant to disprove them - rather, the defendant has only to show that the prosecution's claims are impossible, or untrue, or unprovable due to alternative explanations of fact.  The prosecution can't simply claim, "You're a thief/murderer/whatever", and expect the defendant to prove them wrong.  However, that's precisely the logic behind civil asset forfeiture.  The State makes the claim, and then - without having to prove it - proceeds to confiscate the asset(s) that it alleges were financed through the claimed illegal activity.  Their owner must then prove that the State is wrong before he or she can reclaim the asset(s) - at his or her expense.  Many can't afford that expense.

This is immoral on a fundamental level.  It removes the burden of proof from the authorities, and places it on the individual.  It's not justice - it's the antithesis of justice.  If the asset(s) are confiscated after the defendant has been found guilty of a crime by a jury of his or her peers, that's one thing.  To just take them, without any legal justification whatsoever, is as much a crime as the misdeeds of which their owner may be suspected or accused.

I hope and pray enough of us will make enough of a fuss to get rid of civil asset forfeiture once and for all.




Peter

14 comments:

Chuck Pergiel said...

This country is going to hell in a handbasket and I don't know why. Some say it's the liberals, but what is it about our current situation that makes the liberal viewpoint attractive? Could say the same thing about conservatives. I think it's because we don't have enough real problems to keep the busybodies occupied, so they start making up problems so they will have something to make a fuss over.

Javahead said...

Chuck, I wish I could disagree with you, but you do have a point.

I think the Liberals do it more, but a lot of "conservatives" also want to limit behavior they disapprove of - different things, usually, but the same "we've got to do something!" mindset.

If your actions directly affect others (and I'd include things like aggressive panhandlers ambushing pedestrians on streetcorners) you have a point. But if it only affects you (and I'm not obliged to rescue you) I don't see why the law should attempt to stop you.

I neither want or need some self-appointed moral arbiter attempting to run my life for me - for my own good, of course. I'm willing to give others the same courtesy.

Anonymous said...

What is it about being appointed to law enforcement positions of power which convert people who supported following the Constitution to becoming Evil Overlord Supreme Commander ?

I'm beginning to think this is becoming personal . . .

Pwl47 said...

It is just theft. Pure and simple. It is theft written into law so they can feel righteous about doing it.

Thomas W said...

Jeff Sessions is showing himself to have one solution to crime -- a bigger hammer. Maximum sentences for all drug crimes, increased forfeiture, etc. I fear that if anything we're likely to see an increase in drug related problems and some real conflicts between the states and Federal Government over recreational and medical marijuana.

On the other side, last week HUD announced grants to help with "drug courts", which take a non-"lock them up" approach to drug users. It will be interesting to see whether this results in any sort of open inter-agency conflict.

Eric Wilner said...

This was an obvious problem when Sessions was nominated; unfortunately, the yappy poodles of the Press were too busy rehashing decades-old, discredited accusations of racism to cover substantive issues.
"Civil" asset forfeiture in its modern form is an unambiguous violation of the plain language of the Fifth Amendment, papered over with legal sophistry that maintains that "we're not depriving the person of his property, we're just punishing the property, which has no civil rights!"
As I understand it, this started out as a mechanism for condemning contraband for which no owner could (duh!) be identified... and somehow morphed into a lucrative scheme for glomming onto perfectly legal goods and currency when the owner is standing right there proclaiming himself to be the rightful owner.
So, yeah. Literally highway robbery under color of authority.
And another great way to undermine trust in the police. Are they here to protect us and maintain order, or to kill us and take our stuff? Citizens of a republic shouldn't have to ask that question.

Andrew said...

Well, from a perspective from inside the drug enforcement world, I heartily approve of asset forfeiture. It should be done when the burden of proof shows that they are assets derived from criminal behavior which is related to criminal counts due to successful prosecution, not just 'because.'

As to "drug courts," one of my jobs was tracking cases from start to finish, finish being the end of all activity related to the case including the total sentence of the charged individual. Did this for 15 years. Watched "Drug Court" and "Deferred Prosecution" used over and over again, on the same individuals, as they expanded their criminal behavior. In other words, drug courts don't work.

Anonymous said...

....I neither want or need some self-appointed moral arbiter attempting to run my life for me - for my own good, of course. I'm willing to give others the same courtesy.

I would suggest that, should confiscatory life-running continue to be pursued by The Powers That Be, "returning the favor" may become the order of the day. Should it come to that, I suspect they may not enjoy it.

Anonymous said...

Asset forfeiture in particular, and the drug war generally, has to be the most corrupting influence on law enforcement since...well...probably ever. When you get to see it close up it's sickening and thoroughly destroys any faith you had in the police, the legal system and government itself. That's just as an observer with no skin at risk. If one is a victim of it I can only imagine the fury involved. The corruption is utterly horrifying and elicited in me a level of disillusionment and disgust I thought I'd never feel for people who I'd admired and looked up to my entire life. It's kinda like learning your pastor or scoutmaster was a serial child molester.

A Texan said...

"Well, from a perspective from inside the drug enforcement world, I heartily approve of asset forfeiture. It should be done when the burden of proof shows that they are assets derived from criminal behavior which is related to criminal counts due to successful prosecution, not just 'because.'"

But that's the point. There are no longer any controls on law enforcement. Yes, there are crappy people out there, but the government steals an obscene amount of money this way.

Outside of the failed drug war (which I believe is controlled by the CIA), who can remember other law enforcement atrocities like the ATF Gun Walker and even worse burning up women and children at Waco. Too bad those in charge of those two won't be executed.

Constitutional Insurgent said...

Damn well put; please keep posting about the asset forfeiture regime....it needs to be heard far and wide.

Anonymous said...

I'll add that anyone counting on "oathkeepers" to do anything but follow orders if SHTF, should ask them if their department practices Civil Asset Forfeiture. No one can call themselves an "oathkeeper" and remain working at an agency that violates the 4th so blatantly. How can anyone outside place any trust that they'll uphold the 2nd, if they won't uphold the 4th?


Yet you never hear any of them talking about it.

n

Stu Garfath. Sydney, Australia. said...

Quis Custodiet Ipsos Custodes?. It would seem no one is.

Tal Hartsfeld said...

Civil Asset Forfeiture
...yet another "Invent-A-Law".
...too many of those, you know.