
Civil Forfeiture and the Supreme Court (2014) - martincmartin
http://www.economist.com/blogs/democracyinamerica/2014/02/civil-liberties-and-supreme-court?foo=bar
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In articles about "innocent until proven guilty" it is popular to say that it
is better to let 100 guilty go free than one innocent be erroneously
convicted. Yet, many are willing to seize assets before that person is proven
guilty in case they try to hide the assets or spend them when the assets are
possibly not theirs.

I would rather let 100 criminals hide ill-gotten gains than let one innocent
person have their assets seized before they can mount a proper defense.

Prosecutors: Freedom means that your job is harder, but fairness and the rule
of law is part of what makes this a great country to live in. We will
appreciate your sacrifice if/when this issue is ever remedied

~~~
Lawtonfogle
>it is popular to say that it is better to let 100 guilty go free than one
innocent be erroneously convicted

It is popular to say, but so often I think people don't actually believe it
once they are taken to task on it. For example, given evidence that there is a
98% chance someone significantly harmed a child, most people would vote
guilty, even though this equates to jailing 2 innocent people to make sure
that 98 guilty do get punished.

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bmelton
I don't know if it's telling that as of this moment, all of the top-level
comments to this thread are currently gray (except for otterly's assertion
that it should be dated).

I think it's worth noting that civil asset forfeiture, while controversial,
isn't necessarily evil in itself, if done with a high bar to seizure. I think
it's fair to say that someone who makes a fortune using illegal means should
have to surrender that fortune.

Where asset forfeiture falls down on this is that FAR too often, no illegal
acts are proven before forfeiture is initiated, and substantive due process
should need to be the hurdle before that happens. This will of course lead to
the unfortunate likelihood that "bad people" will use some of those fortunes
in their legal defenses, but if "innocent until proven guilty" is to be our
standard, and it's a mighty good one IMHO, then so be it. The alternative is
much worse (again, IMHO), which is that those without fortunes, and hence,
without the means of adequate legal representation, are simply unable to
defend themselves at all except through court-appointed lawyers of potentially
questionable effectiveness.

The trick, of course, is that the state has a hurdle before stealing goods,
and they have no incentive to impose such hurdles upon themselves. I don't
know what the fix for that is, short of being really loud and riotous, but
someone else's off-the-cuff remark the other day struck a chord to me (though
not without its own potential pitfalls) -- limit attorneys general and other
positions of that sort to only defense and criminal attorneys with a history
of having defended the rights of citizens.

If we accept that the job (or at least _a_ job) of the government is to defend
the rights of the citizenry, then such an exclusion makes a certain amount of
sense. As it stands, the state, and its agents, have a disproportionally
stacked playing field.

~~~
wfo
I don't think it would be unreasonable to require that every prosecutor have
worked for 2+ years as a public defender. Helps with the shortage of public
defenders as well.

~~~
dragonwriter
> I don't think it would be unreasonable to require that every prosecutor have
> worked for 2+ years as a public defender.

There may be a serious problem with quality of representation if a substantial
portion of the people working as public defenders are doing it to meet a
checkbox on the way to their planned career as public prosecutors.

~~~
ScottBurson
There's a serious problem with quality of representation already. Simply
having more public defenders seems likely to me to help, even if some of them
aren't as emotionally committed to the job as others.

There's also the possibility that someone who starts out just checking a box
will discover that there are more shades of gray in these situations than they
had realized.

~~~
dragonwriter
If you want more public defenders, just fund the public defenders offices
better, so that they can pay more lawyers, and pay each of them better.

No need to compel people who want to be prosecutors act as public defenders.
Just arrange the economic incentives properly.

------
btilly
How on Earth is this possible? If you read
[https://www.law.cornell.edu/wex/forfeiture](https://www.law.cornell.edu/wex/forfeiture)
closely, you'll find an explanation.

 _Although the conviction requires the government to prove guilt "beyond a
reasonable doubt," the forfeiture is subject to a lower burden--preponderance
of the evidence._

This case demonstrates the real-life consequence of this difference in
standards. In this case the government could not establish "beyond a
reasonable doubt" but the accused could not demonstrate "preponderance of the
evidence" for innocence either. So the accused don't go to jail but still lose
their house.

And here we get to the real problem with how civil forfeiture is actually used
today. How do you establish a "preponderance of the evidence" when no specific
crime was ever alleged? It is effectively impossible! The TSA can always
allege "a smell of marijuana" and claim probable cause for the seizure. They
have a direct financial incentive to do so, and you have no way afterwards to
prove that they were lying.

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eevilspock
If we want to have a reasonable discussion about this we need to first dis-
conflate two things:

1\. Is pre-emptive asset seizure justifiable to prevent allegedly ill-gotten
gains from being hidden away prior to judgement?

2\. Do such seizures unfairly prevent the accused from hiring the counsel of
their choice?

My thoughts on #2: If you argue that this will result in an unfair trial and
increased likelihood of a false guilty verdict, then what about people who
couldn't afford to hire their counsel of choice in the first place? Any
argument or system where judgements are biased by wealth is fundamentally not
justice. In other words, my answer to #2 is no. The ability to hire good
counsel should _not_ be dependent upon one's assets. The outcomes of trials
should not be dependent upon which side has more money. Some alternative
systems that would be fairer, in my opinion:

A. All counsel is provided by the state and each side gets assigned counsel
randomly.

B. Each side contributes as much as they want to a pool of funds. Each side
gets to spend half of the pool on the counsel of their choice.

B is the better solution for a free market-based society.

