The Problem with Civil Asset Forfeiture (2016) | Hacker News Reader

The Problem with Civil Asset Forfeiture (2016)

papers.ssrn.com

129 pointsTaurenHunter62 comments

The expression "this is why we can't have nice things" comes to mind. Like their FISA powers, spying on communications of journalists with surveillance powers, political abuses within the IRS, etc the government has massively abused asset forfeiture as well and we should return to a liberty centric mindset. No forfeiture without conviction by a jury.

"If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."

The government has proven they aren't angels we can trust.

We obviously can have nice things if we just join the police force. Other people's nice things.

The problem with civil asset forfeiture is that it’s theft and it’s unconstitutional (violates due process and arguably is a “taking”).

How does it survive? Is it that there hasn't been a big enough legal challenge against it?

It dates back to British maritime law from the 1600s and pirate ships on the open sea. When the owner of the ship was unknown and likely residing halfway around the world, the thinking was just seize the ship and charge the property itself with the crime. Obviously this makes zero sense when applied to an American citizen driving their car down a public highway with some cash in their possession, but here we are.

Because cops get to drive around in sports cars repainted black and white. Every Corvette squad car you've ever seen out on the highway is one of those. I'd bet money that some large fraction of the world's largest television screens reside within police station break rooms, too.

Police unions don't play around either. If a politician were to play hardball, some small town or another would just go without a police force at all until it cried uncle, anyone at the state level trying it would simply see insane amounts of cash dumped on their rivals' campaigns and lose, and Congress can't even muster up the ambition to pass feel-good-do-nothing resolutions on its best day, not even one of which we've had since either of us became adults.

You act like this is just city level. That would still be a relatively easy fix. But federal organizations like the FBI routinely benefit from asset forfeiture. People traveling with large amounts of cash for any reason are a common target. And if you think TVs are are something, imagine the hauls from a large scale federal bust.

> But federal organizations like the FBI routinely benefit from asset forfeiture.

Oh, but that's a little different. Worse of course, not different for the better.

As states do prohibit asset forfeiture, the FBI can dangle it back in front of the locals with their "sharing" program. It's the federal government interfering with state sovereignty to undermine it. They've soft-federalized every single municipal police department and every sheriff's office in one fell swoop.

The argument as to why it's constitutional is something like this: The constitution keeps the government from taking your stuff. This was never your stuff, it was stuff you just happened to have in your possession. Therefore, there should be a civil trial over ownership of this stuff to determine whose it is, and if it's not yours the government can take it.

The key points here are that there should be a trial, that it’s up to the government to prove that the stuff is not yours, and that the taking happens after the trial.

CAF inverts all of these. They take your stuff, sometimes they allow you an administrative hearing, and the burden of proof is on you to prove that the stuff is actually yours.

Because politicians trust politicians to use it responsibly or failing that, to use it where necessary

Left/right politicians will lean in the generally expected directions on what things they would stop with it and what ways they would responsibly use the proceeds, but reasonable people could be convinced that the only problem with civil asset forfeiture is that it doesn't protect the innocent from its consequences -- and that's not too far off the mark, but that it can be used without having to wait for its victims to have exhausted the appeals process to it at first is the cancer from which all its other ills originate

Wouldn't much of the perverse incentive be fixed if the assets were transferred to some other organization, such as the central state or federal budget.

This already happens sometimes. The local PD will seize money, 'transfer' it to the the state or federal government, and then claim "Well, we can't give you the money back, we don't have it anymore. You'll have to sue the other guys instead." And of course frequently in such situations the state or the feds will say that you have no standing to sue them, since they didn't take your money, so you have to sue the PD. Enjoy being pulled over every other week by your local PD because you _dared_ to even challenge them legally.

It doesn't really matter where the assets end up. The perverse incentive is that the assets can be trivially seized with no consequences at very little cost to the power structures doing the seizing. What is the incentive for a person or group to stop stealing when there is no possibility for any negative consequences to them? Morals, ethics? There are plenty of people in positions of power who would get a kick out of causing someone else pain and suffering because they're bored.

TIs the decision of where to send the money made on a per-case basis by the local PD?

If so, that sounds like just one more option to seize for profit or harass if the case is too weak.

I still think if the only option is to transfer, the general incentive structure is improved. Stealing with profit motive plus harassment is worse than stealing just for harassment.

I also think in general, to effect change, to campaign for a single thing, easily explained, is the most successful approach.

> I also think in general, to effect change, to campaign for a single thing, easily explained, is the most successful approach.

What part of 'You can't take people's stuff without first proving it should be taken, in a court of law' is hard to comprehend? There's no need to over-complicate the argument that this is blatant state-sanctioned robbery and deprivation of property without due process.

The funds usually go into a slush fund that benefits the PD while not being under its direct control.

Removing the financial incentive for law enforcement to abuse CAF would be an improvement. You'd need to ban any bonus to individual officers for CAF, and make sure 0 funds make their way bank to the PD (i.e. no budget increases for CAF activities).

