“Asset forfeiture” is the an Orwellian term for “the government steals your shit and there’s pretty much fuck all you can do about it.” It was supposed to be a way of going after what the government deemed ill-gotten funds and property – gotten with the sale of illegal drugs, for example. It became a sick (and legal) way to steal from law-abiding citizens, who were not afforded “innocent till proven guilty” but instead needed to prove their money or property was NOT gotten through illegal means. Many couldn’t afford lawyers and were simply screwed by the government.
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Samizdata quote of the dayMarch 21st, 2015 |
 31 comments to Samizdata quote of the day |
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From the Administrative State:
“We’re working on it.”
All of these asset theft, for theft is what both the taking and the “freezing” amount to, “laws” urinate on the 4th Amendment.
However, the Supreme Court (and it was the “conservative” judges who were to blame) long ago decided that 4th Amendment did not matter.
The “war on the Mafia” (RICO and all that) mattered much more than the 4th Amendment.
Of course, what starts to be done to special-bad-people (TM) ends up the way the government treats everyone.
In some States there is virtually no protection for private property at all (for example in the city of Philadelphia if the police or officials like your house or something it is easy for them find an excuse to steal it), and even in States were there is some protection for private property (for example North Dakota) the FEDERAL authorities can steal your stuff – and they can share what they steal with State and local officials.
Why bother having a Constitution at all – if it is going to be trusted to a bunch of judges.
It is principles that are important – the right principles.
And whilst people (judges – or anyone else) are thinking in terms of “how do I get the result I want in this case?” not “what do the correct principles lead me to?”, things will just get worse.
For the weak of brain (or weak of moral sense).
The correct principle is that if something can not be proved, beyond all reasonable doubt, to be the product of crime, you get to keep it.
Amy Alkon is right to be outraged by this – as was the late Enoch Powell.
Oh yes it is coming in Britain – although the late Mr Powell was told “it will only apply to drug dealers”.
If anyone really thinks that different legal principles (such as having to prove yourself innocent) should apply to different classes of people, or that the state will only use special powers against “really bad people”, you are reading the wrong blog.
I’m not suggested this is not at all dodgy and nefarious, far be it of me to defend government practise, just that it isn’t a clear cut violation of “innocent until proven guilty” but something else entirely.
Surely the same issue is similar to what happens in a lot of murder cases when the only witness is the (dead) victim? The only way to “prove” is by default, i.e. that (a) a crime has been committed (it was murder and not something like an accident) and (b) the only person who could have committed the crime was the accused, in which case the burden of proof now lies with the accused to establish this is not the case, which is slightly different from proving your innocence.
If your property can be taken, not because you have been convicted of a crime, not because you have even been charged with a crime, but because you are suspected of a crime… and you have to sue a state that has essentially unlimited resources to get your property back (i.e. prove it was not the proceeds of a crime, a crime that you have not been convicted of, and often not even been even charged with)… then actually you are “guilty until proven innocent” and the 4th Amendment means less than nothing.
But Perry, before you are proving that you did NOT commit a crime, doesn’t the state have to first establish that the only way you could have possibly got it was by a crime and no other method, or are you saying they just go on their say so, surely its got to be a bit more than “Got a receipt for that? No? We’ll take it then”.
Nope. There are countless examples where people have their assets taken simply because they were ‘suspicious’. This is a VERY typical example but it is by no means the most egregious, not by a long shot.
Just do a search on asset forfeiture abuse. You have no right. None.
I know for a fact that a lot of the stuff confiscated “gets mysteriously lost” in the evidence rooms at police stations and warehouses.
The worst states for this shit are the left wing ones like California, NY and so forth. If you are white you are a complete moron or an eloi if you live these states.
I am sel-employed. Between you, me and the gate-post remember cash is tax-free… Fly fast, fly low and fuck’em. They’ll only spend it cock-walloping themselves. If I had tuppence for every time I’d heard as a good thing the gubbermunt “investing” x-million in some sh’ite scheme East of Qom to “create jobs” or some such bollocks I’d be a rich man.
Perry, I am not defending government action and the legitimacy of what is being done, but comparison with “guilty until proven innocent” is not what is happening here. A crime can be proven by eliminating all the other possibilities, effectively leaving the accused to prove otherwise, which is a different perspective and possibly happens in other legal situations. I agree the government abuses asset forfeiture law, I agree the evidence the government comes to its conclusions is somewhat dubious, but I am arguing it is not an abuse of the legal right of “innocent until proven guilty” as presented as in the OP, it is some other type of abuse.
