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Rand Paul introduces bill to reform civil asset forfeiture

163 points by lsh123 12y ago

JDDunn9 12y ago
Wonder if this was in response to the recent bit on the Daily Show. http://www.hulu.com/watch/664573#i1,p12,d1 http://www.hulu.com/watch/664573#i1,p12,d1
Votetocracy 12y ago
Thought you'd like to know that you can vote on this bill yourself. After you do your vote gets sent to your Reps and Senators, as well as the sponsor and legislators in the committee the bill is currently in. Which looks to be the senate judiciary committee. https://www.votetocracy.com/bills/113/s/2644/a-bill-to-restore-the-integrity-of-the-fifth-amendment-to-the-constitution-of-the-united-states-and-for-other-purposes/overview https://www.votetocracy.com/bills/113/s/2644/a-bill-to-resto...
- xiaoma 12y ago
  This is the first time I've seen the site. I signed up and gave it a try. How does it work? Do representatives see a great number of emails from Votocracy? Is there a way for them to verify the comments are genuine?
  - Votetocracy 12y ago
    Yes, Reps are seeing an increasing number of emails from us alone. So much so that they are consistently calling our office. In terms of verification, currently our verification is on par with anything else they are getting from either individuals submitting letters or any other method. That is, they are verified by having entered their address which is in the reps district. We will soon take on the task of true verification though. Which means, bouncing your registration details against a voter id database.
- polarix 12y ago
  Seems a bit premature to vote on the bill before reading its text, eh?
  - wffurr 12y ago
    Bill text will be available on that site soon: https://www.votetocracy.com/bills/113/s/2644/a-bill-to-restore-the-integrity-of-the-fifth-amendment-to-the-constitution-of-the-united-states-and-for-other-purposes/full-bill-text https://www.votetocracy.com/bills/113/s/2644/a-bill-to-resto...
  - leephillips 12y ago
    That's the way it's done in congress for the official vote, so why not?
  - Votetocracy 12y ago
    The full bill text is usually available through the site. If in this case it is not, just wait a few days, it will get posted. Sometimes it takes a few days for the sponsor to post the actual text when the intro a bill
paul_f 12y ago
This is terrific news and long overdue.
wheaties 12y ago
It's funny how far we've come from what our founders sought to protect us from. Did you know the fourth amendment was written in response to the prevailing asset forfeiture laws of the time period. Yet here we see it having to be spelled out explicitly in law yet again. Good for him. Hope it passes.
- themartorana 12y ago
  This article[1] points to some of the worst, systematic abuses of forfeiture. Most frustrating is that any amount of cash holdings on your person in excess of a hundred dollars or so is often twisted as evidence that you MUST have committed some crime. In fact, forfeiture is often used as bribery - let us keep your stuff and we won't make your life even harder, which even short-time readers of HN know, if the law wants to get after you, it will find something to charge you with. Often, taking away your kids is threatened if you don't let us keep your car. I'm not going to toss myself out there as Rand Paul's biggest supporter, but he gets my absolute support (and my phoning of my representatives urging their support) of this bill. [1] http://www.newyorker.com/magazine/2013/08/12/taken http://www.newyorker.com/magazine/2013/08/12/taken
  - e40 12y ago
    Most frustrating is that any amount of cash holdings on your person in excess of a hundred dollars or so is often twisted as evidence that you MUST have committed some crime. In a day and age when ATMs routinely dispense $300/day this is quite absurd.
  - jseliger 12y ago
    even short-time readers of HN know, if the law wants to get after you, it will find something to charge you with For more, see "No One Is Innocent": http://marginalrevolution.com/marginalrevolution/2013/06/no-one-is-innocent.html http://marginalrevolution.com/marginalrevolution/2013/06/no-... . I think this part is particularly relevant: Remember, under the common law, mens rea, criminal intent, was a standard requirement for criminal prosecution but today that is typically no longer the case especially under federal criminal law. Everyone intuitively knows that you shouldn't hit, kill, or rob someone else, but there are now innumerable nominal "crimes" that are neither obvious nor intuitive.
tzs 12y ago
This significantly changes what must be proved. Under the existing law, if the government's theory of forfeiture is that the property was used to commit or facilitate the commission of a crime, they must show by a preponderance of the evidence that there was a substantial connection between the property and the offense. There is an "innocent owner" defense that protects the interests of innocent owners to the property. For property interests that were in existence at the time of the illegal acts, an innocent owner is one who did not know of the acts giving rise to forfeiture, or who upon learning of those acts did all that could be reasonably expected under the circumstances to terminate that use of the property. For an interest that acquired after the illegal conduct, an innocent owner is someone is a bona fide purchaser who did not know that the property was subject to forfeiture. Paul's bill changes the requirement when the government's theory of forfeiture is that the property was use to commit or facilitate a crime to this, and modifies the innocent owner defense to get rid of the parts of it that are redundant in light of these changes: (3) if the Government’s theory of forfeiture is that the property used to commit or facilitate the commission of a criminal offense, or was involved in the commission of a criminal offense, the Government shall establish, by clear and convincing evidence, that— (A) there was a substantial connection between the property and the offense; and (B) the owner of any interest in the seized property— (i) intentionally used the property in connection with the offense; or (ii) knowingly consented or was willfully