8 ms·

No one would argue illegally obtained money cannot be confiscated. A bank robber cannot keep his stolen money, or someone selling stolen goods, or a drug deale

No one would argue illegally obtained money cannot be confiscated. A bank robber cannot keep his stolen money, or someone selling stolen goods, or a drug dealer. The trouble with civil asset forfeiture, as its properly known, is that the burden of proof has been shifted to the accused. So, instead of the state having to prove your money is illegally obtained, or that any crime was committed, you have to prove there was not. For a small amount of money, it is not worth it to some people to invest the time and money to sue the state to get the money back. For those that can afford a lawyer and a lawsuit, there is (Constitutional) due process. The remedy lies with the legislatures to add a criminal element, to reverse the burden of proof, and to add an interest penalty to losing agencies. As for the article, it is a novel idea. I would think that the amount and type of official corruption would be a better indicator of a state in decline.

merpnderp 11y ago
But what set of idiot justices decided that the police can stop you, see you have $10k in your trunk, and then take it even though you tell them it is from your savings and you're on the way to buy a car?
- pjc50 11y ago
  The US Supreme Court, on a number of occasions. The case law is just full of outrageous stupidity, such as https://en.wikipedia.org/wiki/Bennis_v._Michigan https://en.wikipedia.org/wiki/Bennis_v._Michigan in the USSC ruled that a woman's car could be seized due to her husband's offence that was outside her control. The whole history of in rem actions is bonkers, as cases have titles like https://en.wikipedia.org/wiki/United_States_v._Article_Consisting_of_50,000_Cardboard_Boxes_More_or_Less,_Each_Containing_One_Pair_of_Clacker_Balls https://en.wikipedia.org/wiki/United_States_v._Article_Consi...
  - rayiner 11y ago
    You have to take decisions like that in context. That forfeiture arose under Michigan law. The Supreme Court wasn't saying that it's a good idea to allow the state to seize the car without accounting for the wife's interest. It was saying that Michigan's lack of an innocent owner defense to the seizure didn't rise to the level of a Constitutional violation. A lot of decisions that seem "outrageously stupid" make more sense if you think of the Supreme Court as an umpire. The democratically-elected legislatures are supposed to make good decisions. The unelected Supreme Court should only check them if they do something egregiously against the rules. The Court should let the "game play on" if there's not a very good reason to say that a 200+ year old document trumps a state legislature's contemporary decisions.
    - drumdance 11y ago
      The right to unreasonable search and seizure at the Federal level supersedes all state law. This was just a bad Supreme Court decision, morally in the same "ballpark" as Plessy vs. Ferguson
      - tptacek 11y ago
        Unfortunately for this argument, the word "reasonable" means pretty much the same thing now as it did in 1787, and is clearly meant to delegate most of the answer to this question to the people (in the form of the legislature), and not the philosopher-kings of the court. You will of course come up with many arguments, virtually all of which I'll agree with, that asset forfeiture is "unreasonable". The problem is that other people disagree with you, and, specifically and distinctively with this particular item in the bill of rights, the court is supposed to defer to the legislature as much as it can.
        jbooth 11y ago
        I'm not a lawyer but this strongly disagrees with everything I learned in high school civics class about judicial review, and with many many high profile court cases overturning popularly enacted laws, from Marbury v Madison through to the current day gay marriage ban reversals. It seems pretty cut and dried to me that the 4th amendment supersedes any law passed in direct opposition, just like the 1st or 2nd would. This isn't a case where the courts would be making multiple logical leaps to invalidate a law they disagree with, you can describe it in 4 words "seizure without a trial", then look at the 4th amendemnt.
        tptacek 11y ago
        SCOTUS can of course overturn any statute for any reason, valid or not, subject to very few practical restrictions. So when we're talking about where they'll intervene, we're always doing that with the proviso that we're predicting their behavior based on their charter and their history. Having said that, the history of 4A law suggests that the word "reasonable" in 4A connotes a mandate for unusual deference to the legislature --- and SCOTUS already tends strongly towards deference.
  - clock_tower 11y ago