~~~
rnovak
Except that if you had read the article, only $140,000 of the defendants money
was "allegedly ill-gotten", meaning the government seized ALL of their money,
not just the allegedly illegal money.

Your #2 is a non-starter because #1 is flawed.

~~~
eevilspock
> meaning the government seized ALL of their money, not just the allegedly
> illegal money.

Red Herring. I made general statements, not opinions about the specific case
in the article. Please judge the statements on their own. I was pretty careful
in my choice of words, e.g. "to prevent allegedly ill-gotten gains".

> Your #2 is a non-starter because #1 is flawed.

You failed to de-conflate.

~~~
rnovak
Your original comment was a top level comment on the article, and is verbatim:

> If we want to have a reasonable discussion about this

The "this" in that sentence (to any reasonable human) would mean that you were
talking about the subject of the article, the people that got their money
seized, not "in general asset forfeiture".

So no....not a red herring.

If you wanted to be careful, your first statement should read: "if we want to
have a discussion about _asset forfeiture..._ ".

------
otterley
Submitter or mods, can you please add the date to this post? This was
published in Feb 2014.

~~~
martincmartin
Done, thanks for pointing that out.

------
swehner
I don't think the "Supreme Court" is held in high esteem.

And it shouldn't be either.

Keyword #laughingstock

------
pm24601
This is why I don't respect the Supreme Court.

This is why I don't think Obama is a great president.

This is why as a liberal I agree much more than I want to with the
conservatives who argue about big government.

Why does the conservative court members always take the side of government
when going against people like me and you?

Why does the conservative court members always take the side of corporations
when going against people like me and you?

Why respect the Supreme Court when its decisions mostly are against the middle
class?

~~~
Kinnard
Maybe you're a 'libertarian'?

~~~
Frondo
He lamented that the government always sides with the corporations.
Libertarianism doesn't fix that; libertarian policy would be far, far worse
for the middle class than what we have now.

~~~
gortok
Yes, it does. Our current system is based on corporatism (labor unions are not
exempt from this behavior); where those with power and connections help make
the laws that keep them in power and from competition.

In a libertarian society (or even in a Constitutional Republic sought out by
the founders), laws are made as close to the people as possible, with the
Federal government having 14 explicit powers (the power grab by interpeting
the 'necessary and proper' clause broadly would not exist, and the 10th
Amendment wouldn't be ignored), so you'd see Local ordinances, county
ordinaces, and state laws most; and very few federal laws (again, they'd only
need to cover their 14 expressly granted powers).

Corporations (and labor unions, and any other 'special interest') wouldn't
have to just lobby the Federal government, they'd have to lobby all 50 states,
plus any localities; in short, it'd be a monumental proposition (even if we
assume they were capable).

Also, since the Federal Government would be necessarily weaker, there wouldn't
be an incentive to try to lobby them -- no one lobbies the person that has no
power.

Currently, you can lobby 51-60 senators and 271 Congressmen and effectively
rule the country (Remember, the ACA was written in part by the insurance
industry), and in a libertarian society, there'd be no basis for that to ever
happen.

Also, sustained monopolies are a by-product of Government intervention (either
through regulation, or explicitly by making rules against competition, much
like the Railroads). In our lifetime, anyone who has 'had a monopoly' has
sustained it with government help (think of Ma Bell; where utility providers
are considered to have a 'natural monopoly' and as such competition is
purposefully limited or non-existent). In Microsoft's case, nothing happened
and their 'monopoly' was very short lived (1995-2005, Maybe?) because everyone
innovated around them. There were no laws restricting who could get into the
browser business, and Microsoft found themselves out-foxed. They're still
trying to make up lost ground.