blind to the use of the property by another in connection with the offense Note that under the current wording, if you had, say, a boat owned by three people who take turns with it (e.g., one owner runs the boat during the winter fishing crab, one runs the boat during part of the summer doing salmon tendering, and one takes people on whale watching trips), and one of the owners is also using it for smuggling, then the boat could be seized, but the two other owners would keep their interest as innocent owners. The net result would be the government would end up as partial owner of the boat. Under the new language, it looks like the government has to show that all the owners were involved with, consented to, or were "willfully blind" to the smuggling. It does not define "willfully blind". This seems to be a huge loophole. It should not be too hard for criminals to arrange for their major assets they use in their crimes (boats, planes, cars, real estate) to have a minority co-owner not connected to the crime and who has no idea the property is being used for crime and was not "willfully blind" to such use. Or maybe not...I'm reading (3)(B) as saying that all the owners must be shown to meet (i) or (ii), but it may be possible to read it as meaning that at least one owner must meet (i) or (ii). This section needs to be rewritten.
cottonseed 12y ago
I can't say I understand the difference between "a preponderance of evidence" and "clear and convincing evidence". Who judges these terms now? Does the accused get a defense? Appeal? I don't understand why forfeiture isn't one of the natural penalties of a conviction in a criminal trial. I do like changing the financial incentives, however. edit: A number of people point out forfeiture can occur without a conviction or even a crime being charged. This reform doesn't change that. It changes the burden of proof from preponderance of evidence to clear and convincing evidence (and addresses some of the perverse financial incentives). These are both less strict than "beyond a reasonable doubt", which applies in criminal proceedings. (See watwut's link to Burden of Proof below.) What I'm saying is this reform is weak, and it would be better to treat forfeiture like any other criminal penalty.
- watwut 12y ago
  Preponderance of the evidence is balance of probabilities. E.g. if it is 51% likely that you did it, it is assumed you did it. Clear and convincing evidence means that it must be highly and substantially more probable that you are guilty in order to be assumed so. E.g. 51% would not do it. In any case, forfeiture was done to people who were not even charged with anything, much less convinced of a crime. Both are legal definitions. Convenient wiki: http://en.wikipedia.org/wiki/Legal_burden_of_proof http://en.wikipedia.org/wiki/Legal_burden_of_proof
  - cottonseed 12y ago
    Thanks for the explanation and the link! > In any case, forfeiture was done to people who were not even charged with anything, much less convinced of a crime. It looks like that isn't changing under this reform.
    - e40 12y ago
      It looks like that isn't changing under this reform. Which would seem to be one of the worse problems with current law, no?
- srj 12y ago
ende 12y ago
I would like to call for the establishment of a Department of Liberty, with 50% of DHS and other intellifence and law enforcement agencys' funding being diverted into its formation. Its function would be twofold: 1) an army of civil rights defense attourneys to counter the DOJ, DHS, etc. 2) a force of federal agents who have the authority to interefere with any federal, state or local law enforcement activity, but completely lack the ability to touch citizens. Their sole mission would be to detain law enforcement officers suspected of abusing their power, raid illegaly acquired/held state confiscation staches, liberate detained civilians, confiscate/destroy/release government secret records, interfere with unlawful border patrol, and execute on the spot any law enforcement agent caught in the act of violating person's civil liberties. They will watch the watchmen.
- rtpg 12y ago
  That's what the judicial system is for.
  - NhanH 12y ago
    I'm not sure if GP's suggestion is actually viable (the whole "who watches the watchers" problem, and there is no way funding to the new department could match the existing departments - ie at best, it will not be that effective). However, I've always thought that judicial system is a mean to check the legislative branch (rather than executive). The reasons being that judicial system has no mean to enforce/ prevent wrong doing (legislative can cut funding), and they also have no way to proactive prevent any wrong doings from happening (you can't do investigation, and anything that reaches the court necessitates a lawsuit).
    - pyre 12y ago
      The Judicial checks the Executive in that the Executive is tasked with brining people before the Courts. The Courts decide if that person should be punished in accordance with the laws, but they can also rule on the behaviour of law enforcement in accordance with the laws too.
    - ende 12y ago
inzax 12y ago
I would suggest posting this under the HN clone SwintonReport.com...
magamiako 12y ago
The bigger question is how exactly does Rand Paul and his constituents benefit from this? I'd like that question answered before I supported such a bill. Make no mistake, the rights of the poor and disenfranchised (as noted regarding civil forfeiture in another comment on this post) has rarely been a reason for Congress to move, and most of the time when governments move for it they are working against those people. No matter where on the spectrum those people lie. So can anyone come up with a scenario as to why Rand Paul would bother with this?
fnordfnordfnord 12y ago
Some information about civil asset forfeiture for those who are interested: A 2010 report by the Institute for Justice: http://ij.org/policing-for-profit-the-abuse-of-civil-asset-forfeiture http://ij.org/policing-for-profit-the-abuse-of-civil-asset-f... A 2008 report by the DOJ which makes some surprising admissions: http://www.cops.usdoj.gov/Publications/e1108-Asset-Forfeiture.pdf http://www.cops.usdoj.gov/Publications/e1108-Asset-Forfeitur...

