edit I'm not sure of the best way to improve or change this, so would love to hear from others on the best way to make that change possible.
Unfortunately it's expanded to all sorts of ridiculous and blatantly unconstitutional seizures in the last few decades.
Such seizures should have the same procedural limitations as arrest of an individual does. Individual procedural limitations:
- Police can arrest you and throw you in jail if they have reason to suspect you committed a crime.
- Within a certain number of days of being thrown in jail, they have to either produce concrete charges against you, or let you go
- While the trial is going on, you can apply for bail to get your freedom.
- You can't finally be thrown in prison until you've been convicted by a jury of peers.
You could apply parallel standards in this situation:
- Police / coast guard could seize a ship if they have reason to believe it's smuggled goods
- Within a certain number of days, they have to either produce concrete charges against the owner, or let them have your stuff back.
- While the trial is going on, the owner should be able to apply for "bail" to get their stuff back. A judge can determine if it's worth the risk or not, just as they do for prison cases
- The stuff can't be finally taken away until the owner has been convicted by a jury of peers.
Adding in something like, "All seized goods are distributed to the poor" or something rather than "All seized goods go to the department which seized them" would go a long way towards ending this sort of abuse.
- Police arrest you
- You can request a Writ of Habeas Corpus
- The judge then issues the Writ
- The police either have to accuse you of a crime or let you go.
You could do the same thing wrt the stolen goods:
- Police sieze contraband
- Owner requests Writ of Habeas Stuffus
- etc
In the case of an owner in another country and is pretty sure they'll get arrested if they show up to claim their stuff, then they'll choose to leave the stuff where it is rather than apply for a writ. After a year, the police could consider it forfeit by default.
The legal theory which underlies civil forfeiture is "in rem jurisdiction" where it's not the owner, but rather the property, which is the defendant in the case. If the case is at a Federal level, then it will be something like "United States of America vs. $50,000 in United States currency".
The standard of proof is not at the criminal standard ("beyond a reasonable doubt") but instead the civil standard ("preponderance of evidence").
So, seize the goods in anticipation of convicting the owner. Make a law that says the owner can apply for a writ, and a case must be made. If the owner doesn't show up, then the goods are abandoned property. That allows the case described to be prosecuted, while not opening up the insane abuses we've all heard so much about.
The situations it's intended to address are things like this:
Bob meets regularly with known members of Mexican drug cartels, but doesn't actually seem to be involved with the illegal sale of drugs. Bob files his taxes every year and makes a modest income. However, every day, Bob drives over the border at El Paso in his car with a million dollars of cash in a briefcase.
If the DEA stops Bob, he asserts that the cash is his. Since it's not obvious that Bob has actually committed a crime, shouldn't there be some mechanism to allow the obvious profits of crime to be confiscated without having to convict Bob?
A lot of reasonable people think the answer to that is "yes"; but it is apparently hard to create a mechanism that doesn't also result in the police confiscating your car because your friend that's riding with you has $500 of cash, a bunch of empty baggies in his pocket, and prior drug dealing conviction.
I was attempting to describe a situation where, if the law permitted it, you could bring in a jury and let a prosecutor make the case that Bob's briefcase constitutes the proceeds of crime, and have a solid chance of success at the "beyond a reasonable doubt" standard of proof which is required for a conviction.
But you can't prosecute a briefcase full of cash; and Bob's actions are not in themselves criminal. Without some kind of asset forfeiture system, nothing can be done.
There's a pretty reasonable public policy argument that this is not an acceptable situation.
So you're saying:
* You have evidence enough to prove beyond a reasonable doubt that Alice, the owner of the cash, has committed a crime, and that this cash is the result of that crime
* Bob himself hasn't done any crimes at all.
We can't prosecute Alice because she's in Mexico; and we can't prosecute Bob, because he hasn't done anything wrong.
Well then, seize the cash, and let Alice come for it. If Bob claims it's his and applies for a writ, show the evidence to the judge that Bob isn't actually the owner. If Alice applies for the writ, present your case against her. If she doesn't come for it after a year, treat it as abandoned property. Everybody gets due process.
