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No one would argue illegally obtained money cannot be confiscated. A bank robber cannot keep his stolen money, or someone selling stolen goods, or a drug dealer. The trouble with civil asset forfeiture, as its properly known, is that the burden of proof has been shifted to the accused. So, instead of the state having to prove your money is illegally obtained, or that any crime was committed, you have to prove there was not.

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.

>The trouble with civil asset forfeiture, as its properly known, is that the burden of proof has been shifted to the accused. So, instead of the state having to prove your money is illegally obtained, or that any crime was committed, you have to prove there was not.

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.

The money isn't "charged." The case is just styled as In re $35.00 of US Currency because the case is about the ownership status of the property, not about any specific person. The money doesn't have to "prove itself innocent." The legitimate owner just needs to rebut the government's argument that it was illegally obtained.

Of course, this styling isn't just used in cases where the property was illegally obtained. It's also used in cases where it's not in dispute that the property was legally obtained, and the government simply seeks to take it from the legitimate owner as a penalty for a crime they assert he committed, in order to avoid naming the owner as a defendant even though they know exactly who owned the property they seized.


Take a look at United States v. One Ford Coupe Automobile for a start.

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)."

That quote from Justice Story is precisely why such proceedings are not a "penalty for a crime [the Government] assert[s] [someone] committed." The purpose of such proceedings is to confiscate property used for illegal purposes (so it cannot continue to be used for illegal purposes), not to punish the owners of the property. Hence why in that case they confiscated the ship "whether [the owner] be innocent or guilty."

So, at this exact moment, I had someone asking me what the difference between brackets and parenthesis was, legally, and I was able to hand them the laptop, and say "that".

baader-meinhoff or just serendipity, thanks. :)

But shouldn't the burden of proof rest on the government?

It should be, and it is (at least under federal law): https://www.law.cornell.edu/uscode/text/18/983 ("the burden of proof is on the Government to establish, by a preponderance of the evidence, that the property is subject to forfeiture").

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.

That's a low standard for the government to meet. "Preponderance of the evidence" means that the government doesn't need to prove the property is subject to forfeiture, just show that 50% of the evidence indicates that it could be. (guy in car from out of state at night, guy fits the profile of something, road is a "drug corridor", guy had alot of cash, guy was speeding)

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.

> That's a low standard for the government to meet. "Preponderance of the evidence" means that the government doesn't need to prove the property is subject to forfeiture, just show that 50% of the evidence indicates that it could be.

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 were talking about a contract dispute where one of the parties is a city, state or the federal government, you're totally right.

If we're talking about the police alleging that you have money because of criminal acts, we should switch to the criminal standard.

It's the standard civil burden of proof. If I say I own Blackacre and you say you own it, I just have to present enough evidence to get over the 50% mark.

I think the point here is that a civil burden of proof is completely inappropriate when the plaintiff is the state and there's an allegation of criminality.

That's not necessarily a bad argument, but the theoretical basis of the criminal burden of proof is that the kind of consequences resulting from criminal conviction are different than mere property (which is routinely at issue in civil cases).

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.)

If you're being sued to turn over The property I would say no problem... but you're not, it's being confiscated

I've heard this claim before that the police "charge" the asset rather than the owner; I believe it was in John Oliver's show on civil forfeiture--mentioned in other comments below:


Isn't the money innocent until proven guilty?

No. That is the thing. The money is guilty of being dirty until the money's owner proves otherwise. Usually two things happen:

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.

You can be the rap but you can't beat the ride. The money is confiscated because the police think it was ill gotten. If you doubt they have enough proof you can bring that up at the trial.

It was covered very well by John Oliver in https://www.youtube.com/watch?v=3kEpZWGgJks

I think another big negative here is just the fact that it shifts police org's focus towards crimes where they can "fund" themselves.

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.

That 90% figure isn't reliable given the tendency to force confessions out of "known troublemakers" that was far more rampant in the 60s.

Maybe, but I still doubt that equates to a 30% drop.

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.

There's lots of ways to read the numbers. Total murders is about the same as the high in the 60s, ~14k, but instead of 200 million people, we have well over 300 million[1]. That's over a 33% drop in per-capita murders.

1: http://www.disastercenter.com/crime/uscrime.htm

But what set of idiot justices decided that the police can stop you, see you have $10k in your trunk, and then take it even though you tell them it is from your savings and you're on the way to buy a car?

The US Supreme Court, on a number of occasions. The case law is just full of outrageous stupidity, such as https://en.wikipedia.org/wiki/Bennis_v._Michigan in the USSC ruled that a woman's car could be seized due to her husband's offence that was outside her control.

The whole history of in rem actions is bonkers, as cases have titles like https://en.wikipedia.org/wiki/United_States_v._Article_Consi...

