Posted on 02/13/2018 10:09:35 AM PST by nickcarraway
By Brian McVeigh, Calhoun County District Attorney and president of the Alabama District Attorneys Association; and Dave Sutton, Sheriff of Coffee County and president of the Alabama Sheriffs Association
The Alabama Legislature is considering legislation that would change the way civil asset forfeitures are handled in Alabama. While well-meaning, some of the proposed changes would essentially gut what is an effective crime-fighting tool while making it easier for drug dealers and other criminals to hang on to their ill-gotten gains. The result would be more crime.
Unfortunately, several special interest groups have pushed a narrative that law enforcement - police, sheriffs and other authorities - are using civil asset forfeiture to unfairly take money and property from innocent Alabamians.
That narrative is false. Law enforcement uses civil asset forfeiture only to go after criminals, and state law already guarantees a process that is clear and fair for any person to challenge forfeiture in court. State law also provides built-in safeguards that protect the property of those who have committed no crime.
Dave Sutton.jpg Sheriff Dave Sutton c/o Dave Sutton
What is civil asset forfeiture and why is it necessary?
First and foremost, civil asset forfeiture is a crime-fighting tool. It is used to both deprive criminals of the ill-gotten gains of crimes like drug-dealing and attack the means by which these crimes are committed.
Consider, for example, money seized in a drug raid. Drug dealers trade in cash. Not only do dealers sell their drugs for cash, they also use this cash to buy drugs from their suppliers. Taking just a few thousand dollars in drug money off the street means there is less money to buy drugs and, thus, less drugs being sold.
But it is also important to prevent criminals from enjoying the fruits of their crime. We know drug money as well as cash derived from the sale of stolen goods are used to buy vehicles, guns, houses, jewelry and other items. It makes no sense to allow those who traffic in crime to keep the proceeds of their crimes. That would reward criminality.
It is critical that civil asset forfeiture remains a staple in the crime-fighting toolbox.
Here are some important facts to keep in mind.
Law enforcement and prosecutors can't go after property unless it can be shown it was used in a crime, was gained through criminal action or bought with the proceeds of a crime. Alabama law lays out a clear process that prosecutors must follow in going after a criminal's assets and an easy process for people to challenge the forfeiture.
More important, no asset can be forfeited in state court without the approval of a judge who weighs evidence both for and against forfeiture. Even in cases in which the property owner doesn't contest the forfeiture, a judge must still sign off on it. These proceedings begin with public document filings in circuit court and are disposed of in an open and public forum, with all proceeds subject to audit.
In fact, the procedures used in civil forfeitures are the same as those used in every civil lawsuit filed in Alabama. If there is something fundamentally wrong with the way we handle civil forfeitures, then there is also something fundamentally wrong with the way all lawsuits are handled.
Two changes to the state's civil forfeiture law are especially concerning to DAs and law enforcement. One would allow forfeiture only if there is a criminal conviction; the other would require that any proceeds from forfeitures go to the state's General Fund rather than local law enforcement. Though these changes may sound good, they would hurt public safety and make civil forfeiture less fair.
Requiring criminal convictions would result in more criminal charges filed and more people going to prison for lesser crimes. Consider pretrial diversion programs, such as drug court, for example. These programs allow people arrested for nonviolent crimes, including some drug charges, to go into treatment and other programs that keep them out of prison. Participants in these programs are not convicted of a crime, so under the proposed change, the only way to deprive them of their ill-gotten gains would be to prosecute them.
Meanwhile, sending the proceeds of forfeiture to the state's General Fund would result in fewer busts of drug and stolen property rings. What incentive would local police and sheriffs have to invest manpower, resources and time in these operations if they don't receive proceeds to cover their costs?
Prosecutors and law enforcement take issue with other parts of the proposed legislation. Alabama passed meaningful asset forfeiture reform in 2014 that strengthened safeguards and built on existing due process protections for criminal defendants, innocent owners and bona fide lienholders. We are always willing to work with lawmakers to strengthen Alabama's laws to fight crime and protect our citizens.
First and foremost, civil asset forfeiture is a crime-fighting tool.