    Speaking of preposterous titles, don't forget "United States v. Forty Barrels and Twenty Casks of Coca-Cola" (https://en.wikipedia.org/wiki/United_States_v._Forty_Barrels_%26_Twenty_Kegs_of_Coca-Cola https://en.wikipedia.org/wiki/United_States_v._Forty_Barrels...), in which the vigilante-ish first commissioner of the FDA tried to remove the caffeine from Coca-Cola. (The company had already removed the cocaine.)
- Symmetry 11y ago
  It's mostly Nixon's fault. Back in the early 70s crime was rising and people were scared and they wanted to hear about how politicians were doing something. Murders were really a matter for local law enforcement rather than the Feds so Nixon came up with the politically brilliant idea of blaming crime on drug use, announcing a war on drugs, and creating new tools such as this sort of seizure of money. There was a big expansion of this in 1984 pushed by Biden that more or less gave us the modern form of asset forfeiture. And we're going to have to solve this problem at the Federal level. Many states have laws preventing police from keeping the money they seize. But the DEA is happy to take credit for the seizure, keep n% of the money, and hand the rest back to the department that did the seizing.
deleted 11y ago
[deleted]
Lawtonfogle 11y ago
>The trouble with civil asset forfeiture, as its properly known, is that the burden of proof has been shifted to the accused. So, instead of the state having to prove your money is illegally obtained, or that any crime was committed, you have to prove there was not. It is worse than that. The money is what is charged, not the person. So the money has to prove itself innocent, which is pretty much impossible. If you hire a fancy lawyer, you might be able to fight on the money's behalf. It seems so weird that had one read it in a fictional story, it would've broken one's suspension of disbelief.
- rayiner 11y ago
  The money isn't "charged." The case is just styled as In re $35.00 of US Currency because the case is about the ownership status of the property, not about any specific person. The money doesn't have to "prove itself innocent." The legitimate owner just needs to rebut the government's argument that it was illegally obtained.
  - ChristianBundy 11y ago
    But shouldn't the burden of proof rest on the government?
    - rayiner 11y ago
      It should be, and it is (at least under federal law): https://www.law.cornell.edu/uscode/text/18/983 https://www.law.cornell.edu/uscode/text/18/983 ("the burden of proof is on the Government to establish, by a preponderance of the evidence, that the property is subject to forfeiture"). What I think causes confusion is the "innocent owner defense" where the burden is on the owner to prove that, notwithstanding that the property may be subject to forfeiture because it is illegal proceeds, the owner came by the property legitimately.
      - Spooky23 11y ago
        That's a low standard for the government to meet. "Preponderance of the evidence" means that the government doesn't need to prove the property is subject to forfeiture, just show that 50% of the evidence indicates that it could be. (guy in car from out of state at night, guy fits the profile of something, road is a "drug corridor", guy had alot of cash, guy was speeding) It's hard to convict you of a crime for driving around with a envelope stuffed with a lot of cash. But's it's easy to demonstrate reasons why the cash may be used for nefarious purposes.
mc32 11y ago
Didn't civil forfeiture take off as a way to counter the rise of drug monies making kingpins? If to a great degree it's true and simultaneously we're reëvaluating cannabis and society and reëxamining three strikes laws, etc., I would hope we also take a critical look at this shift in burden of proof transferred to the accused with the hope it goes back to the prosecution.
- acveilleux 11y ago
  Yeah but policing is expensive, being tough on crime is popular (but mostly only with white republicans) and lowering or eliminating taxes is sacrosanct to republicans. Perfect combination for these kind of abuses. As long as the victimized populaces doesn't vote for the politicians in power or is otherwise disenfranchised and poor, it's a great plan /s.
  - mc32 11y ago
    I think would not paint anti crime with such a broad brush. Many times the places supporting toughness on crime are places with high crime rates. Many marginalized areas want _more_ policing, not less. Also civil forfeiture usually ruffles conservatives as government overreach. Basically, toughness on crime came from many odd bedfellows. For example, California popularized three strikes, a very liberal state.
  - MCRed 11y ago
    Biden is one of the architects of these abuses, and the Democrats elected him vice president-- twice. Plenty of blame to go around.
