The Civil Forfeiture Outrage: American Government At Its Worst, So Naturally We Ignore It

Do progressives and conservatives have the courage to confront the illusion-shattering outrage of civil asset forfeiture in America? Not so far they haven’t. That shouldn’t be too surprising.

There are some things our governments do that are so frightening, wrong and un-American that we tend to look right by them—ignore them, pretend they aren’t happening, focus on other things—because their implications are too confounding to deal with. For fans of big government, who look to central authority to micro-manage our economy, distribute our resources, protect us from every threat and isolate us from the consequences (and often the benefits) of human nature, the fact that government power corrupts as surely as any power is an inconvenient (and undeniable) truth that threatens the foundation of their ideology. How irrational is it to place more responsibility on the government if we can’t trust the government, because we can’t trust the inevitably flawed and conflicted individuals who run it?

The willful blindness is no less insidious with conservatives, whose core belief is the inherent goodness of the American system and way of life, as defined by our founding documents. Accepting that the largest and oldest democracy on earth sometimes targets and plots against law-abiding citizens means accepting the possibility that the system itself doesn’t work, and that its supposedly sacred ideals—life, liberty, and the pursuit of happiness—are a cynical lie. Aiding and abetting the blindness is the traditional media, which is substantially populated by self-important, inadequately-educated, ethically-shaky pseudo-professionals who believe their duty to objectively tell the public what it needs to know should be tempered by what they believe will persuade members of the public to adopt the “right” views, and, of course, by what will pull their attention away from the competition. Better to have features about Michelle Obama’s healthy eating crusade than to tell Americans about government wrong-doing, especially when the journalists support the party in power.

As a result of this toxic mix of bias, self-interest, self-delusion and incompetence, many of the most illuminating examples of how far America can go wrong can take a long, long time to enter into public consciousness. A recent example is insider trading by members of Congress, which had been well-documented for a decade before a “60 Minutes” report combined with the Occupy protest visibility and the widespread distrust of Wall Street suddenly made it a significant public concern. But other equally important issues, like the abuse of U.S. convicts, including the tolerance of prison rape, haven’t broken through the willful blindness yet.

Neither has civil asset forfeiture, despite the efforts of libertarian activists, publications like Reason, websites like Popehat, and organizations like ACLU and  The Institute for Justice, a libertarian, human rights public interest law firm that I have been negligent in not plugging earlier. (I apologize.) Right now, the Institute is going to court in a Massachusetts civil forfeiture case, United States v. 434 Main Street, Tewksbury, Mass, that serves as an excellent introduction to the sinister nature of this institutionalized abuse of power. Here’s the story, from the Institute’s website:

“Imagine you own a million-dollar piece of property free and clear, but then the federal government and local law enforcement agents announce that they are going to take it from you, not compensate you one dime, and then use the money they get from selling your land to pad their budgets—all this even though you have never so much as been accused of a crime, let alone convicted of one.

“That is the nightmare Russ Caswell and his family is now facing in Tewksbury, Mass., where they stand to lose the family-operated motel they have owned for two generations.

“Seeking to circumvent state law and cash in on the profits, the Tewksbury Police Department is working with the U.S. Department of Justice to take and sell the Caswells property because a tiny fraction of people who have stayed at the Motel Caswell during the past 20 years have been arrested for crimes.  Keep in mind, the Caswells themselves have worked closely with law enforcement officials to prevent and report crime on their property.  And the arrests the government complains of represent less than .05 percent of the 125,000 rooms the Caswells have rented over that period of time.

“Despite all this, the Caswells stand to lose literally everything they have worked for because of this effort by federal and local law enforcement officials not to pursue justice, but rather to police for profit.”

Do you think that description is just an advocate’s slant on a more complex and nuanced issue? I don’t believe it is. The civil forfeiture laws are perfect conflict of interest machines. Especially at a time when budgets are tight and public unions are being threatened with benefit cuts and lay-off, here is an all-too-tempting, legal (but unethical) way for law enforcement to increase revenue under the guise of preventing crime.