Before saying "Libertarian policy would be far, far worse for the middle class
right now", you have to ask yourself if you really understand what a
Constitutional Republic actually calls for.

~~~
Frondo
I'm sorry, but what you're replying with is kind of the standard libertarian
fantasy.

Shrink the reach of the federal government, and we'd be looking at rule by
corporations, i.e. that don't answer to us not only in practice, but by
design. How we know this? Weeelll, just look back a hundred years, when we had
a significantly smaller federal government. Big businesses had far, far more
power than they do now.

Libertarianism surely _sounds_ good. That's part of its enduring appeal. But
for real-life workings? Nah.

For anyone interested, this is a pretty good place to start unraveling the
usual libertarian fare:
[http://world.std.com/~mhuben/libindex.html](http://world.std.com/~mhuben/libindex.html)

~~~
maratd
> Shrink the reach of the federal government, and we'd be looking at rule by
> corporations

Nonsense. The corporations are _given_ free reign and support by the
government. If the government didn't establish favorable regulations, they
would be slowly whittled away by their smaller, nimbler competitors.

Economies of scale aren't a simple slope. They're a bell curve. After you get
to a certain size, any additional growth is detrimental and you can only exist
through artificial means.

Get rid of big government and you get rid of big corporations too!

~~~
Frondo
There's no competitive advantage to _not_ polluting, or we wouldn't ever have
needed an EPA in the first place!

There's such an imbalance of power between employer and employee that there's
no meaningful competitive advantage to a safe workplace; if employees really
were all self-empowered free agents, and not scared and hungry people with
families and children to support, we wouldn't have needed an OSHA in the first
place!

All the regulations the libertarians want to turn back, they all came about in
response to the world working so imperfectly that it had to be changed with
force of law.

Undoing that, on the basis of a theory with absolutely no real-world evidence
of working? That just doesn't make sense.

~~~
maratd
> There's no competitive advantage to not polluting, or we wouldn't ever have
> needed an EPA in the first place!

Why do you need the EPA again? My local government represents my locality. It
can easily sue in civil court for any damage to the environment and use the
resulting funds to make repairs. With the feds stepping in, makes this
scenario much more complicated and difficult. They have jurisdiction.

> There's such an imbalance of power between employer and employee > self-
> empowered free agents

Let me posit that if you have a traditional employer, you are not a "self-
empowered free agent". Ditch your employer. Thank the maker we're slowly
moving toward that eventuality.

> All the regulations the libertarians want to turn back, they all came about
> in response to the world working so imperfectly

That's one possibility. Another is that "special interests" lobbied for those
changes at which point the politician came up with a more pleasant
justification for said regulations, sold them to the ignorant public, and now
they're in place.

Which do you think is more likely?

~~~
Frondo
The EPA's a good example, I think, because it's the big businesses that
continually lobby _against_ it. Where are the big industrial players that sit
back and laugh at how pollution restrictions are benefiting them?

Because it _seems_ like the big businesses always complain about the EPA as an
emblem of government overreach, even though getting rid of it would be good
for them and bad for everyone else, especially the people in the community
suffering from the pollution!

And your answer is, "let them (all the people suffering from the effects of
the pollution) all file lawsuits in state/local courts"?

If that wasn't working out before we had an EPA, why would it start working
out now? And how would it be better/more efficient/an improvement to move from
a condition of "pollution is limited" to "pollution is limited, but only after
people file and win lawsuits"?

I mean, I'm really trying to see how we'd be better off if you took away the
EPA, but wanted to keep pollution restrictions in place by this other, far
more elaborate and far less accessible means. Hey, if really you just don't
want pollution restrictions at all, then let's talk about that, let's ask,
would we be better off without pollution restrictions?

Trying to say "no, the EPA is bad, but what they do is good and let's get to
the same place through a complicated and lengthy process of local lawsuits"?
Again, that don't make sense.

~~~
maratd
> If that wasn't working out before we had an EPA, why would it start working
> out now?

What makes you think it wasn't working before? Those same corporations would
shit a brick if they had to defend themselves from a 1000 lawsuits vs just one
from the EPA. Everybody would have standing instead of just the EPA, because
really everybody is getting fucked. You think they're complaining now? They'll
go bankrupt if you get rid of the federal _protection_ , which was my point.

~~~
Frondo
Ok, so we're agreed that pollution controls are a good idea. We're agreed that
the basic functioning of the EPA is a good one.

But instead of us citizens charging one government agency to do this specific
job, you think it's going to work out better for us people to have to, as
individuals, research and understand the issue enough to file lawsuits?

That a bunch of regular folks, most of whom probably don't have a lot of cash
lying around to file lawsuits, people who just own homes and work somewhere
and whose community is now being polluted.. rather than use the specific tool
of a government enforcer, the burden's on each of them to go file a bunch of
separate lawsuits?

And this outcome is better for _them_ , and will lead to the same pollution
restrictions they could get from the one agency doing its job?

I mean, that's what it sounds like you're saying, but it just still doesn't
make sense.