You have to take decisions like that in context. That forfeiture arose under Michigan law. The Supreme Court wasn't saying that it's a good idea to allow the state to seize the car without accounting for the wife's interest. It was saying that Michigan's lack of an innocent owner defense to the seizure didn't rise to the level of a Constitutional violation.

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.

The right to unreasonable search and seizure at the Federal level supersedes all state law. This was just a bad Supreme Court decision, morally in the same "ballpark" as Plessy vs. Ferguson

Unfortunately for this argument, the word "reasonable" means pretty much the same thing now as it did in 1787, and is clearly meant to delegate most of the answer to this question to the people (in the form of the legislature), and not the philosopher-kings of the court.

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.

I'm not a lawyer but this strongly disagrees with everything I learned in high school civics class about judicial review, and with many many high profile court cases overturning popularly enacted laws, from Marbury v Madison through to the current day gay marriage ban reversals.

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.

SCOTUS can of course overturn any statute for any reason, valid or not, subject to very few practical restrictions. So when we're talking about where they'll intervene, we're always doing that with the proviso that we're predicting their behavior based on their charter and their history.

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.

I'm not arguing that the Supreme Court can do whatever it wants. I'm arguing that they are morally wrong. They've been morally wrong before and in a few cases overturned the previous precedent.

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.

Speaking of preposterous titles, don't forget "United States v. Forty Barrels and Twenty Casks of Coca-Cola" (https://en.wikipedia.org/wiki/United_States_v._Forty_Barrels...), in which the vigilante-ish first commissioner of the FDA tried to remove the caffeine from Coca-Cola. (The company had already removed the cocaine.)

It's mostly Nixon's fault. Back in the early 70s crime was rising and people were scared and they wanted to hear about how politicians were doing something. Murders were really a matter for local law enforcement rather than the Feds so Nixon came up with the politically brilliant idea of blaming crime on drug use, announcing a war on drugs, and creating new tools such as this sort of seizure of money.

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.

A suspected bank robber gets arrested when the money is kept. The outcome of the arrest is a conviction or an acquittal, which (automatically) determines the fate of the money. That's different from what is described in the article

Another pretty large difference between this an the bank robber case is that when the bank robber is convicted, the police don't keep the money...the bank gets it back.

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.

Forfeiture was designed for cases like this: A bank robbery suspect is arrested with cash on him. The police have no evidence against the suspect but obtain a written confession - the trouble is they did not read him his rights. The confession is inadmissible, the suspect goes free. Do you hand him his money on the way out of court?

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.

One reason not to institute the same penalty for the police is that taxpayers end up paying.

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[1]. 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.

[1] 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.

> In practice, you have small towns that can be bankrupted by a good-size suit, which is probably not a good outcome.

It's an excellent outcome. Particularly in small towns, the police strongly reflect the attitude of the people.

I went to high school in a southern town U.S. town that then had a population of about 2000. I can assure you that police behavior there strongly reflected the attitudes of a couple wealthy families in the town, not the ~1900 other folks.

Maybe treble damages would help, but with many areas of the legal system it seems to me that what's needed most is a much more efficient first pass by a neutral party (court) to determine reasonable presumptions that can be challenged by slower and more deliberate passes. In other words, why are the police and DA making this determination? Why can't we have neutral party making the determination as to what happens to seized property?

I think a better approach would be to turn the money to the state's general fund. That way you avoid the problems with cops loading up with overtime and buying fancy cars.

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.

What about sending it to the Fed to be recycled or distributed however newly printed money is distributed?

I think that to avoid bad incentives, No part of government should receive any benefit from the seizure?

Maybe the additional value that must be paid should increase with the time that it is held?

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.

> A suspected bank robber gets arrested when the money is kept. The outcome of the arrest is a conviction or an acquittal, which (automatically) determines the fate of the money.

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.)

Adding interest to the seized money is not enough. In anti-trust cases the US law is that damages are tripled to provide a deterrent to large companies trying to stifle competition from small companies. Why not have the same law in place here, if by some miracle a victim is able to prove their money is innocent they would get triple their money from the police.

Treble damages is not enough.

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.

Because the police haven't broken any laws and those guilty of anti-trust violations have.

Didn't civil forfeiture take off as a way to counter the rise of drug monies making kingpins? If to a great degree it's true and simultaneously we're reëvaluating cannabis and society and reëxamining three strikes laws, etc., I would hope we also take a critical look at this shift in burden of proof transferred to the accused with the hope it goes back to the prosecution.

Yeah but policing is expensive, being tough on crime is popular (but mostly only with white republicans) and lowering or eliminating taxes is sacrosanct to republicans. Perfect combination for these kind of abuses.

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.

Biden is one of the architects of these abuses, and the Democrats elected him vice president-- twice. Plenty of blame to go around.

I blame the dearth of choices, not the voters. I think they voted for the best option they had.

I think would not paint anti crime with such a broad brush. Many times the places supporting toughness on crime are places with high crime rates. Many marginalized areas want _more_ policing, not less.

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.

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