Civil Forfeiture and the Supreme Court (2014)
economist.com
economist.com
I would rather let 100 criminals hide ill-gotten gains than let one innocent person have their assets seized before they can mount a proper defense.
Prosecutors: Freedom means that your job is harder, but fairness and the rule of law is part of what makes this a great country to live in. We will appreciate your sacrifice if/when this issue is ever remedied
It is popular to say, but so often I think people don't actually believe it once they are taken to task on it. For example, given evidence that there is a 98% chance someone significantly harmed a child, most people would vote guilty, even though this equates to jailing 2 innocent people to make sure that 98 guilty do get punished.
I think it's worth noting that civil asset forfeiture, while controversial, isn't necessarily evil in itself, if done with a high bar to seizure. I think it's fair to say that someone who makes a fortune using illegal means should have to surrender that fortune.
Where asset forfeiture falls down on this is that FAR too often, no illegal acts are proven before forfeiture is initiated, and substantive due process should need to be the hurdle before that happens. This will of course lead to the unfortunate likelihood that "bad people" will use some of those fortunes in their legal defenses, but if "innocent until proven guilty" is to be our standard, and it's a mighty good one IMHO, then so be it. The alternative is much worse (again, IMHO), which is that those without fortunes, and hence, without the means of adequate legal representation, are simply unable to defend themselves at all except through court-appointed lawyers of potentially questionable effectiveness.
The trick, of course, is that the state has a hurdle before stealing goods, and they have no incentive to impose such hurdles upon themselves. I don't know what the fix for that is, short of being really loud and riotous, but someone else's off-the-cuff remark the other day struck a chord to me (though not without its own potential pitfalls) -- limit attorneys general and other positions of that sort to only defense and criminal attorneys with a history of having defended the rights of citizens.
If we accept that the job (or at least a job) of the government is to defend the rights of the citizenry, then such an exclusion makes a certain amount of sense. As it stands, the state, and its agents, have a disproportionally stacked playing field.
There may be a serious problem with quality of representation if a substantial portion of the people working as public defenders are doing it to meet a checkbox on the way to their planned career as public prosecutors.
There's also the possibility that someone who starts out just checking a box will discover that there are more shades of gray in these situations than they had realized.
No need to compel people who want to be prosecutors act as public defenders. Just arrange the economic incentives properly.
The civil part of civil forfeiture is what keeps the bar too low. Criminal forfeiture requires a conviction beyond a reasonable doubt and the full panoply of criminal protections.
That said, the Economist didn't quite get the story right. The underlying case was about whether and when the government can freeze access to property that would be criminally forfeiture in the event of a criminal conviction. So it really doesn't have much to do with civil forfeiture at all.
A little over a year ago I wrote a comment discussing the history of the constitutionality of civil forfeiture that might be interesting: https://news.ycombinator.com/item?id=8582155
Although the conviction requires the government to prove guilt "beyond a reasonable doubt," the forfeiture is subject to a lower burden--preponderance of the evidence.
This case demonstrates the real-life consequence of this difference in standards. In this case the government could not establish "beyond a reasonable doubt" but the accused could not demonstrate "preponderance of the evidence" for innocence either. So the accused don't go to jail but still lose their house.
And here we get to the real problem with how civil forfeiture is actually used today. How do you establish a "preponderance of the evidence" when no specific crime was ever alleged? It is effectively impossible! The TSA can always allege "a smell of marijuana" and claim probable cause for the seizure. They have a direct financial incentive to do so, and you have no way afterwards to prove that they were lying.
1. Is pre-emptive asset seizure justifiable to prevent allegedly ill-gotten gains from being hidden away prior to judgement?
2. Do such seizures unfairly prevent the accused from hiring the counsel of their choice?
My thoughts on #2: If you argue that this will result in an unfair trial and increased likelihood of a false guilty verdict, then what about people who couldn't afford to hire their counsel of choice in the first place? Any argument or system where judgements are biased by wealth is fundamentally not justice. In other words, my answer to #2 is no. The ability to hire good counsel should not be dependent upon one's assets. The outcomes of trials should not be dependent upon which side has more money. Some alternative systems that would be fairer, in my opinion:
A. All counsel is provided by the state and each side gets assigned counsel randomly.
B. Each side contributes as much as they want to a pool of funds. Each side gets to spend half of the pool on the counsel of their choice.
