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Author Topic: Civil forfeiture in the USA  (Read 858 times)

Robert Roaldi

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Civil forfeiture in the USA
« on: September 15, 2017, 07:10:25 AM »

I had trouble believing that this was really a thing: http://www.cbc.ca/news/world/american-shakedown-police-won-t-charge-you-but-they-ll-grab-your-money-1.2760736.

But if you search around the interweb, there are plenty of discussions about it.
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Alan Goldhammer

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Re: Civil forfeiture in the USA
« Reply #1 on: September 15, 2017, 07:38:13 AM »

Civil Forfeiture has been around for quite a while.  Attorney General Sessions wants to make more use of it.  It's a good example of how "innocent until proven guilty" does not always apply.
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Robert Roaldi

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Re: Civil forfeiture in the USA
« Reply #2 on: September 15, 2017, 08:11:00 AM »

Civil Forfeiture has been around for quite a while.  Attorney General Sessions wants to make more use of it.  It's a good example of how "innocent until proven guilty" does not always apply.

I wonder if there are stats showing how many people whose money has been confiscated actually turn out to be criminals whose cash stems from criminal activities. It seems to me that for those who do NOT turn out to be criminals, this is just theft; I'm gobsmacked that restitution of the money to them is not automatic. This is the kind of thing that we used to ridicule about less democratic countries. I'm surprised that there haven't been constitutional challenges. Seems like a pretty egregious violation of individual rights.
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scyth

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Re: Civil forfeiture in the USA
« Reply #3 on: September 15, 2017, 08:37:24 AM »

It's a good example of how "innocent until proven guilty" does not always apply.
I was always thinking that the good example is the widespead practice of extrajudicial killing of US citizens by US gov't  ;D
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Slobodan Blagojevic

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Re: Civil forfeiture in the USA
« Reply #4 on: September 15, 2017, 09:59:12 AM »

"U.S. House lawmakers on Tuesday adopted a trio of bipartisan measures meant to rein in civil asset forfeiture, a controversial law enforcement practice that allows police to confiscate property from individuals without ever convicting them of a crime, and often without even charging them..."

http://www.huffingtonpost.com/entry/congress-civil-asset-forfeiture_us_59b92315e4b0edff9717ea65

I agree with the criticism of the civil forfeiture. Seems to me as one of those things that start with good intentions and over time turn into unintended consequences. Like red-light cameras, that started as a traffic safety measure, but ended up as a tax-replacement source for municipal budgets.

Civil forfeiture should be severely restricted.

Chris Kern

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Re: Civil forfeiture in the USA
« Reply #5 on: September 15, 2017, 10:24:16 AM »

I wonder if there are stats showing how many people whose money has been confiscated actually turn out to be criminals whose cash stems from criminal activities. It seems to me that for those who do NOT turn out to be criminals, this is just theft[.] . . . I'm surprised that there haven't been constitutional challenges.

It's difficult to come by accurate statistics because the majority of these civil asset forfeitures are conducted by police and other law enforcement agencies of the state governments and there is no mechanism for tracking them nationally.

Most instances where no criminal charges are filed almost certainly do involve the proceeds of criminal activity — e.g., rolls of $100 bills seized during a drug bust after the suspects have successfully flushed all the drugs down the toilet and therefore can't be charged with a crime — and when that happens the seizures aren't likely to be contested.  But there have been enough reliable reports of abuse that the Justice Department acted administratively to curtail the practice at the federal level during the Obama Administration.  Trump's attorney general, Jeff Sessions, has tried to reverse that decision, but it appears that Congress may legislatively prevent him from doing so.

Civil forfeiture has a long history under Anglo-American common law and is probably constitutional in the United States, but I'm not aware of a definitive Supreme Court ruling or a pending case that is likely to produce one.  Putting a stop to it, or at least preventing its abuse, probably will require legislation at both the state and federal levels.  The Washington Post this week published another piece about its use by federal customs agents with an interesting photography angle.

The style of that 2014 CBC opinion column strikes me as somewhat hyperventilated, and as far as I'm aware almost all the seizures from roadway interdictions have occurred near the Mexican border, but not carrying large amounts of cash into the United States probably is good advice.

Alan Goldhammer

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Re: Civil forfeiture in the USA
« Reply #6 on: September 15, 2017, 11:02:06 AM »


Civil forfeiture has a long history under Anglo-American common law and is probably constitutional in the United States, but I'm not aware of a definitive Supreme Court ruling or a pending case that is likely to produce one.  Putting a stop to it, or at least preventing its abuse, probably will require legislation at both the state and federal levels.   
Clarence Thomas is finally on the right side of an issue!!!  https://www.theatlantic.com/politics/archive/2017/04/clarence-thomas-civil-forfeiture/521583/   I believe there are some cases in lower courts.  Congressional legislation would render those moot.
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Rob C

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Re: Civil forfeiture in the USA
« Reply #7 on: September 15, 2017, 02:33:00 PM »

Maybe an "officer" needed a new ride.

Rob

Alan Klein

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Re: Civil forfeiture in the USA
« Reply #8 on: September 15, 2017, 03:21:06 PM »

I had trouble believing that this was really a thing: http://www.cbc.ca/news/world/american-shakedown-police-won-t-charge-you-but-they-ll-grab-your-money-1.2760736.

But if you search around the interweb, there are plenty of discussions about it.
I'm confused. Did the article just say the money was "seized" but there was no arrest?  I never heard of such a thing.  My understanding of these things is that they seize property as part of an arrest if the property was part of the alleged crime.  Am I missing something here? 
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Slobodan Blagojevic

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Re: Civil forfeiture in the USA
« Reply #9 on: September 15, 2017, 03:25:04 PM »

... Am I missing something here? 