163 points by lsh123 12y ago

Wonder if this was in response to the recent bit on the Daily Show. http://www.hulu.com/watch/664573#i1,p12,d1 http://www.hulu.com/watch/664573#i1,p12,d1

Votetocracy 12y ago

Thought you'd like to know that you can vote on this bill yourself. After you do your vote gets sent to your Reps and Senators, as well as the sponsor and legislators in the committee the bill is currently in. Which looks to be the senate judiciary committee. https://www.votetocracy.com/bills/113/s/2644/a-bill-to-restore-the-integrity-of-the-fifth-amendment-to-the-constitution-of-the-united-states-and-for-other-purposes/overview https://www.votetocracy.com/bills/113/s/2644/a-bill-to-resto...

xiaoma 12y ago
This is the first time I've seen the site. I signed up and gave it a try. How does it work? Do representatives see a great number of emails from Votocracy? Is there a way for them to verify the comments are genuine?
- Votetocracy 12y ago
  Yes, Reps are seeing an increasing number of emails from us alone. So much so that they are consistently calling our office. In terms of verification, currently our verification is on par with anything else they are getting from either individuals submitting letters or any other method. That is, they are verified by having entered their address which is in the reps district. We will soon take on the task of true verification though. Which means, bouncing your registration details against a voter id database.
polarix 12y ago
Seems a bit premature to vote on the bill before reading its text, eh?
- wffurr 12y ago
  Bill text will be available on that site soon: https://www.votetocracy.com/bills/113/s/2644/a-bill-to-restore-the-integrity-of-the-fifth-amendment-to-the-constitution-of-the-united-states-and-for-other-purposes/full-bill-text https://www.votetocracy.com/bills/113/s/2644/a-bill-to-resto...
- leephillips 12y ago
  That's the way it's done in congress for the official vote, so why not?
- Votetocracy 12y ago
  The full bill text is usually available through the site. If in this case it is not, just wait a few days, it will get posted. Sometimes it takes a few days for the sponsor to post the actual text when the intro a bill

paul_f 12y ago

This is terrific news and long overdue.

