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Although I am not a lawyer, One weakness I see in this analysis is that it is taking as precedent things enforced mainly extra-territorially (smuggling) and usi

Although I am not a lawyer, One weakness I see in this analysis is that it is taking as precedent things enforced mainly extra-territorially (smuggling) and using it to justify actions that have been mainly enforced domestically (civil forfeiture). I personally would have a lot less problem with civil forfeiture if it were mainly something enforced at the borders. If someone attempts to smuggle in a bunch of cocaine at the US-Canada border and gets their car and the cocaine confiscated, is not as troubling. I do have a bunch of issues if someone is driving along in the US, gets pulled over and then gets his car confiscated. The Constitution and Jurisprudence has made a distinction between actions performed extra-territorially and domestically. This analysis ignores that distinction and as such IMO does not establish that civil forfeiture as practiced currently is constitutional. EDIT: One example of this distinction is piracy. When America was first founded, pirates captured on the high seas were often summarily executed. However, the practice could not be used to justify the police doing that domestically.

RHSeeger 4y ago
> If someone attempts to smuggle in a bunch of cocaine at the US-Canada border and gets their car and the cocaine confiscated, is not as troubling. But in this case, the person could be arrested and it should be (is?) possible to confiscate the possessions they have on them. But the confiscation should be "against the person", not the object. And if the judicial system can't prove the person was guilty of a crime, and that those possessions were involved, then they should need to return them. The way things currently work, that same person could be coming across the border with $20,000 in cash on them. The police see it and decide it _must_ be crime related because "who would carry that kind of money on them for any other reason" and confiscate the money... all without actually charging the person with a crime. And that's bad. And the fact that it's a border issue is irrelevant. At most, the border officers should be saying "we're not comfortable with you bringing that much money over the border in cash, you are denied entry", and sending them back along their way.
- ravel-bar-foo 4y ago
  Importing cash has other limitations, so your $20,000 example is a poor one. Specifically, imports of financial instruments of $10,000 or more must be declared, following anti-money-laundering laws.
  - FireBeyond 4y ago
    Fun story, you can declare that import of cash. And police can still suspect it of being of criminal origin or purpose.
whatshisface 4y ago
I think you've hit on the most significant objection to this analysis. The paper even distinguishes between cases decided by the admiralty and "at law," then discards that distinction to push the idea that forfeiture inside of clearly demarcated judicial jurisdictions has precedent.
AdrianB1 4y ago
The smuggler with the car confiscated is a criminal case, not civil forfeiture. The problem is the civil forfeiture with no case.
mellavora 4y ago
> mainly something enforced at the borders Specifically, federal regulations give U.S. Customs and Border Protection (CBP) authority to operate within 100 miles of any U.S. "external boundary." Roughly two-thirds of the United States' population lives within the 100-mile zone—that is, within 100 miles of a U.S. land or coastal border. That's about 200 million people. Connecticut, Delaware, Florida, Hawaii, Maine, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island and Vermont lie entirely or almost entirely within this area. Nine of the ten largest U.S. metropolitan areas, as determined by the 2010 Census, also fall within this zone: New York City, Los Angeles, Chicago, Houston, Philadelphia, Phoenix, San Antonio, San Diego and San Jose. https://www.aclu.org/other/constitution-100-mile-border-zone https://www.aclu.org/other/constitution-100-mile-border-zone
chrismcb 4y ago
There is a huge difference between confiscating a bunch of cocaine and confiscating a car. But I do agree that crossing a border is different than not crossing a border (and should be different than simplyb being within 90 miles of the border)

RHSeeger 4y ago

> If someone attempts to smuggle in a bunch of cocaine at the US-Canada border and gets their car and the cocaine confiscated, is not as troubling. But in this case, the person could be arrested and it should be (is?) possible to confiscate the possessions they have on them. But the confiscation should be "against the person", not the object. And if the judicial system can't prove the person was guilty of a crime, and that those possessions were involved, then they should need to return them. The way things currently work, that same person could be coming across the border with $20,000 in cash on them. The police see it and decide it _must_ be crime related because "who would carry that kind of money on them for any other reason" and confiscate the money... all without actually charging the person with a crime. And that's bad. And the fact that it's a border issue is irrelevant. At most, the border officers should be saying "we're not comfortable with you bringing that much money over the border in cash, you are denied entry", and sending them back along their way.

ravel-bar-foo 4y ago
Importing cash has other limitations, so your $20,000 example is a poor one. Specifically, imports of financial instruments of $10,000 or more must be declared, following anti-money-laundering laws.
- FireBeyond 4y ago
  Fun story, you can declare that import of cash. And police can still suspect it of being of criminal origin or purpose.

whatshisface 4y ago

I think you've hit on the most significant objection to this analysis. The paper even distinguishes between cases decided by the admiralty and "at law," then discards that distinction to push the idea that forfeiture inside of clearly demarcated judicial jurisdictions has precedent.

AdrianB1 4y ago

The smuggler with the car confiscated is a criminal case, not civil forfeiture. The problem is the civil forfeiture with no case.

mellavora 4y ago

> mainly something enforced at the borders Specifically, federal regulations give U.S. Customs and Border Protection (CBP) authority to operate within 100 miles of any U.S. "external boundary." Roughly two-thirds of the United States' population lives within the 100-mile zone—that is, within 100 miles of a U.S. land or coastal border. That's about 200 million people. Connecticut, Delaware, Florida, Hawaii, Maine, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island and Vermont lie entirely or almost entirely within this area. Nine of the ten largest U.S. metropolitan areas, as determined by the 2010 Census, also fall within this zone: New York City, Los Angeles, Chicago, Houston, Philadelphia, Phoenix, San Antonio, San Diego and San Jose. https://www.aclu.org/other/constitution-100-mile-border-zone https://www.aclu.org/other/constitution-100-mile-border-zone

chrismcb 4y ago

There is a huge difference between confiscating a bunch of cocaine and confiscating a car. But I do agree that crossing a border is different than not crossing a border (and should be different than simplyb being within 90 miles of the border)