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If I'm reading the article correctly, they didn't abolish the procedure, just Jeff Sessions's attempted expansion of it. Why hasn't the whole thing just been b

If I'm reading the article correctly, they didn't abolish the procedure, just Jeff Sessions's attempted expansion of it. Why hasn't the whole thing just been banned outright? It contorts any notions of fairness and sensibility in our legal system that an item can have charges brought against it, and that there is no due process or other recourse for the owner.

rayiner 9y ago
The problem is that it's got a very solid legal pedigree. One of the first things the founding fathers did is to provide for forfeiture of contraband (in the customs context). It's also incorrect to say that there is no due process or other recourse--the government still bears the burden of proving that the property is the proceeds of a crime: https://www.law.cornell.edu/uscode/text/18/983 https://www.law.cornell.edu/uscode/text/18/983.
- Camillo 9y ago
  The legal pedigree matters if you want to get the law abolished or changed by the Supreme Court. But in theory it is also possible to have representatives vote on new laws, exercising the legislative power in what is its nominal seat.
  - rayiner 9y ago
    Oh I agree. But unfortunately a lot of stuff that’s bad (e.g. how criminal defendants were treated before the 1980s) gets fixed only because it’s also unconstitutional. If you’re a middle class American you’ve probably never had to carry a large amount of cash around because you’ve got a bank account/PayPal. So it doesn’t affect your vote if cops are going around seizing cash from drug dealers and lower class people are getting caught up in the net.
- forapurpose 9y ago
  > the government still bears the burden of proving that the property is the proceeds of a crime Is it possible that's only at the federal level (which of course is what the House's bill addresses)? I've read many articles in credible sources, such as the Washington Post, saying that the owner of the property has to demonstrate they are its rightful owner (or some similar standard). The articles said many abandon their property because the cost of contesting the seizure, including attorney costs, outweighed its value.
- mirimir 9y ago
  That code sounds decent enough. But, based on accounts that I've seen in the media, the reality is horrible. People are told that they don't have standing to contest the forfeiture. Or they lack the resources to even petition, language in that code about representation being provided.
dragonwriter 9y ago
> and that there is no due process or other recourse for the owner. This is simply incorrect as a matter of fact, both known and unknown parties who own or have a cognizable interest other than ownership in the property subject to forfeiture proceedings are due certain process, including notice (direct for known parties, public to address the unknown) and opportunity to participate in proceedings. As usual in a civil case, the government as plaintiff bears the burden of proof for forfeiture, as well.
- lsiebert 9y ago
  That's not the case in every jurisdiction. And even where it is, the burden of proof is usually lower as a civil matter, and there is no right to an attorney.
- hedora 9y ago
  This is why they usually use civil forfeiture against people that cannot afford an attorney -- they do not need to charge anyone with a crime, or provide a public defender. So, for small cases, the cost of defending dwarfs the loss from forfeiture, and there is no legal recourse in practice. For this to be remotely fair, you'd need to eliminate the current widespread abuses by law enforcement. For example, there could be stiff penalties when law enforcement loses the civil case. A minimum of (cost of assets + legal defense fees) * 10 seems reasonable to me -- it would prevent civil forfeiture from being a reliable profit center.
sliverstorm 9y ago
The whole thing may not need to be banned outright, from what I gather it was specifically the enactment of "equitable sharing" in the 70's that constructed the perverse incentives we have today.

rayiner 9y ago

The problem is that it's got a very solid legal pedigree. One of the first things the founding fathers did is to provide for forfeiture of contraband (in the customs context). It's also incorrect to say that there is no due process or other recourse--the government still bears the burden of proving that the property is the proceeds of a crime: https://www.law.cornell.edu/uscode/text/18/983 https://www.law.cornell.edu/uscode/text/18/983.

Camillo 9y ago
The legal pedigree matters if you want to get the law abolished or changed by the Supreme Court. But in theory it is also possible to have representatives vote on new laws, exercising the legislative power in what is its nominal seat.
- rayiner 9y ago
  Oh I agree. But unfortunately a lot of stuff that’s bad (e.g. how criminal defendants were treated before the 1980s) gets fixed only because it’s also unconstitutional. If you’re a middle class American you’ve probably never had to carry a large amount of cash around because you’ve got a bank account/PayPal. So it doesn’t affect your vote if cops are going around seizing cash from drug dealers and lower class people are getting caught up in the net.
forapurpose 9y ago
> the government still bears the burden of proving that the property is the proceeds of a crime Is it possible that's only at the federal level (which of course is what the House's bill addresses)? I've read many articles in credible sources, such as the Washington Post, saying that the owner of the property has to demonstrate they are its rightful owner (or some similar standard). The articles said many abandon their property because the cost of contesting the seizure, including attorney costs, outweighed its value.
mirimir 9y ago
That code sounds decent enough. But, based on accounts that I've seen in the media, the reality is horrible. People are told that they don't have standing to contest the forfeiture. Or they lack the resources to even petition, language in that code about representation being provided.

dragonwriter 9y ago

> and that there is no due process or other recourse for the owner. This is simply incorrect as a matter of fact, both known and unknown parties who own or have a cognizable interest other than ownership in the property subject to forfeiture proceedings are due certain process, including notice (direct for known parties, public to address the unknown) and opportunity to participate in proceedings. As usual in a civil case, the government as plaintiff bears the burden of proof for forfeiture, as well.

lsiebert 9y ago
That's not the case in every jurisdiction. And even where it is, the burden of proof is usually lower as a civil matter, and there is no right to an attorney.
hedora 9y ago
This is why they usually use civil forfeiture against people that cannot afford an attorney -- they do not need to charge anyone with a crime, or provide a public defender. So, for small cases, the cost of defending dwarfs the loss from forfeiture, and there is no legal recourse in practice. For this to be remotely fair, you'd need to eliminate the current widespread abuses by law enforcement. For example, there could be stiff penalties when law enforcement loses the civil case. A minimum of (cost of assets + legal defense fees) * 10 seems reasonable to me -- it would prevent civil forfeiture from being a reliable profit center.

sliverstorm 9y ago

The whole thing may not need to be banned outright, from what I gather it was specifically the enactment of "equitable sharing" in the 70's that constructed the perverse incentives we have today.