wheaties 12y ago

It's funny how far we've come from what our founders sought to protect us from. Did you know the fourth amendment was written in response to the prevailing asset forfeiture laws of the time period. Yet here we see it having to be spelled out explicitly in law yet again. Good for him. Hope it passes.

themartorana 12y ago
This article[1] points to some of the worst, systematic abuses of forfeiture. Most frustrating is that any amount of cash holdings on your person in excess of a hundred dollars or so is often twisted as evidence that you MUST have committed some crime. In fact, forfeiture is often used as bribery - let us keep your stuff and we won't make your life even harder, which even short-time readers of HN know, if the law wants to get after you, it will find something to charge you with. Often, taking away your kids is threatened if you don't let us keep your car. I'm not going to toss myself out there as Rand Paul's biggest supporter, but he gets my absolute support (and my phoning of my representatives urging their support) of this bill. [1] http://www.newyorker.com/magazine/2013/08/12/taken http://www.newyorker.com/magazine/2013/08/12/taken
- e40 12y ago
  Most frustrating is that any amount of cash holdings on your person in excess of a hundred dollars or so is often twisted as evidence that you MUST have committed some crime. In a day and age when ATMs routinely dispense $300/day this is quite absurd.
- jseliger 12y ago
  even short-time readers of HN know, if the law wants to get after you, it will find something to charge you with For more, see "No One Is Innocent": http://marginalrevolution.com/marginalrevolution/2013/06/no-one-is-innocent.html http://marginalrevolution.com/marginalrevolution/2013/06/no-... . I think this part is particularly relevant: Remember, under the common law, mens rea, criminal intent, was a standard requirement for criminal prosecution but today that is typically no longer the case especially under federal criminal law. Everyone intuitively knows that you shouldn't hit, kill, or rob someone else, but there are now innumerable nominal "crimes" that are neither obvious nor intuitive.

tzs 12y ago

This significantly changes what must be proved. Under the existing law, if the government's theory of forfeiture is that the property was used to commit or facilitate the commission of a crime, they must show by a preponderance of the evidence that there was a substantial connection between the property and the offense. There is an "innocent owner" defense that protects the interests of innocent owners to the property. For property interests that were in existence at the time of the illegal acts, an innocent owner is one who did not know of the acts giving rise to forfeiture, or who upon learning of those acts did all that could be reasonably expected under the circumstances to terminate that use of the property. For an interest that acquired after the illegal conduct, an innocent owner is someone is a bona fide purchaser who did not know that the property was subject to forfeiture. Paul's bill changes the requirement when the government's theory of forfeiture is that the property was use to commit or facilitate a crime to this, and modifies the innocent owner defense to get rid of the parts of it that are redundant in light of these changes: (3) if the Government’s theory of forfeiture is that the property used to commit or facilitate the commission of a criminal offense, or was involved in the commission of a criminal offense, the Government shall establish, by clear and convincing evidence, that— (A) there was a substantial connection between the property and the offense; and (B) the owner of any interest in the seized property— (i) intentionally used the property in connection with the offense; or (ii) knowingly consented or was willfully blind to the use of the property by another in connection with the offense Note that under the current wording, if you had, say, a boat owned by three people who take turns with it (e.g., one owner runs the boat during the winter fishing crab, one runs the boat during part of the summer doing salmon tendering, and one takes people on whale watching trips), and one of the owners is also using it for smuggling, then the boat could be seized, but the two other owners would keep their interest as innocent owners. The net result would be the government would end up as partial owner of the boat. Under the new language, it looks like the government has to show that all the owners were involved with, consented to, or were "willfully blind" to the smuggling. It does not define "willfully blind". This seems to be a huge loophole. It should not be too hard for criminals to arrange for their major assets they use in their crimes (boats, planes, cars, real estate) to have a minority co-owner not connected to the crime and who has no idea the property is being used for crime and was not "willfully blind" to such use. Or maybe not...I'm reading (3)(B) as saying that all the owners must be shown to meet (i) or (ii), but it may be possible to read it as meaning that at least one owner must meet (i) or (ii). This section needs to be rewritten.

