5 ms·

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 D

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.
    - diggernet 4y ago
      I don't think I'm missing anything. You want to be able to claim the briefcase as proceeds of a crime, without actually prosecuting a crime. That is unreasonable. If, as you say, "Bob's actions are not in themselves criminal", you've got no justification to take his stuff. You may think it's proceeds of a crime, and you can treat it as evidence of a possible crime. But if you haven't got enough evidence to convict Bob, then you also don't have enough evidence to keep his stuff. Pretending otherwise is a mockery of justice.
    - Floegipoky 4y ago
      I think you are conflating "forfeiture" and "seizure".
    - gwd 4y ago
      > you could bring in a jury and let a prosecutor make the case that Bob's briefcase constitutes the proceeds of crime ... But ... Bob's actions are not in themselves criminal. So you're saying: * You have evidence enough to prove beyond a reasonable doubt that Alice, the owner of the cash, has committed a crime, and that this cash is the result of that crime * Bob himself hasn't done any crimes at all. We can't prosecute Alice because she's in Mexico; and we can't prosecute Bob, because he hasn't done anything wrong. Well then, seize the cash, and let Alice come for it. If Bob claims it's his and applies for a writ, show the evidence to the judge that Bob isn't actually the owner. If Alice applies for the writ, present your case against her. If she doesn't come for it after a year, treat it as abandoned property. Everybody gets due process. If you don't have enough evidence to prove that Bob isn't the owner, you don't have enough evidence to convict Alice of a crime, and therefore it's a violation of human rights to take her money.
- Dylan16807 4y ago
  > 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? Obvious to who? If it's so obvious then charge Bob. If it's not then no confiscation. Why do we want some weird half conviction? And if do you want that then do a plea deal.
- gwd 4y ago
  > 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"; No, those people are absolutely not reasonable! Those people want a magic world where we have crystal balls that tell us exactly who's innocent and guilty. That would certainly be nice, but that's not the world we live in. It's frustrating when the guilty go free because of the rules we have in place to protect the innocent; but those rules didn't come out of nowhere. They are the result of the hard-won experience of thousands of innocent people being punished. If you remove them then innocent people will be punished again.
- Sohcahtoa82 4y ago
  > 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? Absolutely-fucking-not. Law enforcement should never be able to seize property without the charging of a crime when they know who owns the property.

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.
  - diggernet 4y ago
    I don't think I'm missing anything. You want to be able to claim the briefcase as proceeds of a crime, without actually prosecuting a crime. That is unreasonable. If, as you say, "Bob's actions are not in themselves criminal", you've got no justification to take his stuff. You may think it's proceeds of a crime, and you can treat it as evidence of a possible crime. But if you haven't got enough evidence to convict Bob, then you also don't have enough evidence to keep his stuff. Pretending otherwise is a mockery of justice.
  - Floegipoky 4y ago
    I think you are conflating "forfeiture" and "seizure".
  - gwd 4y ago
    > you could bring in a jury and let a prosecutor make the case that Bob's briefcase constitutes the proceeds of crime ... But ... Bob's actions are not in themselves criminal. So you're saying: * You have evidence enough to prove beyond a reasonable doubt that Alice, the owner of the cash, has committed a crime, and that this cash is the result of that crime * Bob himself hasn't done any crimes at all. We can't prosecute Alice because she's in Mexico; and we can't prosecute Bob, because he hasn't done anything wrong. Well then, seize the cash, and let Alice come for it. If Bob claims it's his and applies for a writ, show the evidence to the judge that Bob isn't actually the owner. If Alice applies for the writ, present your case against her. If she doesn't come for it after a year, treat it as abandoned property. Everybody gets due process. If you don't have enough evidence to prove that Bob isn't the owner, you don't have enough evidence to convict Alice of a crime, and therefore it's a violation of human rights to take her money.
Dylan16807 4y ago
> 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? Obvious to who? If it's so obvious then charge Bob. If it's not then no confiscation. Why do we want some weird half conviction? And if do you want that then do a plea deal.
gwd 4y ago
> 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"; No, those people are absolutely not reasonable! Those people want a magic world where we have crystal balls that tell us exactly who's innocent and guilty. That would certainly be nice, but that's not the world we live in. It's frustrating when the guilty go free because of the rules we have in place to protect the innocent; but those rules didn't come out of nowhere. They are the result of the hard-won experience of thousands of innocent people being punished. If you remove them then innocent people will be punished again.
Sohcahtoa82 4y ago
> 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? Absolutely-fucking-not. Law enforcement should never be able to seize property without the charging of a crime when they know who owns the property.