6 ms·

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".
- NovemberWhiskey 4y ago
  The thing about civil forfeiture is it's not about contraband; the property is usually perfectly legal in itself, however, there is an alleged criminal nexus. The situations it's intended to address are things like this: Bob meets regularly with known members of Mexican drug cartels, but doesn't actually seem to be involved with the illegal sale of drugs. Bob files his taxes every year and makes a modest income. However, every day, Bob drives over the border at El Paso in his car with a million dollars of cash in a briefcase. If the DEA stops Bob, he asserts that the cash is his. Since it's not obvious that Bob has actually committed a crime, shouldn't there be some mechanism to allow the obvious profits of crime to be confiscated without having to convict Bob? A lot of reasonable people think the answer to that is "yes"; but it is apparently hard to create a mechanism that doesn't also result in the police confiscating your car because your friend that's riding with you has $500 of cash, a bunch of empty baggies in his pocket, and prior drug dealing conviction.
  - diggernet 4y ago
    No, there shouldn't be, because if you haven't convicted Bob of a crime it's not "obvious profits of crime". It could be perfectly legitimate and you haven't proved otherwise. You can certainly seize the cash as possible evidence of a crime, but if you don't charge Bob then you've got no justification to penalize him by keeping the cash, and it should go back to him.
    - NovemberWhiskey 4y ago
      You're missing the point here. I was attempting to describe a situation where, if the law permitted it, you could bring in a jury and let a prosecutor make the case that Bob's briefcase constitutes the proceeds of crime, and have a solid chance of success at the "beyond a reasonable doubt" standard of proof which is required for a conviction. But you can't prosecute a briefcase full of cash; and Bob's actions are not in themselves criminal. Without some kind of asset forfeiture system, nothing can be done. There's a pretty reasonable public policy argument that this is not an acceptable situation.

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".

NovemberWhiskey 4y ago
The thing about civil forfeiture is it's not about contraband; the property is usually perfectly legal in itself, however, there is an alleged criminal nexus. The situations it's intended to address are things like this: Bob meets regularly with known members of Mexican drug cartels, but doesn't actually seem to be involved with the illegal sale of drugs. Bob files his taxes every year and makes a modest income. However, every day, Bob drives over the border at El Paso in his car with a million dollars of cash in a briefcase. If the DEA stops Bob, he asserts that the cash is his. Since it's not obvious that Bob has actually committed a crime, shouldn't there be some mechanism to allow the obvious profits of crime to be confiscated without having to convict Bob? A lot of reasonable people think the answer to that is "yes"; but it is apparently hard to create a mechanism that doesn't also result in the police confiscating your car because your friend that's riding with you has $500 of cash, a bunch of empty baggies in his pocket, and prior drug dealing conviction.
- diggernet 4y ago
  No, there shouldn't be, because if you haven't convicted Bob of a crime it's not "obvious profits of crime". It could be perfectly legitimate and you haven't proved otherwise. You can certainly seize the cash as possible evidence of a crime, but if you don't charge Bob then you've got no justification to penalize him by keeping the cash, and it should go back to him.
  - NovemberWhiskey 4y ago
    You're missing the point here. I was attempting to describe a situation where, if the law permitted it, you could bring in a jury and let a prosecutor make the case that Bob's briefcase constitutes the proceeds of crime, and have a solid chance of success at the "beyond a reasonable doubt" standard of proof which is required for a conviction. But you can't prosecute a briefcase full of cash; and Bob's actions are not in themselves criminal. Without some kind of asset forfeiture system, nothing can be done. There's a pretty reasonable public policy argument that this is not an acceptable situation.