Between you, me and the gate-post remember cash is tax-freeâŠ
You’re gonna need a new gate-post. Tax free is not asset seizure free, as you will discover if you bumble along an Interstate, with $2,000 in cash in the car. Obviously the cops favour rental cars and cars with out of state plates as it’s harder for you to come back and sue to get your money back.
In any event, while you can get by with cash for your groceries, cash doesn’t work so well when you want to buy a house or a car or an air ticket. And when you bring ÂŁ10,000 cash to deposit with the bank for your non cash spending, good luck. It’s not just that you’ll have to fill in a lot of forms and answer a lot of impertinent questions about where you got the money from – it’s that you’ll have won yourself a prized spot on the bank’s dodgy cash transaction reports, which will earn you a little star on the government’s computer.
At some point they will discover how to use all those expensive computers they’ve bought, and they’ll come a visitin’ ya.
Runcie Balspune, you are only correct in the sense that as this is all done without the inconvenience of a trial, yes “guilt” is not the issue because they cannot even be bothered to charge you, they just take your stuff because… well because they can and they have more guns than you do (and so much for the 2nd Amendment being a check on tyranny, eh? Well yeah if you feel like shooting it out with their SWAT guys I suppose. Good luck with that).
But it does indeed become the issue if you actually try to get your stuff back, short of organising an armed regional revolt. At that point you do indeed need to prove innocence… but they do not actually have to prove guilt in many of these cases.
I’m afraid I don’t understand Runcie’s point at all. The government seizes your property on the basis of its suspicions. These suspicions may, in some cases, be well founded (but insufficiently well founded to prove them beyond a reasonable doubt in court.) In other cases they are not founded on anything at all, other than a desire to take your money. But however firm the suspicion is, the fact is the government takes your property on the basis of its suspicions alone. If you want your property back you have to sue for it. It’s true they don’t stick an official label on you saying “GUILTY, now try to prove different !” But that’s not the point of the presumption of innocence. Who cares about being pronounced guilty – if you can’t be punished until you are proved to be guilty. It’s not about the label, its about the punishment.The point of the presumption of innocence is the order of events, proof first, punishment second. In these asset seizure cases we have the order reversed, punishment first, disproof second (if ever.)
If you haven’t been reading Amy Alkon’s blog I’d recommend it. On the left, under Commentary, is a link to “Advice Goddess”, that’s her blog. She’s a professional writer and usually has 2 or 3 good posts a day. (Her boyfriend was Elmore Leonard’s researcher until he passed away. Pretty cool.)
Amy is actually a friend of mine, I met her in California back in the early days of blogging. She is delightful in a rather intense way đ
Perry:
They actually do have trials, with names like United States v. $8,800 in United States Currency or such. Yes, inanimate objects are the defendants. Way to do away with mens rea.
To successfully defeat some SWAT guys in an armed standoff, bring some armed friends along. It worked for Clive Bundy.
The thing for decent people to remember about this issue is that, rather like explaining English divorce law to the more productive or wealthier spouse, or some aspects of EU law, is that if you are not upset by it, then you have not understood it.
Lee, yes, “the punishment is the process.” And that’s if you’re lucky. I can’t remember which state it is, one of the eastern states. Famous for swiping, er, seizing however much cash you have with you in excess of a nickel, and hanging onto it forever while you prove you’re not the President of MS-13 or something and it’s not drug money. And just try to get it back.
There have been a lot of horror stories like this in the news. Now I don’t think that all 30,000 or however many jurisdictions there are in the U.S. have PD’s or Sheriff’s Offices or District Attorneys who go in for this stuff, but the problem is pretty widespread, as even cops on the “Cops in favor of the 2nd Amendment” board I frequent have attested. They say that back in mid-century there was a problem, and then it got better, much better, but that “recently” meaning over the last 10-15 years it has gotten much worse again.
R7, I think there were two reasons Bundy got away with it. First, I believe that one of the D.A.’s or sheriffs or State Police higher-ups involved lobbied the rest not to be horsies’ hinies. I don’t know how much clout he had or whether his efforts were helpful, but it should be borne in mind.
Even more, I’d bet the thing was political. If the PTB think they’re going to get too much backlash from the general public, a strategic retreat is in order. The time is not yet right — the goats haven’t been softened up enough yet.
But maybe I’m just too cynical.
There was, by the way, some argument amongst the lawyers about whether in fact Bundy did have the right to the land (as the law currently stands). Seems to me somebody on Volokh was arguing that like it or not, the Feds were legally right that Bundy & family didn’t have a legal claim on the land.