From Reason:

“Over the past three decades, it has become routine in the United States for state, local, and federal governments to seize the property of people who were never even charged with, much less convicted of, a crime. Nearly every year, according to Justice Department statistics, the federal government sets new records for asset forfeiture. And under many state laws, the situation is even worse: State officials can seize property without a warrant and need only show “probable cause” that the booty was connected to a drug crime in order to keep it, as opposed to the criminal standard of proof “beyond a reasonable doubt.” Instead of being innocent until proven guilty, owners of seized property all too often have a heavier burden of proof than the government officials who stole their stuff.

“Municipalities have come to rely on confiscated property for revenue. Police and prosecutors use forfeiture proceeds to fund not only general operations but junkets, parties, and swank office equipment. A cottage industry has sprung up to offer law enforcement agencies instruction on how to take and keep property more efficiently…Technically, civil asset forfeiture proceedings are brought against the property itself, not the owner….The government need only demonstrate that the seized property is somehow related to a crime, generally either by showing that it was used in the commission of the act (as with a car driven to and from a drug transaction, or a house from which drugs are sold) or that it was purchased with the proceeds.

“Because the property itself is on trial, the owner has the status of a third-party claimant. Once the government has shown probable cause of a property’s “guilt,” the onus is on the owner to prove his innocence. The parents of a drug-dealing teenager, for instance, would have to show they had no knowledge the kid was using the family car to facilitate drug transactions. Homeowners have to show they were unaware that a resident was keeping drugs on the premises. Anyone holding cash in close proximity to illicit drugs may have to document that he earned the money legitimately. When owners of seized property put up a legal fight (and the majority do not), the cases are almost always heard by judges, not juries. In some states forfeiture claimants don’t even have the right to a jury trial. But even in states where they do, owners tend to waive that right, because jury proceedings are longer and more expensive. Federal forfeiture claimants are technically guaranteed a jury trial under the Seventh Amendment, but can lose the right if they fail to reply in a timely manner to sometimes complicated government notices of seizure.”

Tolerating a law that can be used to persecute an innocent family like the Caswells to obtain income that will directly benefit the government agency doing the persecution requires excessive and unwarranted trust in the purity of government motives as well as the ethics of government personnel. As illusion-shattering as it may be for patriotic conservatives and government-boosting progressives, it is essential to focus seriously on this abuse of power. You can learn more about civil forfeiture—and truly, every civically-engaged American should be informed on this practice—by reading this concise Institute for Justice report here.

As for me, maybe I’ve been too hard on Ron Paul. He may not be so crazy after all.

[Thanks to Radley Balko for the story.]

14 Comments

Filed under Citizenship, Government & Politics, Journalism & Media, Law & Law Enforcement

14 responses to “The Civil Forfeiture Outrage: American Government At Its Worst, So Naturally We Ignore It

  1. Proam

    Civil asset forfeiture as you have described it sure seems like yet another insidious and unethical pathway to “more-entitled-to-power-than-thou” redistributionism.

    • tgt

      It’s not redistributionism so much as corruption. It was first created to nail those “bad guys” that they just couldn’t. Plain evil, but we stood by, because they were bad guys, and this was “tough on crime”. Then the tool was in the toolbox, so it was going to be used…like swat raids on white collar businesses.

  2. interested Blogger

    I sure hope some big guns come in to help this family – and fast. This is an outrage and a case that should play out on the national stage. If the government is going to take this property, they’d better be prepared to show why they’re not grabbing every other hotel/motel/inn in the COUNTRY. Bad guys check into rooms all the time. The onus can hardly be on the owners to know, in advance, that the people checking in may have criminal records and/or might engage in illegal activities while in the rooms. Short of installing 24-hour surveillance of the rooms – which would be illegal – there would be no way for the owners to protect themselves. This is beyond absurd! Is Alan Dershowitz weighing in on this yet?

  3. Danielle

    By this yardstick, I wonder if there will be any privately held motels left in the state when they are done.

  4. Dwayne N. Zechman

    I go you one further: I have always believed, and even posted about it once on the Scoreboard that it’s a conflict of interest for government entities to be the direct recipients of monetary fines that they charge.

    –Dwayne

  5. “As for me, maybe I’ve been too hard on Ron Paul. He may not be so crazy after all.” I’m a Paulite myself.
    What can we do though,Jack? Even as we are aware of these things to whom do we turn to to represent us against a powerful Federal government which holds itself immune from any action against it. It gives us a handful of candidates to vote into office,none of which we’re crazy about but we vote for the one who promises change and does nothing once in office.
    It takes money,and lots of it to run against the status quo and the one with some experience and good aspirations won’t get in the front door.

