4 ms·

No, fines and civil forfeiture are completely different. Forfeiture would be more like the EPA confiscating (and then auctioning off) a factory because it migh

by nmrm2 11y ago

No, fines and civil forfeiture are completely different. Forfeiture would be more like the EPA confiscating (and then auctioning off) a factory because it might have been polluting too much maybe, with the onus on the company to prove that they weren't polluting. Or the SEC confiscating all the money you made on an insider trade, and then demanding you prove that you didn't insider trade before getting the money back.

dpierce9 11y ago
Just to be clear, the order to show cause process of a civil case involving the SEC is this: pay up or prove to the agency beyond some standard of proof that you didn't do what we said you did. The differences are that they don't take the money in advance and offer you the option of fighting the case.
- nmrm2 11y ago
  Thanks for the clarification. (Perhaps the most important difference is that if you're being fined by the SEC, you've probably got lawyers who are ready to defend you. One of the most egregious things about civil forfeiture is the way it preys on poor people.)
logfromblammo 11y ago
Asset forfeiture suits are structured as in rem proceedings. You are not charging the presumed owner with a crime, nor accusing that person of a civil offense. You are literally accusing an inanimate object of being involved in a crime. For instance, you might charge a $20 bill with being used to buy methamphetamine. So you take the $20 from the person who was holding it. The identity or presumed innocence of that person is entirely irrelevant. Then you set the $20 bill down at the defendant's table in court and loudly accuse it of being a very, very naughty banknote, who ought to be punished severely, then reformed utterly by being spent for a righteous cause. The judge then casts a severe gaze down upon the money from the bench, and asks the money if it has anything to say in its own defense. Andrew Jackson remains mute. Meanwhile, everyone else--those who had not been rendered permanently insane by their forfeiture classes in law school--look on and think to themselves "WTF? This is nucking futs." The (former) owner of the $20 then has to prove that they have standing to represent the $20. Then they have to prove its innocence, because it is not a human, or even a corporate fiction of a person, and therefore does not have the right to be presumed innocent until proven guilty. Everyone outside the existing system sees it like this: the cops stole $20 from some guy, who was never convicted, or even charged with a crime. Then they put him through the legal wringer before even giving him the opportunity to get it back. A fine has an accused party, and the accuser has to show evidence that the accused was violating a law, regulation, contract, or some other agreement before that fine can be collected. The fine would then be collected after the criminal conviction or civil judgment happened. The logical place to use forfeiture is where no owner or presumed owner can be found, and there is clear evidence of criminal activity. If you find an abandoned car with stolen plates and a missing VIN, and it had 20kg of cocaine and a stolen AR-15 in the trunk, the state would probably forfeit the car. Anyone coming forward to claim ownership would presumably be charged criminally. You only resort to in rem when no actual person can be found to take responsibility. That makes some amount of sense. Unfortunately, forfeiture has warped into a legal mechanism for highway robbery.

by nmrm2 11y ago

dpierce9 11y ago

Just to be clear, the order to show cause process of a civil case involving the SEC is this: pay up or prove to the agency beyond some standard of proof that you didn't do what we said you did. The differences are that they don't take the money in advance and offer you the option of fighting the case.

nmrm2 11y ago
Thanks for the clarification. (Perhaps the most important difference is that if you're being fined by the SEC, you've probably got lawyers who are ready to defend you. One of the most egregious things about civil forfeiture is the way it preys on poor people.)

logfromblammo 11y ago

Asset forfeiture suits are structured as in rem proceedings. You are not charging the presumed owner with a crime, nor accusing that person of a civil offense. You are literally accusing an inanimate object of being involved in a crime. For instance, you might charge a $20 bill with being used to buy methamphetamine. So you take the $20 from the person who was holding it. The identity or presumed innocence of that person is entirely irrelevant. Then you set the $20 bill down at the defendant's table in court and loudly accuse it of being a very, very naughty banknote, who ought to be punished severely, then reformed utterly by being spent for a righteous cause. The judge then casts a severe gaze down upon the money from the bench, and asks the money if it has anything to say in its own defense. Andrew Jackson remains mute. Meanwhile, everyone else--those who had not been rendered permanently insane by their forfeiture classes in law school--look on and think to themselves "WTF? This is nucking futs." The (former) owner of the $20 then has to prove that they have standing to represent the $20. Then they have to prove its innocence, because it is not a human, or even a corporate fiction of a person, and therefore does not have the right to be presumed innocent until proven guilty. Everyone outside the existing system sees it like this: the cops stole $20 from some guy, who was never convicted, or even charged with a crime. Then they put him through the legal wringer before even giving him the opportunity to get it back. A fine has an accused party, and the accuser has to show evidence that the accused was violating a law, regulation, contract, or some other agreement before that fine can be collected. The fine would then be collected after the criminal conviction or civil judgment happened. The logical place to use forfeiture is where no owner or presumed owner can be found, and there is clear evidence of criminal activity. If you find an abandoned car with stolen plates and a missing VIN, and it had 20kg of cocaine and a stolen AR-15 in the trunk, the state would probably forfeit the car. Anyone coming forward to claim ownership would presumably be charged criminally. You only resort to in rem when no actual person can be found to take responsibility. That makes some amount of sense. Unfortunately, forfeiture has warped into a legal mechanism for highway robbery.