First bullet point - didn't take long to get to "it's a tool to use" formulation that actually means selective enforcement. It's a tool that may either be used or not at the discretion of the officer and the state he or she represents. What happened to due process here? Oh, we'll get to that...
Law enforcement and prosecutors can't go after property unless it can be shown it was used in a crime, was gained through criminal action or bought with the proceeds of a crime.
Well, that's a relief. "It can be shown" means due process, right? Uh, not exactly, because one of the changes they don't want is:
One would allow forfeiture only if there is a criminal conviction.
So this due process - that pesky 5th Amendment again - doesn't mean a conviction in a trial, it means that the accuser needs to "demonstrate" to the judge that the forfeiture is related to a "crime" that hasn't been tried yet. Not only is the proper term for this "accusation" in plain English, but this is essentially "due process is whatever we say it is," and that's not going to cut it Constitutionally. But it gets better:
What incentive would local police and sheriffs have to invest manpower, resources and time in these operations if they don't receive proceeds to cover their costs?
WHAT? The "incentive" for someone doing a job is their salary and the respect one receives for doing a job well. If they have insufficient resources for this the place to obtain them is the state budget, not the pockets of anyone passing by. And it gets worse:
Even in cases in which the property owner doesn't contest the forfeiture, a judge must still sign off on it.
So what? A person has his or her property taken at the point of a gun as a function of an accusation, not a conviction, and must undergo an expensive and complicated legal process to hope to recover it that may or may not even be granted? Paid for how, by the money that's just been taken?
This is pure sophistry. The Constitution is clear. Law enforcement may not become a means of institutional and personal enrichment. I am astonished that anyone with even a rudimentary knowledge of the Constitution could pen such nonsense, much less believe it.
The snag is just how is “criminality” adjudicated here. It seems to be enough to sue the objects, without convicting a person. That’s a legal fiction big enough to drive a truck through, yet it’s been accepted by the highest courts. Any fix will need to be legislative and/or constitutional.
Someone sold it to the USSC and that “ends it” like it “ended” the questions of permissibility of unlimited abortion and mandation of gay marriage.
How shall a different philosophy be sold? And if sold, how shall it be ensconced in law?
Absolute horse hillary
Does this mean businesses should pay the police to prevent crimes?
...nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The USSC has only been able to avoid tossing this entire body of law out by carefully restricting what it is willing to consider regarding the matter. Congress has the ability to take it out of their scope (Article III, Section 2) if they continue to do so.
They should definitely "gut" pre-conviction civil asset forfeiture.
+1
And, more importantly than either of those, as a source of easy free money.
An accurate and coherent picture of the evils resulting from this kind of thing will need to be beheld by the American people at large, and they will have to care about it too.
The good Lord help us. Personally I think the whole idea of even using it to dampen down clandestine street drug trade has got bad problems. The interdiction rate is pretty dismal, about 10% for marijuana. Police may not even WANT to see people convicted that they can “tax” instead. If sending a lot of dealers to jail kills the golden goose for them, they won’t want that.
This is an exercise in building little private kingdoms in the name of looking like something is being done about a problem while not doing very much about it.
A free people never have to prove they are innocent.
What a pant load. This is all about protecting a rice bowl.
don’t gut it, abolish it. It’s tyranny pure and simple.
Amen.
For far too long in far too many places, “civil asset forfeiture” has been used as a political tool. Make an accusation and take everything.
This is abuse. Plain and simple.
And I neglected to say, your comment cracked me up.
Really, you should not give them anymore ideas.
We don’t want it to scream. We want it to gasp its last and just die.
Maybe a system based on plain truth and not pecuniary interest will damp crime down better, not worse.
That's just my gut feeling...
;-)
The most simple reform of civil asset forfeiture that will help get rid of a lot of the abuses is to transfer all proceeds to the state’s general fund. 100% of the proceeds must go to the general fund. No kickbacks of any kind can accrue to those in charge of enforcing the law. That would include the individual police departments, the cities, and courts.
Have you ever dealt with the IRS or state tax boards?
I probably shouldn’t give them any ideas. It might come to that.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.