B is the better solution for a free market-based society.
Your #2 is a non-starter because #1 is flawed.
Red Herring. I made general statements, not opinions about the specific case in the article. Please judge the statements on their own. I was pretty careful in my choice of words, e.g. "to prevent allegedly ill-gotten gains".
> Your #2 is a non-starter because #1 is flawed.
You failed to de-conflate.
> If we want to have a reasonable discussion about this
The "this" in that sentence (to any reasonable human) would mean that you were talking about the subject of the article, the people that got their money seized, not "in general asset forfeiture".
So no....not a red herring.
If you wanted to be careful, your first statement should read: "if we want to have a discussion about asset forfeiture...".
If your living on your savings then what do you do if they take all your savings for a multi year trial?
First fix the problems of the US juristic system, before trying to crush the ordinary citizen with further ordeals.
Even the Magna Carta defended the possessions of a free person from the access of the state without court trial. What the US started here, is a slap in the face of the base of our civilizations.
And it shouldn't be either.
Keyword #laughingstock
This is why I don't think Obama is a great president.
This is why as a liberal I agree much more than I want to with the conservatives who argue about big government.
Why does the conservative court members always take the side of government when going against people like me and you?
Why does the conservative court members always take the side of corporations when going against people like me and you?
Why respect the Supreme Court when its decisions mostly are against the middle class?
In a libertarian society (or even in a Constitutional Republic sought out by the founders), laws are made as close to the people as possible, with the Federal government having 14 explicit powers (the power grab by interpeting the 'necessary and proper' clause broadly would not exist, and the 10th Amendment wouldn't be ignored), so you'd see Local ordinances, county ordinaces, and state laws most; and very few federal laws (again, they'd only need to cover their 14 expressly granted powers).
Corporations (and labor unions, and any other 'special interest') wouldn't have to just lobby the Federal government, they'd have to lobby all 50 states, plus any localities; in short, it'd be a monumental proposition (even if we assume they were capable).
Also, since the Federal Government would be necessarily weaker, there wouldn't be an incentive to try to lobby them -- no one lobbies the person that has no power.
Currently, you can lobby 51-60 senators and 271 Congressmen and effectively rule the country (Remember, the ACA was written in part by the insurance industry), and in a libertarian society, there'd be no basis for that to ever happen.
Also, sustained monopolies are a by-product of Government intervention (either through regulation, or explicitly by making rules against competition, much like the Railroads). In our lifetime, anyone who has 'had a monopoly' has sustained it with government help (think of Ma Bell; where utility providers are considered to have a 'natural monopoly' and as such competition is purposefully limited or non-existent). In Microsoft's case, nothing happened and their 'monopoly' was very short lived (1995-2005, Maybe?) because everyone innovated around them. There were no laws restricting who could get into the browser business, and Microsoft found themselves out-foxed. They're still trying to make up lost ground.
Before saying "Libertarian policy would be far, far worse for the middle class right now", you have to ask yourself if you really understand what a Constitutional Republic actually calls for.
Shrink the reach of the federal government, and we'd be looking at rule by corporations, i.e. that don't answer to us not only in practice, but by design. How we know this? Weeelll, just look back a hundred years, when we had a significantly smaller federal government. Big businesses had far, far more power than they do now.
Libertarianism surely sounds good. That's part of its enduring appeal. But for real-life workings? Nah.
For anyone interested, this is a pretty good place to start unraveling the usual libertarian fare: http://world.std.com/~mhuben/libindex.html
Growing the federal government to protect us from all the evils of corporations is at least as naive an ideal as the libertarian one you are railing against, and moreover, presents a false dichotomy.
American government is likely more an oligarchy now than it ever has been. So long as the policies are there that give the federal government influence, that influence will be exploited.