    - spacemanmatt 11y ago
      I blame the dearth of choices, not the voters. I think they voted for the best option they had.
hfourm 11y ago
I think another big negative here is just the fact that it shifts police org's focus towards crimes where they can "fund" themselves. I repeat this statistic a lot, but the solved murder rate has fallen from ~90% in the 60s to ~60% in recent years. You'd think with all our new forensic technology and lower overall murder rates it would be opposite.
- kevin_thibedeau 11y ago
  That 90% figure isn't reliable given the tendency to force confessions out of "known troublemakers" that was far more rampant in the 60s.
  - hfourm 11y ago
    Maybe, but I still doubt that equates to a 30% drop. I am more a fan of the whole, increase in division between community and its police leading to lack of informants among other things, idea.
- kbenson 11y ago
  There's lots of ways to read the numbers. Total murders is about the same as the high in the 60s, ~14k, but instead of 200 million people, we have well over 300 million[1]. That's over a 33% drop in per-capita murders. 1: http://www.disastercenter.com/crime/uscrime.htm http://www.disastercenter.com/crime/uscrime.htm
cft 11y ago
A suspected bank robber gets arrested when the money is kept. The outcome of the arrest is a conviction or an acquittal, which (automatically) determines the fate of the money. That's different from what is described in the article
- asmithmd1 11y ago
  Forfeiture was designed for cases like this: A bank robbery suspect is arrested with cash on him. The police have no evidence against the suspect but obtain a written confession - the trouble is they did not read him his rights. The confession is inadmissible, the suspect goes free. Do you hand him his money on the way out of court? In anti-trust cases damages are tripled as a deterrent, why not institute the same penalty for police? If someone wins their money back from the police they get triple what the police tried to seize.
  - shasta 11y ago
    Maybe treble damages would help, but with many areas of the legal system it seems to me that what's needed most is a much more efficient first pass by a neutral party (court) to determine reasonable presumptions that can be challenged by slower and more deliberate passes. In other words, why are the police and DA making this determination? Why can't we have neutral party making the determination as to what happens to seized property?
  - __jal 11y ago
    One reason not to institute the same penalty for the police is that taxpayers end up paying. You might say, good, that means voters will try to ensure future police don't do this shit. Which is a nice theory, but probably doesn't work out in practice. In practice, you have small towns that can be bankrupted by a good-size suit, which is probably not a good outcome. You also have large cities that have room to minimax what they can get away with, and now all you've done is possibly deterred really egregious cases. It gets substantially more complicated with the intersection of feds and state agencies, where (depending on the state) police are good at gaming where the money goes depending on how and what is charged by whom. (There are complicated revenue sharing arrangements between, for instance, the DEA and local cops for forfeitures. If your hypothetical bank robber needs to be deprived of the money (and I don't think I agree, but that's a different discussion), the proper way to align incentives is to ensure the police do not see any of the money. Period. Give it back to the bank, put it in the state general fund, give it to a random orphan, burn it, whatever[1]. But as long as the police can by shiny toys with it (conference attendance, margarita machines and outright theft have all happened), they have an incentive to push it as hard as they can. [1] Giving the funds to the state still has incentive problems, but they are muted. I don't know that there's any empirical evidence if it is sufficiently muted to align police behavior with what most non-cops consider reasonable.
asmithmd1 11y ago
Adding interest to the seized money is not enough. In anti-trust cases the US law is that damages are tripled to provide a deterrent to large companies trying to stifle competition from small companies. Why not have the same law in place here, if by some miracle a victim is able to prove their money is innocent they would get triple their money from the police.
- harryh 11y ago
  Because the police haven't broken any laws and those guilty of anti-trust violations have.
- MCRed 11y ago
  Treble damages is not enough. The police and everyone involved in the seizure belongs in jail for the term appropriate under Grand Theft statutes. Though I think there is a case that since they are government officials, the sentences should are trebled.