cottonseed 12y ago

I can't say I understand the difference between "a preponderance of evidence" and "clear and convincing evidence". Who judges these terms now? Does the accused get a defense? Appeal? I don't understand why forfeiture isn't one of the natural penalties of a conviction in a criminal trial. I do like changing the financial incentives, however. edit: A number of people point out forfeiture can occur without a conviction or even a crime being charged. This reform doesn't change that. It changes the burden of proof from preponderance of evidence to clear and convincing evidence (and addresses some of the perverse financial incentives). These are both less strict than "beyond a reasonable doubt", which applies in criminal proceedings. (See watwut's link to Burden of Proof below.) What I'm saying is this reform is weak, and it would be better to treat forfeiture like any other criminal penalty.

watwut 12y ago
Preponderance of the evidence is balance of probabilities. E.g. if it is 51% likely that you did it, it is assumed you did it. Clear and convincing evidence means that it must be highly and substantially more probable that you are guilty in order to be assumed so. E.g. 51% would not do it. In any case, forfeiture was done to people who were not even charged with anything, much less convinced of a crime. Both are legal definitions. Convenient wiki: http://en.wikipedia.org/wiki/Legal_burden_of_proof http://en.wikipedia.org/wiki/Legal_burden_of_proof
- cottonseed 12y ago
  Thanks for the explanation and the link! > In any case, forfeiture was done to people who were not even charged with anything, much less convinced of a crime. It looks like that isn't changing under this reform.
  - e40 12y ago
    It looks like that isn't changing under this reform. Which would seem to be one of the worse problems with current law, no?
srj 12y ago

ende 12y ago

I would like to call for the establishment of a Department of Liberty, with 50% of DHS and other intellifence and law enforcement agencys' funding being diverted into its formation. Its function would be twofold: 1) an army of civil rights defense attourneys to counter the DOJ, DHS, etc. 2) a force of federal agents who have the authority to interefere with any federal, state or local law enforcement activity, but completely lack the ability to touch citizens. Their sole mission would be to detain law enforcement officers suspected of abusing their power, raid illegaly acquired/held state confiscation staches, liberate detained civilians, confiscate/destroy/release government secret records, interfere with unlawful border patrol, and execute on the spot any law enforcement agent caught in the act of violating person's civil liberties. They will watch the watchmen.

rtpg 12y ago
That's what the judicial system is for.
- NhanH 12y ago
  I'm not sure if GP's suggestion is actually viable (the whole "who watches the watchers" problem, and there is no way funding to the new department could match the existing departments - ie at best, it will not be that effective). However, I've always thought that judicial system is a mean to check the legislative branch (rather than executive). The reasons being that judicial system has no mean to enforce/ prevent wrong doing (legislative can cut funding), and they also have no way to proactive prevent any wrong doings from happening (you can't do investigation, and anything that reaches the court necessitates a lawsuit).
  - pyre 12y ago
    The Judicial checks the Executive in that the Executive is tasked with brining people before the Courts. The Courts decide if that person should be punished in accordance with the laws, but they can also rule on the behaviour of law enforcement in accordance with the laws too.
  - ende 12y ago

inzax 12y ago

I would suggest posting this under the HN clone SwintonReport.com...

magamiako 12y ago

The bigger question is how exactly does Rand Paul and his constituents benefit from this? I'd like that question answered before I supported such a bill. Make no mistake, the rights of the poor and disenfranchised (as noted regarding civil forfeiture in another comment on this post) has rarely been a reason for Congress to move, and most of the time when governments move for it they are working against those people. No matter where on the spectrum those people lie. So can anyone come up with a scenario as to why Rand Paul would bother with this?

fnordfnordfnord 12y ago

Some information about civil asset forfeiture for those who are interested: A 2010 report by the Institute for Justice: http://ij.org/policing-for-profit-the-abuse-of-civil-asset-forfeiture http://ij.org/policing-for-profit-the-abuse-of-civil-asset-f... A 2008 report by the DOJ which makes some surprising admissions: http://www.cops.usdoj.gov/Publications/e1108-Asset-Forfeiture.pdf http://www.cops.usdoj.gov/Publications/e1108-Asset-Forfeitur...