If we can accept that neither unrestrained corporate power or oligarchical control of government is good, then we should be able to accept that the solution is in some middle ground, and ideological appeals to either end of the spectrum is likely ill founded.
I'm describing the libertarian fantasy such because it doesn't reflect any history, and it doesn't work out the way it's supposed to wherever it's been tried. As best we have it, evidence simply doesn't support that libertarian policy ideas work the way they're supposed to.
As for "statist fantasy," well, here we are: through a long, slow process of democratic engagement, we have agencies that protect our environment, improve road safety, keep workplace hazards minimal, and work to minimize discrimination in the workplace. None of them, of course, are perfect, but they all came about in response to something, some perceived imperfection in the world. People voted in politicians who reflected their values, and that eventually filtered into what we have now.
But, you know, nothing's ever perfect, and it's always a process of refinement. The difference between my "statist fantasy" and the libertarian one is that I see that, by means of government, we're slowly getting the world we want.
Giving free reign back to big business, to turn the environment and workplace back into a free-for-all, how much sense does that make?
Fair.
> I'm describing the libertarian fantasy such because it doesn't reflect any history
That's arguable, really, and depends on how one defines "libertarian". I tend to get lumped in with libertarians (and even self-profess to be one when the label is convenient), but depending on your definition, early America certainly can fit the bill.
Were there evils done in that time? Absolutely. Are there evils done today? Absolutely. For every agency you listed, I could list evils that they do as well, and more specifically, evils that benefit either only themselves or the corporations that have demanded them. I agree that nothing is perfect, and I'm not necessarily suggesting that there isn't a place for government protection from corporate evils -- but at the same time, it's worth refraining from dismissing entire ideologies out of hand, especially as not every libertarian argument reflects the scenario you portrayed.
It's also worth noting that the libertarian argument, or at least the constitutionalist argument, doesn't mean that the abolition of, say, OSHA, will result in a complete and total lack of workplace safety regulation. The states can and should enforce workplace safety standards, and as the states are (in theory) more answerable to their people, that should be more reflective of public will.
I definitely agree that nothing is a panacea, and I'm not really arguing in favor of either ideology, except to point out that just because A is not right, that doesn't mean that B necessarily is.
Nonsense. The corporations are given free reign and support by the government. If the government didn't establish favorable regulations, they would be slowly whittled away by their smaller, nimbler competitors.
Economies of scale aren't a simple slope. They're a bell curve. After you get to a certain size, any additional growth is detrimental and you can only exist through artificial means.
Get rid of big government and you get rid of big corporations too!
There's such an imbalance of power between employer and employee that there's no meaningful competitive advantage to a safe workplace; if employees really were all self-empowered free agents, and not scared and hungry people with families and children to support, we wouldn't have needed an OSHA in the first place!
All the regulations the libertarians want to turn back, they all came about in response to the world working so imperfectly that it had to be changed with force of law.
Undoing that, on the basis of a theory with absolutely no real-world evidence of working? That just doesn't make sense.
Why do you need the EPA again? My local government represents my locality. It can easily sue in civil court for any damage to the environment and use the resulting funds to make repairs. With the feds stepping in, makes this scenario much more complicated and difficult. They have jurisdiction.
> There's such an imbalance of power between employer and employee > self-empowered free agents
Let me posit that if you have a traditional employer, you are not a "self-empowered free agent". Ditch your employer. Thank the maker we're slowly moving toward that eventuality.
> All the regulations the libertarians want to turn back, they all came about in response to the world working so imperfectly
That's one possibility. Another is that "special interests" lobbied for those changes at which point the politician came up with a more pleasant justification for said regulations, sold them to the ignorant public, and now they're in place.
Which do you think is more likely?
Because it seems like the big businesses always complain about the EPA as an emblem of government overreach, even though getting rid of it would be good for them and bad for everyone else, especially the people in the community suffering from the pollution!
And your answer is, "let them (all the people suffering from the effects of the pollution) all file lawsuits in state/local courts"?