Yes.

From the link I previously posted (bold mine):

Quote
Rep. Jamie Raskin (D-Md.), a freshman Democrat and longtime constitutional law professor, made a pitch for his own amendment, asking for support from anyone who “hold dear the idea of due process and the presumption of innocence as it applies, not just to us as people, but also to our private property.”

“Under this dubious practice, law enforcement may seize a citizen’s cash and property simply because someone suspects it of being connected to criminal activity, without convicting, indicting, arresting or even charging the property owner with having committed a crime and without proving or even alleging in court that the property is somehow connected to criminal activity,” Raskin said.

Alan Klein

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Re: Civil forfeiture in the USA
« Reply #10 on: September 15, 2017, 03:48:32 PM »

Yes.

From the link I previously posted (bold mine):

I didn't know they could seize property without an arrest.  That's wrong.  Frankly, I'm not in favor of seizing property with an arrest but before a conviction.  I could accept a freeze on selling  or spending property that a judge concludes prior to conviction that it may be part of a crime, but that's it.

What's interesting is why is this coming up now?  It's been around for decades.  Is it because Session and Trump are involved and it's become political.  Why weren't these people complaining before about due process?
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Slobodan Blagojevic

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Re: Civil forfeiture in the USA
« Reply #11 on: September 15, 2017, 03:56:25 PM »

I didn't know they could seize property without an arrest.  That's wrong.  Frankly, I'm not in favor of seizing property with an arrest but before a conviction.  I could accept a freeze on selling  or spending property that a judge concludes prior to conviction that it may be part of a crime, but that's it.

What's interesting is why is this coming up now?  It's been around for decades.  Is it because Session and Trump are involved and it's become political.  Why weren't these people complaining before about due process?

They did. About 20 states have enacted legislation that is more restrictive (against the practice) than the federal one. Obama tightened the federal regulation, and Session was trying to reverse it. Hence the latest bipartisan effort to prevent Session from doing so.

Chris Kern

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Re: Civil forfeiture in the USA
« Reply #12 on: September 15, 2017, 04:25:45 PM »

Here's the way it's supposed to work, using a variation on my earlier hypothetical.

Acting on a complaint from a neighbor, police officers secure a judicial warrant to search the house of a suspected drug dealer.  Inside, they find a large quantity of synthetic opioids that can only legally be sold with a doctor's prescription along with a wad of $100 bills, both in the possession of the alleged dealer.  They arrest him and impound the drugs.  No problem seizing the drugs: they're presumptive contraband, and therefore evidence that a crime has been committed.  The bills are ... well, they're just money.  But it's a reasonable inference that they were acquired through the sale of some of the illegal drugs.  So the police seize the bills as well because they believe they were acquired through the commission of a crime.

Convicting someone of a crime in the United States requires all but incontrovertible evidence: proof "beyond reasonable doubt."  Asset forfeitures are civil actions and the government can prevail as long as it is able to demonstrate "by a preponderance of the evidence" that the assets were the proceeds of a crime.  (That's the same standard that any other plaintiff in a U.S. civil lawsuit needs to meet.)  However in our hypothetical, since the police seized illegal drugs at the same time they seized the $100 bills, that is enough to establish a prima facie case that the bills are subject to forfeiture unless the owner of the bills can persuade a fact-finder (a judge or jury) by a preponderance of the evidence that the money actually was legally obtained.

Note that it doesn't matter whether the suspected drug dealer is convicted or acquitted at his criminal trial.  The asset forfeiture is an independent civil action against the thing sought to be forfeited.

(I'm using $100 bills in this hypothetical, but any asset is potentially subject to civil forfeiture: for example, real estate or personal property purchased with the proceeds of a presumptive crime.)

Anyway, that's the way it's supposed to work.  But there are enough well-documented examples of abuses by law enforcement authorities, including federal agents, to have generated strong opposition at both the state and federal levels to continuing the practice in its current form.  The most egregious instances are those where no criminal charge is ever filed against the owner of the assets subjected to civil forfeiture.  One possible reform is to require the return of the seized assets whenever there is no corresponding criminal conviction, or at least when no criminal charge is filed.  But absent a constitutional amendment, or a federal court ruling that the current practice is prohibited by the U.S. Constitution, that will require legislation or executive action by both the federal government and every state that currently allows civil forfeiture.

Slobodan Blagojevic

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Re: Civil forfeiture in the USA
« Reply #13 on: September 15, 2017, 04:36:52 PM »

To give another example: you just sold your car for cash and are returning home with, say, $10K in your bag. Police stops you, discovers the cash and seizes it. In many of such cases, people were able to get it back, but not without lengthy (months) and expensive (lawyer fees) procedure.

Rob C

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Re: Civil forfeiture in the USA
« Reply #14 on: September 15, 2017, 05:48:48 PM »

It beggars belief; land of the free, and all that jazz.

It makes reading Keef's biography Life, and of his various forms of grief in the USA, all the more believable even without any salts.

Add a car, and as he and Robert Frank discovered, things just get worse.

Rob

Alan Goldhammer

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Re: Civil forfeiture in the USA
« Reply #15 on: September 15, 2017, 06:03:07 PM »


Add a car, and as he and Robert Frank discovered, things just get worse.

Rob
Frank's images were just amazing.  Some years ago they had a showing at the National Gallery of Art here in DC of all the images from The Americans.  I already had the book but the presence of the images on the wall were far better in terms of conveying what he saw on his 'road trip.'
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Otto Phocus

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Re: Civil forfeiture in the USA
« Reply #16 on: September 18, 2017, 06:27:05 AM »

Sounds like something the Mafia would do. And yes, it has been going on for far too long. There does not seem to be appropriate oversight into this practice to prevent abuse.
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