

Rand Paul introduces bill to reform civil asset forfeiture - lsh123
http://www.washingtonpost.com/news/the-watch/wp/2014/07/25/rand-paul-introduces-bill-to-reform-civil-asset-forfeiture/

======
tzs
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.

~~~
VMG
There are still ways to prosecute those criminals without directly seizing
their property and creating horrible incentives.

~~~
threeseed
There are two sides to every coin.

Allowing criminals to keep the proceeds of crimes also creates horrible
incentives.

~~~
watwut
Cops taking someones property without him being convicted of crime first seem
more dangerous to me.

~~~
spacemanmatt
Indeed, many forfeiture victims never get their property back, nor are charges
ever filed, without which they don't have standing to sue for return of their
property.

It's the new Jim Crow.

~~~
_delirium
Your last line is puzzling to me. Is civil asset forfeiture a set of laws
designed to systematically discriminate against a particular demographic group
for the benefit of the more powerful demographic group? Jim Crow was a set of
laws passed by white southerners to segregate and disenfranchise black
southerners, in order to establish a privileged position for their demographic
group in society. Who are the white and black southerners, respectively, in
your analogy?

~~~
fnordfnordfnord
>Is civil asset forfeiture a set of laws designed to systematically
discriminate against a particular demographic group for the benefit of the
more powerful demographic group?

Probably not designed to have that effect, but it does.

~~~
chenelson
Yeah, Nixon's egalitarian crooking was often 'mistaken' for a Pinnacle-Empty
Quiver, at least from a minority perspective. I guess some call it plausible
deniablilty: "Corporatism done it, I ain't accountable!" For others, it might
be something like Manifest Destiny, or historical inertia.

------
wheaties
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
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)

~~~
jseliger
_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-...](http://marginalrevolution.com/marginalrevolution/2013/06/no-
one-is-innocent.html) . 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.

~~~
nickff
"Three Felonies a Day" is a recent book which addresses this issue, and how
the average adult in the United States commits three crimes which carry at
least the possibility of jail time per day (on average).[1] There are tens of
thousands of these offenses, and it is impossible to know all which may apply
to you; even if a citizen makes an affirmative action to learn, there is no
comprehensive list. Even more troubling is that many of these vague, and hard-
to-find crimes do not require mens rea.

[1]
[http://online.wsj.com/news/articles/SB1000142405274870447150...](http://online.wsj.com/news/articles/SB10001424052748704471504574438900830760842)

~~~
duskwuff
There's reason to believe that book is seriously exaggerating matters. Read
the analysis at:

[http://skeptics.stackexchange.com/q/22530](http://skeptics.stackexchange.com/q/22530)

TL;DR: the examples available in the Amazon excerpts from that book are all
felonies which the "average adult" would not be involved in, certainly not
multiple times a day. (Unless you lead a _very_ eventful life.)

------
Votetocracy
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-
resto...](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)

~~~
polarix
Seems a bit premature to vote on the bill before reading its text, eh?

~~~
leephillips
That's the way it's done in congress for the official vote, so why not?

------
cottonseed
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
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
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
_It looks like that isn 't changing under this reform._

Which would seem to be one of the worse problems with current law, no?

------
fnordfnordfnord
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-f...](http://ij.org/policing-for-profit-the-
abuse-of-civil-asset-forfeiture)

A 2008 report by the DOJ which makes some surprising admissions:
[http://www.cops.usdoj.gov/Publications/e1108-Asset-
Forfeitur...](http://www.cops.usdoj.gov/Publications/e1108-Asset-
Forfeiture.pdf)

------
paul_f
This is terrific news and long overdue.

------
JDDunn9
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)

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

------
ende
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
That's what the judicial system is for.

~~~
NhanH
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
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.

