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>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

>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.
      - rayiner 11y ago
        It's the standard civil burden of proof. If I say I own Blackacre and you say you own it, I just have to present enough evidence to get over the 50% mark.
        jbooth 11y ago
        I think the point here is that a civil burden of proof is completely inappropriate when the plaintiff is the state and there's an allegation of criminality.
        dragonwriter 11y ago
        That's not necessarily a bad argument, but the theoretical basis of the criminal burden of proof is that the kind of consequences resulting from criminal conviction are different than mere property (which is routinely at issue in civil cases). So, the principle on which the existing distinction is based really doesn't support it being applied to forfeiture actions. And, while there might be a good argument for changing the principle underlying the distinction, I don't see a clear reason for applying specifically the beyond a reasonable doubt standard to forfeiture (or even a higher standard that would apply in any other civil claim.)
        Spooky23 11y ago
        If you're being sued to turn over The property I would say no problem... but you're not, it's being confiscated
- makomk 11y ago
  Of course, this styling isn't just used in cases where the property was illegally obtained. It's also used in cases where it's not in dispute that the property was legally obtained, and the government simply seeks to take it from the legitimate owner as a penalty for a crime they assert he committed, in order to avoid naming the owner as a defendant even though they know exactly who owned the property they seized.
  - rayiner 11y ago
    Source?
    - wehadfun 11y ago
      https://en.wikipedia.org/wiki/In_rem_jurisdiction https://en.wikipedia.org/wiki/In_rem_jurisdiction
    - makomk 11y ago
      Take a look at United States v. One Ford Coupe Automobile for a start. I'm not convinced you're entirely correct in saying that "the money isn't charged" either. So far as I can tell, the idea that the money is in fact being charged is an important part of the legal justification for asset forfeiture in the absence of an actual criminal conviction, or indeed actual culpability on the part of the owner. From Bennis v. Michigan (which you mentioned in another thread): "On the Government's appeal from the Circuit Court's acquittal of the vessel, it was contended by the owner that the vessel could not be forfeited until he was convicted for the privateering. The Court rejected this contention, explaining: "The thing is here primarily considered as the offender, or rather the offence is attached primarily to the thing." Id., at 14. In another admiralty forfeiture decision 17 years later, Justice Story wrote for the Court that in in rem admiralty proceedings "the acts of the master and crew . . . bind the interest of the owner of the ship, whether he be innocent or guilty; and he impliedly submits to whatever the law denounces as a forfeiture attached to the ship by reason of their unlawful or wanton wrongs." Harmony v. United States, 2 How. 210, 234 (1844) (emphasis added)."
      - 11y ago
- thinkling 11y ago
  I've heard this claim before that the police "charge" the asset rather than the owner; I believe it was in John Oliver's show on civil forfeiture--mentioned in other comments below: https://news.ycombinator.com/item?id=10560200 https://news.ycombinator.com/item?id=10560200
StavrosK 11y ago
Isn't the money innocent until proven guilty?
- electic 11y ago
  No. That is the thing. The money is guilty of being dirty until the money's owner proves otherwise. Usually two things happen: 1. The owner decides it is not worth the hassle. 2. The government usually settles bogus seizes because they don't want case law building up over this subject.
- gnopgnip 11y ago
  You can be the rap but you can't beat the ride. The money is confiscated because the police think it was ill gotten. If you doubt they have enough proof you can bring that up at the trial.
kunaltyagi 11y ago
It was covered very well by John Oliver in https://www.youtube.com/watch?v=3kEpZWGgJks https://www.youtube.com/watch?v=3kEpZWGgJks

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.
    - rayiner 11y ago
      It's the standard civil burden of proof. If I say I own Blackacre and you say you own it, I just have to present enough evidence to get over the 50% mark.
      - jbooth 11y ago
        I think the point here is that a civil burden of proof is completely inappropriate when the plaintiff is the state and there's an allegation of criminality.
        dragonwriter 11y ago
        That's not necessarily a bad argument, but the theoretical basis of the criminal burden of proof is that the kind of consequences resulting from criminal conviction are different than mere property (which is routinely at issue in civil cases). So, the principle on which the existing distinction is based really doesn't support it being applied to forfeiture actions. And, while there might be a good argument for changing the principle underlying the distinction, I don't see a clear reason for applying specifically the beyond a reasonable doubt standard to forfeiture (or even a higher standard that would apply in any other civil claim.)
      - Spooky23 11y ago
        If you're being sued to turn over The property I would say no problem... but you're not, it's being confiscated
makomk 11y ago
Of course, this styling isn't just used in cases where the property was illegally obtained. It's also used in cases where it's not in dispute that the property was legally obtained, and the government simply seeks to take it from the legitimate owner as a penalty for a crime they assert he committed, in order to avoid naming the owner as a defendant even though they know exactly who owned the property they seized.
- rayiner 11y ago
  Source?
  - wehadfun 11y ago
    https://en.wikipedia.org/wiki/In_rem_jurisdiction https://en.wikipedia.org/wiki/In_rem_jurisdiction
  - makomk 11y ago
    Take a look at United States v. One Ford Coupe Automobile for a start. I'm not convinced you're entirely correct in saying that "the money isn't charged" either. So far as I can tell, the idea that the money is in fact being charged is an important part of the legal justification for asset forfeiture in the absence of an actual criminal conviction, or indeed actual culpability on the part of the owner. From Bennis v. Michigan (which you mentioned in another thread): "On the Government's appeal from the Circuit Court's acquittal of the vessel, it was contended by the owner that the vessel could not be forfeited until he was convicted for the privateering. The Court rejected this contention, explaining: "The thing is here primarily considered as the offender, or rather the offence is attached primarily to the thing." Id., at 14. In another admiralty forfeiture decision 17 years later, Justice Story wrote for the Court that in in rem admiralty proceedings "the acts of the master and crew . . . bind the interest of the owner of the ship, whether he be innocent or guilty; and he impliedly submits to whatever the law denounces as a forfeiture attached to the ship by reason of their unlawful or wanton wrongs." Harmony v. United States, 2 How. 210, 234 (1844) (emphasis added)."
    - 11y ago
thinkling 11y ago
I've heard this claim before that the police "charge" the asset rather than the owner; I believe it was in John Oliver's show on civil forfeiture--mentioned in other comments below: https://news.ycombinator.com/item?id=10560200 https://news.ycombinator.com/item?id=10560200

StavrosK 11y ago

Isn't the money innocent until proven guilty?

electic 11y ago
No. That is the thing. The money is guilty of being dirty until the money's owner proves otherwise. Usually two things happen: 1. The owner decides it is not worth the hassle. 2. The government usually settles bogus seizes because they don't want case law building up over this subject.
gnopgnip 11y ago
You can be the rap but you can't beat the ride. The money is confiscated because the police think it was ill gotten. If you doubt they have enough proof you can bring that up at the trial.

kunaltyagi 11y ago

It was covered very well by John Oliver in https://www.youtube.com/watch?v=3kEpZWGgJks https://www.youtube.com/watch?v=3kEpZWGgJks