For a small amount of money, it is not worth it to some people to invest the time and money to sue the state to get the money back. For those that can afford a lawyer and a lawsuit, there is (Constitutional) due process.
The remedy lies with the legislatures to add a criminal element, to reverse the burden of proof, and to add an interest penalty to losing agencies.
As for the article, it is a novel idea. I would think that the amount and type of official corruption would be a better indicator of a state in decline.
It is worse than that. The money is what is charged, not the person. So the money has to prove itself innocent, which is pretty much impossible. If you hire a fancy lawyer, you might be able to fight on the money's behalf.
It seems so weird that had one read it in a fictional story, it would've broken one's suspension of disbelief.
I'm not convinced you're entirely correct in saying that "the money isn't charged" either. So far as I can tell, the idea that the money is in fact being charged is an important part of the legal justification for asset forfeiture in the absence of an actual criminal conviction, or indeed actual culpability on the part of the owner. From Bennis v. Michigan (which you mentioned in another thread):
"On the Government's appeal from the Circuit Court's acquittal of the vessel, it was contended by the owner that the vessel could not be forfeited until he was convicted for the privateering. The Court rejected this contention, explaining: "The thing is here primarily considered as the offender, or rather the offence is attached primarily to the thing." Id., at 14. In another admiralty forfeiture decision 17 years later, Justice Story wrote for the Court that in in rem admiralty proceedings "the acts of the master and crew . . . bind the interest of the owner of the ship, whether he be innocent or guilty; and he impliedly submits to whatever the law denounces as a forfeiture attached to the ship by reason of their unlawful or wanton wrongs." Harmony v. United States, 2 How. 210, 234 (1844) (emphasis added)."
baader-meinhoff or just serendipity, thanks. :)
What I think causes confusion is the "innocent owner defense" where the burden is on the owner to prove that, notwithstanding that the property may be subject to forfeiture because it is illegal proceeds, the owner came by the property legitimately.
It's hard to convict you of a crime for driving around with a envelope stuffed with a lot of cash. But's it's easy to demonstrate reasons why the cash may be used for nefarious purposes.
Preponderance of the evidence is the standard burden of proof for civil cases, whatever actors are involved -- the side the wins is the side that proves that its position is most likely to be correct.
The higher (beyond a reasonable doubt) burden of proof in criminal cases exists as a safeguard because of the greater consequences to liberty of a criminal conviction.
Its the same standard used when pretty much anyone wants to use the legal system to take your money or other property via a lawsuit, so I don't think its that outrageous that it is used for civil forfeiture cases.
If we're talking about the police alleging that you have money because of criminal acts, we should switch to the criminal standard.
So, the principle on which the existing distinction is based really doesn't support it being applied to forfeiture actions.
And, while there might be a good argument for changing the principle underlying the distinction, I don't see a clear reason for applying specifically the beyond a reasonable doubt standard to forfeiture (or even a higher standard that would apply in any other civil claim.)
1. The owner decides it is not worth the hassle.
2. The government usually settles bogus seizes because they don't want case law building up over this subject.
I repeat this statistic a lot, but the solved murder rate has fallen from ~90% in the 60s to ~60% in recent years. You'd think with all our new forensic technology and lower overall murder rates it would be opposite.
I am more a fan of the whole, increase in division between community and its police leading to lack of informants among other things, idea.
The whole history of in rem actions is bonkers, as cases have titles like https://en.wikipedia.org/wiki/United_States_v._Article_Consi...
A lot of decisions that seem "outrageously stupid" make more sense if you think of the Supreme Court as an umpire. The democratically-elected legislatures are supposed to make good decisions. The unelected Supreme Court should only check them if they do something egregiously against the rules. The Court should let the "game play on" if there's not a very good reason to say that a 200+ year old document trumps a state legislature's contemporary decisions.
