4 ms·

> It was almost impossible to prosecute a ship owner who lived across the ocean in Europe, so simply seizing a ship and its smuggled goods was a viable alternat

by gwd 4y ago

> It was almost impossible to prosecute a ship owner who lived across the ocean in Europe, so simply seizing a ship and its smuggled goods was a viable alternative. Such seizures should have the same procedural limitations as arrest of an individual does. Individual procedural limitations: - Police can arrest you and throw you in jail if they have reason to suspect you committed a crime. - Within a certain number of days of being thrown in jail, they have to either produce concrete charges against you, or let you go - While the trial is going on, you can apply for bail to get your freedom. - You can't finally be thrown in prison until you've been convicted by a jury of peers. You could apply parallel standards in this situation: - Police / coast guard could seize a ship if they have reason to believe it's smuggled goods - Within a certain number of days, they have to either produce concrete charges against the owner, or let them have your stuff back. - While the trial is going on, the owner should be able to apply for "bail" to get their stuff back. A judge can determine if it's worth the risk or not, just as they do for prison cases - The stuff can't be finally taken away until the owner has been convicted by a jury of peers. Adding in something like, "All seized goods are distributed to the poor" or something rather than "All seized goods go to the department which seized them" would go a long way towards ending this sort of abuse.

NovemberWhiskey 4y ago
This doesn't seem to be responsive to the point made by the GP: if the owner is in another country, perhaps one that doesn't have extradition to the U.S., then there's not going to be a trial. The U.S. doesn't have in absentia trials except in extraordinary circumstances like a defendant fleeing the country mid-trial.
- gwd 4y ago
  Looking briefly through the "habeas corpus" stuff, it looks like the way it technically works is this: - Police arrest you - You can request a Writ of Habeas Corpus - The judge then issues the Writ - The police either have to accuse you of a crime or let you go. You could do the same thing wrt the stolen goods: - Police sieze contraband - Owner requests Writ of Habeas Stuffus - etc In the case of an owner in another country and is pretty sure they'll get arrested if they show up to claim their stuff, then they'll choose to leave the stuff where it is rather than apply for a writ. After a year, the police could consider it forfeit by default.
  - NovemberWhiskey 4y ago
    In rem jurisdiction over property is the exact basis of civil forfeiture - this isn't a solution, it's the problem.
    - gwd 4y ago
      Unfortunately I can't understand what you're saying (perhaps beacuse I'm missing the appropriate background). Can you please explain what you mean?
      - NovemberWhiskey 4y ago
        Where courts make a "thing" rather than a "person" the subject of a case, this is called "in rem" (which is Latin for "against a thing"). The legal theory which underlies civil forfeiture is "in rem jurisdiction" where it's not the owner, but rather the property, which is the defendant in the case. If the case is at a Federal level, then it will be something like "United States of America vs. $50,000 in United States currency". The standard of proof is not at the criminal standard ("beyond a reasonable doubt") but instead the civil standard ("preponderance of evidence").
        gwd 4y ago
        Right, so the sibling reply was correct. The person I was replying to said that the "problem" they were trying to solve when they invented the practice in the 1800's was things like seizing smuggled goods off a ship, where the owner is overseas and you don't have an extradition treaty with them. So, seize the goods in anticipation of convicting the owner. Make a law that says the owner can apply for a writ, and a case must be made. If the owner doesn't show up, then the goods are abandoned property. That allows the case described to be prosecuted, while not opening up the insane abuses we've all heard so much about.
    - diggernet 4y ago
      I think gwd's point is, the "thing" wouldn't be the subject of a case. It would be siezed as evidence of a crime, with the subject of the case being the John Doe owner. If the owner is identified/comes forward, they must be charged with the crime. If not convicted, their property is returned. If no owner is found after some period (say, a year or more), the "thing" is considered abandoned property. Basically, eliminating "in rem".

by gwd 4y ago

NovemberWhiskey 4y ago

This doesn't seem to be responsive to the point made by the GP: if the owner is in another country, perhaps one that doesn't have extradition to the U.S., then there's not going to be a trial. The U.S. doesn't have in absentia trials except in extraordinary circumstances like a defendant fleeing the country mid-trial.

gwd 4y ago
Looking briefly through the "habeas corpus" stuff, it looks like the way it technically works is this: - Police arrest you - You can request a Writ of Habeas Corpus - The judge then issues the Writ - The police either have to accuse you of a crime or let you go. You could do the same thing wrt the stolen goods: - Police sieze contraband - Owner requests Writ of Habeas Stuffus - etc In the case of an owner in another country and is pretty sure they'll get arrested if they show up to claim their stuff, then they'll choose to leave the stuff where it is rather than apply for a writ. After a year, the police could consider it forfeit by default.
- NovemberWhiskey 4y ago
  In rem jurisdiction over property is the exact basis of civil forfeiture - this isn't a solution, it's the problem.
  - gwd 4y ago
    Unfortunately I can't understand what you're saying (perhaps beacuse I'm missing the appropriate background). Can you please explain what you mean?
    - NovemberWhiskey 4y ago
      Where courts make a "thing" rather than a "person" the subject of a case, this is called "in rem" (which is Latin for "against a thing"). The legal theory which underlies civil forfeiture is "in rem jurisdiction" where it's not the owner, but rather the property, which is the defendant in the case. If the case is at a Federal level, then it will be something like "United States of America vs. $50,000 in United States currency". The standard of proof is not at the criminal standard ("beyond a reasonable doubt") but instead the civil standard ("preponderance of evidence").
      - gwd 4y ago
        Right, so the sibling reply was correct. The person I was replying to said that the "problem" they were trying to solve when they invented the practice in the 1800's was things like seizing smuggled goods off a ship, where the owner is overseas and you don't have an extradition treaty with them. So, seize the goods in anticipation of convicting the owner. Make a law that says the owner can apply for a writ, and a case must be made. If the owner doesn't show up, then the goods are abandoned property. That allows the case described to be prosecuted, while not opening up the insane abuses we've all heard so much about.
  - diggernet 4y ago
    I think gwd's point is, the "thing" wouldn't be the subject of a case. It would be siezed as evidence of a crime, with the subject of the case being the John Doe owner. If the owner is identified/comes forward, they must be charged with the crime. If not convicted, their property is returned. If no owner is found after some period (say, a year or more), the "thing" is considered abandoned property. Basically, eliminating "in rem".