“It was supposed to be a way of going after what the government deemed ill-gotten funds and property….”
Like inheritance, gub’mint sanctioned lottery winnings, or “weapons” (firearms through pocket knives)and children of men simply accused of violating “special” laws for women/gub’mint employees.
The list goes on of course…
Now I donât think that all 30,000 or however many jurisdictions there are in the U.S. have PDâs or Sheriffâs Offices or District Attorneys who go in for this stuff,
Julie, name the jurisdiction that doesn’t.
I think part of the problem comes back to prosecuting attorneys having absolute immunity from prosecution, even if they knowingly and wilfully stitch someone up they arent responsible for thier actions.
A few cases of the DA’s being sued into penury would go a long way to correcting State overreach.
I had no idea how shitty the US system was on this till fairly recently, so apologies if Im ploughing old ground for most readers.
There are people who have spent decades on death row due to prosecutors fitting them up in trial who have no right to sue those responsible.
http://www.washingtonpost.com/news/opinions/wp/2014/01/30/7th-circuit-pokes-a-hole-in-prosecutorial-immunity/
Prosecutors at all levels of the criminal justice system enjoy this absolute immunity from lawsuits. Itâs a sweeping bit of judge-made law that essentially shields them from any civil liability for even egregiously bad behavior, even when said behavior results in a wrongful convictions. Judges enjoy the same sort of immunity, and the cities and states that employ both are protected from âsovereign immunity,â which doesnât prohibit lawsuits outright, but still sets a pretty high bar to get into court.
The theory in support of absolute immunity holds that if prosecutors can be subjected to lawsuits for the decisions they make, they may start second-guessing themselves and become reluctant to file charges except in only the most open-and-shut cases. Thereâs also a fear that opening prosecutors up to lawsuits could bring a wave of frivolous filings that clog up the court system. Or, as the Supreme Court put it in a 2009 case, the policy is âa balance of evilsâ and it is âbetter to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.â
Just think of the Duke LaCrosse-team case and its prosecutor — Mike Nifong.
In England and Wales, a prosecutor can be held in contempt of court if there is abuse of process. This would go some way to remedying matters if there were prosecutorial abuse.
@Paul Marks: it is not “coming in Britain”, it is here in Britain, right here and now. It’s called the Proceeds of Crime Act 2002 (yes, 2002, you did read that right), and of course it will only be used against serious organised crime such as drug-dealers. Oh, by which they mean suspected drug dealers of course. Suspected by the police, that is. No due process required at all, hand over your house, your car, etc etc. The police, btw, get to auction your property off and keep the proceeds.
Except the law doesn’t say it can only be used against drug-dealers etc; the law doesn’t say anything at all about who it applies to, we just have to trust them on that one.
So in due course, naturally, this will be used again kiddy-fiddlers too, then people who put their bins out too early, and so it goes on.
Meh. After Kelo, when the Supreme Court decided that a town could take your house via eminent domain to benefit a wealthy developer, the Constitution has been a dead letter. They pissed on the 5th and 14th, the 1st only applies to pornography but not to political speech which might upset someone, RICO and the IRS took care of the 6th, and the 10th has been dead for 70 years.
Time to put the Constitution up on Ebay. We’re not using it, maybe we can get a few bucks for it!
Yes Andrew – I know.
Orthodoc- maybe the constitution needs to be reworded or amended so that the states and counties are as limited as the federal government, though I believe that the Feds can also resume land for pressing reasons.
Hey, the assets in question don’t have to be even suspected of being fruits of crime.
Just the other day, I got letters from the CA state gov, letting me know I had 60 days to formally inform them, and inform some public companies, that, yes indeed, I was still the owner of some stock, and I am still Me, at the same address (which they have, obviously). Otherwise the CA gov is going to take the stock. (though since I have the certificates in my physical possession, I wonder how they are going to do that?)
All this because I have not responded to proxy vote requests from the companies, for a few years. Isn’t it wonderful that the CA gov has so much time on its hands, that they can do this kind of janitorial work?
There is at least some hope. New Mexico has just abolished its civil asset forfeiture law; the execrable Eric Holder recently at least went through the motions of limiting the reach of the federal asset forfeiture statute (what this will really mean in practice is still anyone’s guess); and Obama’s nominee to replace Eric Holder as Attorney General, Loretta Lynch, has at least been questioned on the subject at a Senate hearing (how important this is to other senators is unknown). So at least public awareness of this issue is rising. Hey, it’s a start.