You will of course come up with many arguments, virtually all of which I'll agree with, that asset forfeiture is "unreasonable". The problem is that other people disagree with you, and, specifically and distinctively with this particular item in the bill of rights, the court is supposed to defer to the legislature as much as it can.
It seems pretty cut and dried to me that the 4th amendment supersedes any law passed in direct opposition, just like the 1st or 2nd would. This isn't a case where the courts would be making multiple logical leaps to invalidate a law they disagree with, you can describe it in 4 words "seizure without a trial", then look at the 4th amendemnt.
Having said that, the history of 4A law suggests that the word "reasonable" in 4A connotes a mandate for unusual deference to the legislature --- and SCOTUS already tends strongly towards deference.
But the only way they will do that again is if there is public pressure. So even if a lot of people disagree with me, the proper course of action is not to shut up and take my medicine. The proper course is to keep raising hell about it.
There was a big expansion of this in 1984 pushed by Biden that more or less gave us the modern form of asset forfeiture.
And we're going to have to solve this problem at the Federal level. Many states have laws preventing police from keeping the money they seize. But the DEA is happy to take credit for the seizure, keep n% of the money, and hand the rest back to the department that did the seizing.
This whole issue would go away if seized assets were required to either be returned to the rightful owner or destroyed. If we allow police to keep what they seize, we should call it what it really is...pillaging.
In anti-trust cases damages are tripled as a deterrent, why not institute the same penalty for police? If someone wins their money back from the police they get triple what the police tried to seize.
You might say, good, that means voters will try to ensure future police don't do this shit. Which is a nice theory, but probably doesn't work out in practice.
In practice, you have small towns that can be bankrupted by a good-size suit, which is probably not a good outcome. You also have large cities that have room to minimax what they can get away with, and now all you've done is possibly deterred really egregious cases.
It gets substantially more complicated with the intersection of feds and state agencies, where (depending on the state) police are good at gaming where the money goes depending on how and what is charged by whom. (There are complicated revenue sharing arrangements between, for instance, the DEA and local cops for forfeitures.
If your hypothetical bank robber needs to be deprived of the money (and I don't think I agree, but that's a different discussion), the proper way to align incentives is to ensure the police do not see any of the money. Period. Give it back to the bank, put it in the state general fund, give it to a random orphan, burn it, whatever. But as long as the police can by shiny toys with it (conference attendance, margarita machines and outright theft have all happened), they have an incentive to push it as hard as they can.
 Giving the funds to the state still has incentive problems, but they are muted. I don't know that there's any empirical evidence if it is sufficiently muted to align police behavior with what most non-cops consider reasonable.
It's an excellent outcome. Particularly in small towns, the police strongly reflect the attitude of the people.
The problem with the direct seizures going to the cops is that the local government underfunds the overtime budget -- that affects the policeman's pocket and is a powerful motivator.
I think that to avoid bad incentives, No part of government should receive any benefit from the seizure?
To pay for the opportunity cost of the person not having access to the money for the period of time.
Also, forbidding the police from keeping the items.
No, it doesn't. An accused bank robber could be acquitted of the crime of robbery and still found liable for the tort of conversion of property, and have to pay the money back to the bank.
(Additionally, either criminal or civil forfeiture may be available against the specific money involved, only in a criminal forfeiture case would the acquittal of the defendant on the criminal charges be dispositive. Generally, as I understand it, criminal forfeiture applies to a broader and more distant class of property relations to the crime, and therefore isn't used for the types of property to which civil forfeiture could be applied.)
The police and everyone involved in the seizure belongs in jail for the term appropriate under Grand Theft statutes.
Though I think there is a case that since they are government officials, the sentences should are trebled.
As long as the victimized populaces doesn't vote for the politicians in power or is otherwise disenfranchised and poor, it's a great plan /s.
Also civil forfeiture usually ruffles conservatives as government overreach. Basically, toughness on crime came from many odd bedfellows.
For example, California popularized three strikes, a very liberal state.