merpnderp 11y ago

But what set of idiot justices decided that the police can stop you, see you have $10k in your trunk, and then take it even though you tell them it is from your savings and you're on the way to buy a car?

pjc50 11y ago
The US Supreme Court, on a number of occasions. The case law is just full of outrageous stupidity, such as https://en.wikipedia.org/wiki/Bennis_v._Michigan https://en.wikipedia.org/wiki/Bennis_v._Michigan in the USSC ruled that a woman's car could be seized due to her husband's offence that was outside her control. The whole history of in rem actions is bonkers, as cases have titles like https://en.wikipedia.org/wiki/United_States_v._Article_Consisting_of_50,000_Cardboard_Boxes_More_or_Less,_Each_Containing_One_Pair_of_Clacker_Balls https://en.wikipedia.org/wiki/United_States_v._Article_Consi...
- rayiner 11y ago
  You have to take decisions like that in context. That forfeiture arose under Michigan law. The Supreme Court wasn't saying that it's a good idea to allow the state to seize the car without accounting for the wife's interest. It was saying that Michigan's lack of an innocent owner defense to the seizure didn't rise to the level of a Constitutional violation. A lot of decisions that seem "outrageously stupid" make more sense if you think of the Supreme Court as an umpire. The democratically-elected legislatures are supposed to make good decisions. The unelected Supreme Court should only check them if they do something egregiously against the rules. The Court should let the "game play on" if there's not a very good reason to say that a 200+ year old document trumps a state legislature's contemporary decisions.
  - drumdance 11y ago
    The right to unreasonable search and seizure at the Federal level supersedes all state law. This was just a bad Supreme Court decision, morally in the same "ballpark" as Plessy vs. Ferguson
    - tptacek 11y ago
      Unfortunately for this argument, the word "reasonable" means pretty much the same thing now as it did in 1787, and is clearly meant to delegate most of the answer to this question to the people (in the form of the legislature), and not the philosopher-kings of the court. You will of course come up with many arguments, virtually all of which I'll agree with, that asset forfeiture is "unreasonable". The problem is that other people disagree with you, and, specifically and distinctively with this particular item in the bill of rights, the court is supposed to defer to the legislature as much as it can.
      - jbooth 11y ago
        I'm not a lawyer but this strongly disagrees with everything I learned in high school civics class about judicial review, and with many many high profile court cases overturning popularly enacted laws, from Marbury v Madison through to the current day gay marriage ban reversals. It seems pretty cut and dried to me that the 4th amendment supersedes any law passed in direct opposition, just like the 1st or 2nd would. This isn't a case where the courts would be making multiple logical leaps to invalidate a law they disagree with, you can describe it in 4 words "seizure without a trial", then look at the 4th amendemnt.
        tptacek 11y ago
        SCOTUS can of course overturn any statute for any reason, valid or not, subject to very few practical restrictions. So when we're talking about where they'll intervene, we're always doing that with the proviso that we're predicting their behavior based on their charter and their history. Having said that, the history of 4A law suggests that the word "reasonable" in 4A connotes a mandate for unusual deference to the legislature --- and SCOTUS already tends strongly towards deference.
- clock_tower 11y ago
  Speaking of preposterous titles, don't forget "United States v. Forty Barrels and Twenty Casks of Coca-Cola" (https://en.wikipedia.org/wiki/United_States_v._Forty_Barrels_%26_Twenty_Kegs_of_Coca-Cola https://en.wikipedia.org/wiki/United_States_v._Forty_Barrels...), in which the vigilante-ish first commissioner of the FDA tried to remove the caffeine from Coca-Cola. (The company had already removed the cocaine.)
Symmetry 11y ago
It's mostly Nixon's fault. Back in the early 70s crime was rising and people were scared and they wanted to hear about how politicians were doing something. Murders were really a matter for local law enforcement rather than the Feds so Nixon came up with the politically brilliant idea of blaming crime on drug use, announcing a war on drugs, and creating new tools such as this sort of seizure of money. There was a big expansion of this in 1984 pushed by Biden that more or less gave us the modern form of asset forfeiture. And we're going to have to solve this problem at the Federal level. Many states have laws preventing police from keeping the money they seize. But the DEA is happy to take credit for the seizure, keep n% of the money, and hand the rest back to the department that did the seizing.