  6. Sue

    I just felt a rumble. I am quite sure that it was John Hancock turning over in his grave.

  7. Because the property itself is on trial, the owner has the status of a third-party claimant. Once the government has shown probable cause of a property’s “guilt,” the onus is on the owner to prove his innocence.

    This is a feature of civil liability law, where the burden of proof is “preponderance of the evidence”.

    Over the past three decades, it has become routine in the United States for state, local, and federal governments to seize the property of people who were never even charged with, much less convicted of, a crime.

    That happens when people lose civil lawsuits. The SEC, for example, can sue someone for stock fraud, even if they had been acquitted .

    There are some credible stories about there not being sufficient due process. But civil asset forfeiture per se is not wrong, and as long as those whose property was taken have the same due process afforded to others who are sued for damages, i have no problem with it.

    • tgt

      It’s not wrong because it’s similar to something else that is horribly wrong. Good job!

      You’re also wrong in how it works. The government takes first without the benefit of a civil trial. It’s like if I took your stuff, the government refused to intervene, and the only possibe negative consequence I could face is giving you back your stuff… and you have to go through administrative procedures where I am given the benefit of the doubt. That doesn’t seem right, does it?

      • It’s not wrong because it’s similar to something else that is horribly wrong. Good job!

        I disagree.

        I have no objection to the burden of proof in civil cases, nor the idea that the government can sue someone who defrauded it even if that someone had been acquitted in a criminal trial.

        You’re also wrong in how it works. The government takes first without the benefit of a civil trial. It’s like if I took your stuff, the government refused to intervene, and the only possibe negative consequence I could face is giving you back your stuff… and you have to go through administrative procedures where I am given the benefit of the doubt. That doesn’t seem right, does it?

        No, it does not. At a minimum, the government should be required to return the taken items unless it files for forfeiture, and the owner of the property has a chance to contest it, with the same procedural due process afforded to all civil damages defendants. To that extent, it should be changed.

        But we should keep the idea that, if the government could prove, with a preponderance of evidence, that property was used to commit a crime with permission from the owner, the property is forfeit.

        • tgt

          I disagree.

          I have no objection [...] the idea that the government can sue someone who defrauded it even if that someone had been acquitted in a criminal trial.

          This is issue we should talk about. There was a reason the “Beyond a reasonable doubt” level of evidence was required for the government. It was supposed to curb abuses and limit the impact of the power imbalance between citizen and government. Allowing the government to only need the 50% standard, eradicates the controls.

          But we should keep the idea that, if the government could prove, with a preponderance of evidence, that property was used to commit a crime with permission from the owner, the property is forfeit.

          I’m not sure how we can keep something that doesn’t currently exist. You seem to actually be for throwing out civil asset forfeiture, and allowing the government to be the plaintiff in civil proceedings.

  8. This is issue we should talk about. There was a reason the “Beyond a reasonable doubt” level of evidence was required for the government. It was supposed to curb abuses and limit the impact of the power imbalance between citizen and government. Allowing the government to only need the 50% standard, eradicates the controls.
    It is limited that the government, if successful in a civil suit, can only get money damages or a civil injunction. It can not do anything like imprisonment, or removal of gun rights, or a military dishonorable discharge.

    You seem to actually be for throwing out civil asset forfeiture, and allowing the government to be the plaintiff in civil proceedings.

    No, just modifying it so that those subject to forfeiture have the same procedural due process afforded to civil defendants.

    • tgt

      It is limited that the government, if successful in a civil suit, can only get money damages or a civil injunction. It can not do anything like imprisonment, or removal of gun rights, or a military dishonorable discharge.

      The power imbalance isn’t just about imprisonment. It’s about the scope of what can be done and the laws that can be made. It’s about breadth and depth. With civil suits, the depth is gone, but the breadth is still a problem.

      No, just modifying it so that those subject to forfeiture have the same procedural due process afforded to civil defendants.

      Yea, I’m just modifying my wolf into a rabbit. All you gotta do is add a cute tail and floppy ears. It’s not that different…

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s