If you don't have enough evidence to prove that Bob isn't the owner, you don't have enough evidence to convict Alice of a crime, and therefore it's a violation of human rights to take her money.
Civil forfeiture works fine for this case, which is the whole point, because indeed neither will Bob be able to demonstrate it's really his, nor will Alice be arriving to collect.
Where it all goes wrong in other cases is "Bob claim it's his and applies for a writ". i.e. it becomes Bob's responsibility to prove his ownership in court, rather than the government's job to prove anything at all.
i.e. the government performs an administrative seizure without any proof obligation, and then reverses the burden of proof onto the person from whom the assets were seized
In the real world, for small-time asset forfeiture, the amount involved is too small to be worth the effort; or Bob often doesn't have the money for a lawyer to bring that action; or this all happens while he's traveling away from home, so the court appearances are going to involve air fare, time off work etc. Or Bob is presented with the problem of proving something that is difficult to evidence, like "I have been saving this shoebox full of cash in the closet for a long time for my daughter's quinceañera"[1].
Ultimately, yes, due process is available but it's not free, it's not low-friction, and it's many a time not worth it.
[1] https://thehill.com/opinion/criminal-justice/578798-the-high...
I said at least twice that it's the government's job to prove that it's Alice's and not Bob's.
You proposed a hypothetical scenario where there is plenty of evidence to prove beyond a reasonable doubt that this cash was the result of a crime by Alice. So, when Bob comes and claims the cash is his, present that evidence. It's not a matter of Bob proving that it's his; it's a matter of Bob proving that this "beyond reasonable doubt" evidence you have of Alice's crime is bogus.
We're getting really into the weeds here; I'd expect a lot of the precedents to be established by a series of cases. But I would think that a reasonable starting point would be that possession implies ownership by default; and that if the government wants to prove that the money that was in Bob's possession is not Bob's, then the burden of proof is on the government to prove that. In your hypothetical scenario, there is plenty of evidence that the money is not in fact Bob's, so it's not an issue.
If it turns out the evidence that the money is really Alice's drug money is actually pretty thin, that's a reason Bob should get the money back.
Obvious to who?
If it's so obvious then charge Bob. If it's not then no confiscation.
Why do we want some weird half conviction? And if do you want that then do a plea deal.
No, those people are absolutely not reasonable! Those people want a magic world where we have crystal balls that tell us exactly who's innocent and guilty. That would certainly be nice, but that's not the world we live in.
It's frustrating when the guilty go free because of the rules we have in place to protect the innocent; but those rules didn't come out of nowhere. They are the result of the hard-won experience of thousands of innocent people being punished. If you remove them then innocent people will be punished again.
Absolutely-fucking-not.
Law enforcement should never be able to seize property without the charging of a crime when they know who owns the property.
why not? prosecute them normally, if they show up then the trial proceeds as usual, if not then convict them in absentia and then forfeit the goods. why does this require a whole new system that bypasses all the constitutional rights for domestic citizens?
And legal systems of any nation are more than just the constitution.
So the idea that you can just read one clause in the constitution and therefore clearly know what is allowed and isn't (also, even the interpretation of that clause is not as easy as you are portraying here) is absolutely false.
In any case when a legal system clashes with the wording of the constitution it is that legal system that is wrong. That's what "highest law in the land" means. That is the entire purpose of having a constitution.
Experts love to hide behind "it's complicated!" but in this case they have nowhere to hide.
Pull over a guy, take the paper cash out of his wallet without charging him with a crime. No amount of wordplay can make that constitutional in a reasonable persons mind.
What we are talking about here is just taking the cash, sending you on your way and spending it, sidestepping your legal rights like access to a court provided attorney or a jury trial. It probably doesn't do much to prevent crime even, the fentanyl runners would much prefer you just take the cash they have on them and let them go.