deleted 11y ago

[deleted]

Lawtonfogle 11y ago

>The trouble with civil asset forfeiture, as its properly known, is that the burden of proof has been shifted to the accused. So, instead of the state having to prove your money is illegally obtained, or that any crime was committed, you have to prove there was not. It is worse than that. The money is what is charged, not the person. So the money has to prove itself innocent, which is pretty much impossible. If you hire a fancy lawyer, you might be able to fight on the money's behalf. It seems so weird that had one read it in a fictional story, it would've broken one's suspension of disbelief.

rayiner 11y ago
The money isn't "charged." The case is just styled as In re $35.00 of US Currency because the case is about the ownership status of the property, not about any specific person. The money doesn't have to "prove itself innocent." The legitimate owner just needs to rebut the government's argument that it was illegally obtained.
- ChristianBundy 11y ago
  But shouldn't the burden of proof rest on the government?
  - rayiner 11y ago
    It should be, and it is (at least under federal law): https://www.law.cornell.edu/uscode/text/18/983 https://www.law.cornell.edu/uscode/text/18/983 ("the burden of proof is on the Government to establish, by a preponderance of the evidence, that the property is subject to forfeiture"). What I think causes confusion is the "innocent owner defense" where the burden is on the owner to prove that, notwithstanding that the property may be subject to forfeiture because it is illegal proceeds, the owner came by the property legitimately.
    - Spooky23 11y ago
      That's a low standard for the government to meet. "Preponderance of the evidence" means that the government doesn't need to prove the property is subject to forfeiture, just show that 50% of the evidence indicates that it could be. (guy in car from out of state at night, guy fits the profile of something, road is a "drug corridor", guy had alot of cash, guy was speeding) It's hard to convict you of a crime for driving around with a envelope stuffed with a lot of cash. But's it's easy to demonstrate reasons why the cash may be used for nefarious purposes.

mc32 11y ago

Didn't civil forfeiture take off as a way to counter the rise of drug monies making kingpins? If to a great degree it's true and simultaneously we're reëvaluating cannabis and society and reëxamining three strikes laws, etc., I would hope we also take a critical look at this shift in burden of proof transferred to the accused with the hope it goes back to the prosecution.

acveilleux 11y ago
Yeah but policing is expensive, being tough on crime is popular (but mostly only with white republicans) and lowering or eliminating taxes is sacrosanct to republicans. Perfect combination for these kind of abuses. As long as the victimized populaces doesn't vote for the politicians in power or is otherwise disenfranchised and poor, it's a great plan /s.
- mc32 11y ago
  I think would not paint anti crime with such a broad brush. Many times the places supporting toughness on crime are places with high crime rates. Many marginalized areas want _more_ policing, not less. Also civil forfeiture usually ruffles conservatives as government overreach. Basically, toughness on crime came from many odd bedfellows. For example, California popularized three strikes, a very liberal state.
- MCRed 11y ago
  Biden is one of the architects of these abuses, and the Democrats elected him vice president-- twice. Plenty of blame to go around.
  - spacemanmatt 11y ago
    I blame the dearth of choices, not the voters. I think they voted for the best option they had.