If that wasn't working out before we had an EPA, why would it start working out now? And how would it be better/more efficient/an improvement to move from a condition of "pollution is limited" to "pollution is limited, but only after people file and win lawsuits"?
I mean, I'm really trying to see how we'd be better off if you took away the EPA, but wanted to keep pollution restrictions in place by this other, far more elaborate and far less accessible means. Hey, if really you just don't want pollution restrictions at all, then let's talk about that, let's ask, would we be better off without pollution restrictions?
Trying to say "no, the EPA is bad, but what they do is good and let's get to the same place through a complicated and lengthy process of local lawsuits"? Again, that don't make sense.
What makes you think it wasn't working before? Those same corporations would shit a brick if they had to defend themselves from a 1000 lawsuits vs just one from the EPA. Everybody would have standing instead of just the EPA, because really everybody is getting fucked. You think they're complaining now? They'll go bankrupt if you get rid of the federal protection, which was my point.
But instead of us citizens charging one government agency to do this specific job, you think it's going to work out better for us people to have to, as individuals, research and understand the issue enough to file lawsuits?
That a bunch of regular folks, most of whom probably don't have a lot of cash lying around to file lawsuits, people who just own homes and work somewhere and whose community is now being polluted.. rather than use the specific tool of a government enforcer, the burden's on each of them to go file a bunch of separate lawsuits?
And this outcome is better for them, and will lead to the same pollution restrictions they could get from the one agency doing its job?
I mean, that's what it sounds like you're saying, but it just still doesn't make sense.
What kind of court system would we need to handle the increased amount of lawsuit traffic?
Wouldn't future libertarians just start railing against the bloated, overgrown size of the massive court system we'd need to handle a thousand lawsuits against one corporate polluter today... several hundred lawsuits against a restaurant that was poisoning people tomorrow... a thousand lawsuits against a factory that was making a lot of noise in the middle of a residential neighborhood...?
Note: that this isn't unique to conservatives...modern-day liberals have sold out their core constituency to an equal degree, but I focused on conservatives because I believe the conservatives that you find yourself agreeing with are the kind that don't really play a part in the Republican party anymore. They've been marginalized by Fox News and talk radio (Rush et al).
Conservatism never meant small government and reduced spending, it has been(since both classical conservatism and classical liberalism were defined), protection of the interest of the status quo elites, typically by appeals to tradition, religion, and national identity.
Modern American political conservatism includes a lot of small government rhetoric because the status quo elites it protects are outside of government, and because it has sought to harness support for libertarian ideals and work it in favor of conservative politics. But there's nothing essentially small government about conservatism, and the idea that the two are related is a fairly recent phenomenon.
> Neo-conservatism changed all that.
Neo-conservatism is a bit weird, in its history (largely being founded by disillusioned ex-Trotskyites, and centering on global revolution vary similar to that supported by Stalinists, but with neoliberal economic systems and the US taking the role of Communist economic systems and the USSR) and other ways, but only had a brief moment (roughly corresponding with the George W. Bush presidency) as a dominant force in the broader scope of US conservatism; religious/social conservatives supporting big government enforcing their particular social views have been a dominant force in American conservatism as long as there has been American conservatism, contrary to your idea of small government orientation as an essential feature of conservatism that has recently been lost in America due to "neo-conservatives".
I've not heard that before; who do you mean? I saw the "PNAC" manifesto years ago.
PNAC was the resurgence of the neoconservative movement (and preceded it rising to its greatest heights of power), but not its origin; some info on the movements origin that discusses its first rise to influence and the period after -- written a couple years before PNAC was formed: https://www.foreignaffairs.com/reviews/review-essay/1995-07-...
This reads as a non sequitur.
I got a bunch of down votes. But HN downvotes (and upvotes) behavior never have any correlation to the comment itself. My most throw away comments get a bunch of upvotes. My more thoughtful, respectful comments get downvoted.
I will be willing to bet that this particular comment gets downvoted a lot just... because.
So I ignore random number after my login id.