"Shall not be infringed" is a super common refrain among the 2A crowd but taken hyper literally you couldn't take guns away from criminals actively in prison.
I think civil forfeiture is far outside the bounds of what could be condoned under the Bill of Rights but my interpretation only matters at a distance of influencing representatives to pass laws or the SC to rule differently.
If you prefer a criminal matter, swap it out for fraud.
Could you give an example of this?
It's a little hard to reconcile slavery with, say, the Fifth Amendment's prohibition on being "deprived of life, liberty, or property, without due process of law".
You would've granted slave owners more votes? You feel they were under represented? If I lived in a state alone with a enough slaves I should have been able to dictate policy for the entire nation?
I would have not had slaves.
The alternative here was the articles of confederation or nothing and the states go their own ways as countries, not some fantasy in which the southern states torpedoed their own economies out of some love of the nation.
The constitution and the included 3/5ths compromise most certainly brought about the end of slavery much faster than taking a hard line circa 1790, or anything else that tipped the scales away from the united states forming a national identity would have.
You can't pretend it's not contradictory, though, in a document talking about rights and liberty, and that was the question posed.
That is what amendments do - they change things, and those ones came at no small price. So what is the point about complaining about a problem that six hundred thousand people already lost their lives in a successful attempt to resolve? Slavery has been illegal in this country for a century and a half.
No argument against your point, but a similar[0] Constitutional issue persists today:
Residents of Wyoming are established as 3.23 people for Congressional representation.
Residents of California are about 4/5ths of a person.
[0] Nothing is similar to slavery, and specifically here the fact that the voting power of these 3/5ths allocations was given to people who did not represent the interests of the humans that comprised the allocations in the first place!
> No argument against your point, but a similar Constitutional issue persists today:
Yes, a very similar issue does exist, but the one you are pointing to is not similar.
> Residents of Wyoming are established as 3.23 people for Congressional representation.
The unequal weighting of population for representation in (in descending order of distortion) the Senate, Electoral College, and House as a whole is not really similar to the awarding of extra weight to those who are permitted by the State to vote specifically for people denied liberty as was done in the 3/5 compromise.
The fact that those disenfranchised by felony disqualification are counted—and as whole persons, not 3/5—especially given the way targeted criminalization and penal servitude directly replaced chattel slavery, is, OTOH, a very similar issue.
In addition to felons (permanently disenfranchised in most states), you have temporarily-disenfranchised prisoners, and prison-based population distortions that favor some districts over others.
You could probably make an even greater comparison between the voting powers of:
- a Californian living in a district with high noncitizen population
- a Wyomingian living in a district with a large penitentiary
> Civil forfeiture allows police to seize — and then keep or sell — any property they allege is involved in a crime. Owners need not ever be arrested or convicted of a crime for their cash, cars, or even real estate to be taken away permanently by the government.
--[1]
They don't need to prove or even charge you to take property from you. It's robbery.
The law needs to require a warrant issued by a judge to sieze the property. The property siezed needs to be stored as evidence, kept separate from other budget items in law enforcement organizations so that it cannot be used to cover expenditures (through auction or otherwise), be under the same sort of provisions as indefinitely holding individuals without charges, be returned in total when charges are not brought to trial or when a trial results in an acquittal, and the material should be subject to destruction after a guilty verdict and appeals are exhausted. Basically, the siezing organization shouldn't be able to use the material proceeds as part of the organizations' operating budgets at any time unless the material is voluntarily submitted by the convicted parties in lieu of levied fines after a conviction. It is evidence, not a funding source.
I'm not saying that the government should not be able to take illegitimately gained property from convicted criminals; but that the incentive to do so for material gains by the government without conviction is rife with the potential for abuse as things currently stand.
[1] https://www.aclu.org/issues/criminal-law-reform/reforming-po....
At least this allows 1) people to litigate smaller seizures 2) creates disincentives for the more abusive cases
Someone should have to pay for the collateral policy damage. It seems that the burden should to those who voted for the policy opposed the innocent victims.