hfourm 11y ago

I think another big negative here is just the fact that it shifts police org's focus towards crimes where they can "fund" themselves. I repeat this statistic a lot, but the solved murder rate has fallen from ~90% in the 60s to ~60% in recent years. You'd think with all our new forensic technology and lower overall murder rates it would be opposite.

kevin_thibedeau 11y ago
That 90% figure isn't reliable given the tendency to force confessions out of "known troublemakers" that was far more rampant in the 60s.
- hfourm 11y ago
  Maybe, but I still doubt that equates to a 30% drop. I am more a fan of the whole, increase in division between community and its police leading to lack of informants among other things, idea.
kbenson 11y ago
There's lots of ways to read the numbers. Total murders is about the same as the high in the 60s, ~14k, but instead of 200 million people, we have well over 300 million[1]. That's over a 33% drop in per-capita murders. 1: http://www.disastercenter.com/crime/uscrime.htm http://www.disastercenter.com/crime/uscrime.htm

cft 11y ago

A suspected bank robber gets arrested when the money is kept. The outcome of the arrest is a conviction or an acquittal, which (automatically) determines the fate of the money. That's different from what is described in the article

asmithmd1 11y ago
Forfeiture was designed for cases like this: A bank robbery suspect is arrested with cash on him. The police have no evidence against the suspect but obtain a written confession - the trouble is they did not read him his rights. The confession is inadmissible, the suspect goes free. Do you hand him his money on the way out of court? In anti-trust cases damages are tripled as a deterrent, why not institute the same penalty for police? If someone wins their money back from the police they get triple what the police tried to seize.
- shasta 11y ago
  Maybe treble damages would help, but with many areas of the legal system it seems to me that what's needed most is a much more efficient first pass by a neutral party (court) to determine reasonable presumptions that can be challenged by slower and more deliberate passes. In other words, why are the police and DA making this determination? Why can't we have neutral party making the determination as to what happens to seized property?
- __jal 11y ago
  One reason not to institute the same penalty for the police is that taxpayers end up paying. You might say, good, that means voters will try to ensure future police don't do this shit. Which is a nice theory, but probably doesn't work out in practice. In practice, you have small towns that can be bankrupted by a good-size suit, which is probably not a good outcome. You also have large cities that have room to minimax what they can get away with, and now all you've done is possibly deterred really egregious cases. It gets substantially more complicated with the intersection of feds and state agencies, where (depending on the state) police are good at gaming where the money goes depending on how and what is charged by whom. (There are complicated revenue sharing arrangements between, for instance, the DEA and local cops for forfeitures. If your hypothetical bank robber needs to be deprived of the money (and I don't think I agree, but that's a different discussion), the proper way to align incentives is to ensure the police do not see any of the money. Period. Give it back to the bank, put it in the state general fund, give it to a random orphan, burn it, whatever[1]. But as long as the police can by shiny toys with it (conference attendance, margarita machines and outright theft have all happened), they have an incentive to push it as hard as they can. [1] Giving the funds to the state still has incentive problems, but they are muted. I don't know that there's any empirical evidence if it is sufficiently muted to align police behavior with what most non-cops consider reasonable.

asmithmd1 11y ago

Adding interest to the seized money is not enough. In anti-trust cases the US law is that damages are tripled to provide a deterrent to large companies trying to stifle competition from small companies. Why not have the same law in place here, if by some miracle a victim is able to prove their money is innocent they would get triple their money from the police.

harryh 11y ago
Because the police haven't broken any laws and those guilty of anti-trust violations have.
MCRed 11y ago
Treble damages is not enough. The police and everyone involved in the seizure belongs in jail for the term appropriate under Grand Theft statutes. Though I think there is a case that since they are government officials, the sentences should are trebled.