Reform, or better yet, elimination of civil asset forfeiture is long overdue. It’s a license to steal under color of authority.
Yeah, it creates all sorts of perverse incentives and conflicts of interest for those last able to be trusted in that scenario.
It is simplistic to say it is a license to steal under authority of law. Taxes fit this definition as well at all levels - income, sales, property, etc.
Law enforcement is a continuous balancing act and it will never reach homeostasis. There can never be a balance.
When a person commits an illegal act our laws and society - the very idea of justice - demands punishment. It is punishment because illegal acts have consequences. It is also punishment as a deterrent to others from doing the same illegal acts.
There have been abuses of civil forfeiture - without a doubt. I don’t dispute that as a law enforcement officer. Having a Sheriff’s Office set up an interdiction unit on an interstate pulling people over looking for bulk cash is wrong. It is a misapplication of law enforcement and many of the most grievous abuses have come from so called “interdiction.” However, none of us would likely have a problem on the merits with a police officer who watched a person stand on a corner taking cash and handing out drugs seizing the cash in the pocket of that person. None of us on the merits would have a problem with a drug kingpin who was PROVEN to be dealing large amounts of drugs having his home (purchased with such proceeds) having his home or his Cadillac Escalade (purchased with such proceeds) seized.
Forfeiture has a legitimate role in the legal process of punishment.
The easiest place to draw the line on asset forfeiture is this - WITHOUT legal prosecution of the asset there should be no forfeiture! This is where the pendulum has swung into an area that makes even those of us in law enforcement uncomfortable. This is the area the courts are beginning to address as they are supposed to as part of our checks and balances.
I would further submit to you that the idea of “forfeiture” without any person being charged or convicted goes far beyond the usual examples I see here on FR. Study the allegations against the DOJ of huge settlements by DOJ against corporations for “wrong doing.” This is a form of the same abuse.
I want drug dealers to pay for their crimes. I don’t want drug dealers to decide - I will do this crime until I go to jail and then get out of jail and enjoy the fruits of my illegal acts. That is wrong thinking and we should all be able to agree - if the person is convicted of the crime and the fruits of the illegal acts are shown to be part of the crime it stands to reason that “seizure” is part of the punishment so crime does not pay.
On the other hand, the person who gets on an airplane with $20000 cash to purchase a car at the destination IS NOT COMMITTING A CRIME. I am continually amazed to read stories of seizures with this fact pattern. Not because every person with this story has legal intent because they don’t. The drug dealer in New York who flies to Phoenix with $20000 cash was most likely going to buy drugs. However, it is still up to law enforcement to prove this to complete the seizure. Perhaps an easy solution would be to have the government pay the legal fees for a person who contested such a seizure (because they do get a hearing) and prevailed. This would stop 90% of the abuses we read about. Perhaps, absent any evidence of illegal intent using the same probable cause required for a search warrant (another bypass of a constitutional right, the seizure should not occur. Why not appoint a public defender for the asset so the property of the accused is entitled to the same representation a person is in a court of law?
That is the rub. The animosity towards law enforcement over abuses of these laws often ignores the other two groups responsible - the legislature who makes the laws and the courts who uphold the laws. It is the goal to find the balance on this topic - one that will, by its very nature, never be perfect. However, the issue is far more complex than it is often portrayed here on FR in the comments and opinion pieces. My personal take having seen this law applied for two decades is that the courts and politicians are awakening to the pendulum being too far from center on the topic. In my humble opinion, the answer will never to be to erase all forfeiture laws. The best answer may be to treat the asset just as one would a criminal defendant. It must always be based on the totality of the circumstances, but the truth that it might be cheaper to surrender the asset than to fight for it is offensive. There is a problem in our courts with this concept and I angrily disagree with forfeitures based on this reason - that is theft. I also angrily disagree with government taking money from me in the form of taxes and paying for the person in front of me at the grocery check out line to buy junk food - but that is another soapbox I won’t climb on here.
I agree with your suggestion of reform. However, I respectfully disagree about elimination.
The “authorities” seized my son’s computer. He lived in a
situation where many people had access to his computer.
Then “someone” reported him to the police, or rather,
reported his computer - also he has had major surgery in
the past few months as well as dental surgery. He had some
pain pills in his house to deal with the pain. They blew
this up as big as they could make it, even citing “drug
paraphernalia” while not citing specifics. - He had a very
good job; and I suspect that someone set him up and even
“reported” him. - This is puzzling to us & we live far away
& can’t be a lot of help. We did bail him out of jail as
he was in solitaire & unable to communicate with anyone on
the outside. They seized his computer & I don’t know what
else. (I suspect someone wanted his job vacated.)
Yepper!