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House Passes Amendment to Restrict Asset Forfeiture (theintercept.com)
131 points by jseliger 7 months ago | hide | past | web | favorite | 31 comments

For those who aren't aware, civil asset forfeiture is a process by which law enforcement, local, state or federal, could claim a particular item, amount of cash, vehicle, piece of real estate, on the basis of a suspicion that it was involved in criminal activity, and then sell or use that item, even if the individuals suspected of criminal activity were never charged, much less convicted.

Further, since this was a civil matter, there was no right to an attorney, and it is often more costly to seek recompense, return or reimbursement then to simply let the matter go. As well, some individuals have had their child custody threatened as a way to get them to agree to give up items, though to be clear, they don't have to agree, cash or whatever can just be taken.

There is a perverse incentive in that the law enforcement department often was the recipient of the item or some of the proceeds of the sale of the item, and there have been numerous cases of provably innocent people getting stuff taken without ever being charged for a crime.

If I'm reading the article correctly, they didn't abolish the procedure, just Jeff Sessions's attempted expansion of it.

Why hasn't the whole thing just been banned outright? It contorts any notions of fairness and sensibility in our legal system that an item can have charges brought against it, and that there is no due process or other recourse for the owner.

The problem is that it's got a very solid legal pedigree. One of the first things the founding fathers did is to provide for forfeiture of contraband (in the customs context). It's also incorrect to say that there is no due process or other recourse--the government still bears the burden of proving that the property is the proceeds of a crime: https://www.law.cornell.edu/uscode/text/18/983.

> the government still bears the burden of proving that the property is the proceeds of a crime

Is it possible that's only at the federal level (which of course is what the House's bill addresses)? I've read many articles in credible sources, such as the Washington Post, saying that the owner of the property has to demonstrate they are its rightful owner (or some similar standard). The articles said many abandon their property because the cost of contesting the seizure, including attorney costs, outweighed its value.

That code sounds decent enough. But, based on accounts that I've seen in the media, the reality is horrible. People are told that they don't have standing to contest the forfeiture. Or they lack the resources to even petition, language in that code about representation being provided.

The legal pedigree matters if you want to get the law abolished or changed by the Supreme Court. But in theory it is also possible to have representatives vote on new laws, exercising the legislative power in what is its nominal seat.

Oh I agree. But unfortunately a lot of stuff that’s bad (e.g. how criminal defendants were treated before the 1980s) gets fixed only because it’s also unconstitutional. If you’re a middle class American you’ve probably never had to carry a large amount of cash around because you’ve got a bank account/PayPal. So it doesn’t affect your vote if cops are going around seizing cash from drug dealers and lower class people are getting caught up in the net.

> and that there is no due process or other recourse for the owner.

This is simply incorrect as a matter of fact, both known and unknown parties who own or have a cognizable interest other than ownership in the property subject to forfeiture proceedings are due certain process, including notice (direct for known parties, public to address the unknown) and opportunity to participate in proceedings.

As usual in a civil case, the government as plaintiff bears the burden of proof for forfeiture, as well.

That's not the case in every jurisdiction. And even where it is, the burden of proof is usually lower as a civil matter, and there is no right to an attorney.

This is why they usually use civil forfeiture against people that cannot afford an attorney -- they do not need to charge anyone with a crime, or provide a public defender.

So, for small cases, the cost of defending dwarfs the loss from forfeiture, and there is no legal recourse in practice.

For this to be remotely fair, you'd need to eliminate the current widespread abuses by law enforcement. For example, there could be stiff penalties when law enforcement loses the civil case.

A minimum of (cost of assets + legal defense fees) * 10 seems reasonable to me -- it would prevent civil forfeiture from being a reliable profit center.

The whole thing may not need to be banned outright, from what I gather it was specifically the enactment of "equitable sharing" in the 70's that constructed the perverse incentives we have today.

Can someone please explain to me how this is still legal? Has this not been challenged through to the Supreme Court? The idea that the police can just steal money like this without a trial seems like textbook unconstitutional behavior. How has this been allowed to continue for so long?

There was a civil forfeiture case in 1827[0] where a ship was seized for piracy without convicting the owner of the crime... the supreme court upheld that action. It also lays out a couple of things: that the property is considered the offender; and that the property's offense and the owners criminal offense are two separate issues.

That's the basis for civil forfeiture laws.

There was a recent case that came up: Leonard v Texas[1].. where 200k in cash was seized that police said was from narcotics sales. She had a bill of sale for a home for the same amount. The problem is, she didn't raise the due process issue until it reached the supreme court.. which is a procedural error.. so the court denied it.

So I think we're still waiting for a more modern ruling from the supreme court on it.

0. https://www.law.cornell.edu/background/forfeiture/palmyra.ht...

1. http://www.scotusblog.com/case-files/cases/leonard-v-texas/ 1a (ruling): http://www.scotusblog.com/wp-content/uploads/2017/03/16-122-...

that the property is considered the offender

Did the court just have its head way up its ass?

Probably because they seize assets only from people who can't afford to mount a defense.

Especially after their assets are seized.

> The idea that the police can just steal money like this without a trial

Forfeiture cases are not without trial, where there is a party with interest in the property contesting the forfeiture.

I’m not sure what the surprise was. This was an election question to a lot of reps of both parties. There is a lot of resentment and fear out in the country. Sessions is at odds with a lot of his own party. The Democrats have a similar split between reps and mayors.

For me, I'm surprised that the house was able to do something good for a change.

    Amendment number 126 was sponsored by a
    bipartisan group of nine members, led
    by Michigan Republican Rep. Justin Amash.
    He was joined by Democratic Reps. Ro
    Khanna of California; Washington state’s
    Pramila Jayapal, a rising progressive
    star; and Hawaii’s Tulsi Gabbard.
I'm nothing less than delighted to be represented by Pramila Jayapal. She's been a fantastic representative for Seattle, and I look forward to seeing how her career in Congress develops.

Interestingly, she was also the first sitting member of congress to speak at PAX. https://www.gamasutra.com/view/news/305179/PAX_Report_Rep_Ja...

How well would this work for an affluent entity (legal or otherwise) in the wake of being charged with crimes?

With the ability to jump through many of hoops without substantial loss of personal effort/time/income, I would see this as advantages.

While not in those big of shoes, I do enjoy the principle, 'If you know the rules to a T, you can play the game to a T.

Couldn't they shift the burden of proof to the entity making the seizure, and also add a penalty of say credit card interest (coming out said police district's yearly budget) for the time the asset is seized?

Seems like that would at least help to reduce the incentive to seize whatever is shiny?

What was the rationale provided for the expansion of forfeiture this vote rolls back? I'm guessing it wasn't "we need to be able to steal"?

Drugs. Specifically dealers and extended to people who were theoretically going to go buy drugs. It kinda blossomed out from there and became a free for all theft fest by impoverished police departments. It was frequently used as a punishment for DWB.

This asset forfeiture is a controversy even in simple citation like Berkeley officer seizing illegal street vendor's earning.

Will this pass the Senate?

Even if it did, would it get signed into law by Donald?

He can either sit on it and 10 days later becomes law automatically, or veto the bill. Then up to Congress to override the veto.

Q: I forgot, is it the Senate or HoR, or both have to override the veto?


Considering it's part of the wall budget bill, yes.

What does this have to do with building a wall? They should pass a bill that prevents overloading bills with irrelevant addenda.

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