But I think it would a better idea and more effective to eliminate Civil Asset forfeiture and only allow Criminal asset forfeiture. If you think the funds are illegal, charge someone and prove it.

How would you stop that from being re-invested back into the police force? If a state knows that they get $50 million from assets seized by the police, there's a very strong incentive for them to approve that $25 million budget increase the police force requested.

The article also suggests that the law is just inherently unjust: "Objects do not commit crimes: people do." Also: "Since civil forfeiture requires less evidence and offers fewer protections than criminal forfeiture, the former is more vulnerable to abuse than the latter."

As for your first paragraph, the feedback loop will be much longer both in time (state budgets) and in distance - the risk of the proceeds ever directly benefitting the sheriff, officer or precinct is very low.

As for the second argument, I agree, it can be used to harass people.

Punitive fines, that is, those which are meant to create a change in behavior rather than compensate for a loss, should be destroyed. If an entity is fined $10 million, collect the money and "destroy" it. The money supply decreases by $10 million and everyone is ever so slightly wealthier at the expense of the offending party. Note that this is separate from fines meant to compensate a victim for their loss and suffering. It's only for the punitive function of a fine.

Destroying money is isomorphic to giving that money to the level of government controlling the central bank (with some extra busy-work). The central bank obviously has the option of simply creating an equal amount of money, and may in some rare cases be forced to do so in order to avoid deflation.

Giving that money to the level of government that controls the central bank is probably an improvement for incentive alignment over letting local governments keep it. Destruction just may not be the best way to accomplish that.

I'm not sure there's much difference, in theory or in practice, between destroying money and giving it to the government!

That sounds a bit anti-government but really I just meant that the money raised from fines isn't a significant part of the government's total budget so it's unlikely to have much influence on policy. Voters would pay more attention to the fines themselves than to anything that could be achieved with the money raised from them.

It might not be a significant portion of “the government’s” money, but it can be a significant portion of a local government’s money. Think of speed trap towns.

Speed trap fines should also definitely go to the state coffers, not to any one PD. Speed traps should discourage speeding in critical places, not be "financially gerrymandered" in mis-designed intersections to optimize revenue for a starved PD.

IMHO it's weird that the police even has something to do with speed traps, those should be handled by Transportation Department or some such.

Mm.

On the other hand, governments get to print money if they want to, and they have reason to. This might work, but I suspect mostly it would be a complex way of doing nothing, thanks to the literal-money-printing option.

Punitive fines are fine, but they need to be scaled by income and wealth (to discourage picking only on the weak), and the concept of "innocent until proven guilty" needs to apply.

My understanding of the US problem with civil asset forfeiture is that money can be guilty until proven innocent there (and by its nature it's obviously not a fine).

This is brilliant and I'm excited to see it- especially for small fines. The way to do it is to require the punished party to bring cash, for the payment to be verified and recorded, and then publicly destroyed. This could lead to not only local governments and police no longer having horrible incentives, but also people believing that they no longer have horrible incentives- the verifiability is simple but important, like paper ballots.

Just on a tangent here I'm just wondering about the accounting process and mental gymnastics required to "destroy" money in the modern world with digital transfers, etc.

Can you have a process where a bank balance is decreased without transferring the money somewhere else? Do you have to buy cash and then burn it?

Cash and burn is the way to go, you want something locally verifiable but globally hard to track

Give it to the central bank.

Maybe this is a use case for crypto. You can buy bitcoin and destroy the key.

That would do it. Although your would be incrementally pushing up the value of the remaining crypto which would be considered a bad side effect by many people.

"Buying crypto" is not a step in literally destroying money because the dollars used to buy crypto don't vanish, you just give them to the person selling you the crypto.

You would need to withdraw the dollars as cash and then set fire to the bills. That would destroy them by taking them out of circulation. If you exchange them for literally anything else you want to destroy, you're just changing ownerhsip of the money, not destroying it.

It depends if you count cryptocurrency as a currency; if you do, then it deflates that currency.

Similarly, if I have some Euros, use them to buy USD banknotes, set fire to the USD banknotes, that deflates USD but not Euros. (Would that inflate Euros instead? Or deflate both?)

Looks like a perfect opportunity for a citizen's dividend. Anything that is taken is put into a pot. After a certain time all of that is given back equal to all citizens.

Which is a terrible idea if you consider it for more but a moment. Makes it very easy to abuse a minority population, because now not only does the majority just get to abuse them, they get to profit off it too. Sure, the minority group might get back some of what was taken, but it won't even be close to equitable compensation for what was actually taken.

What happens when they discover the forfeited assets are timeshare condos?

That upplays the financial incentives and downplays the psychological incentives. Cops seize stuff not only to have the money or shiny stuff, but also for the rare trill of punishing "bad people". In their job it is extremely rare to get the "job accomplished" endorphins, they see too many "bad people" (either real criminals or perceived as so by the cop) go free. So they create scenarios in their head about how the person is a criminal and then get the immediate endorphins for punishing the "criminal", restoring cosmic balance to their world. It is the old "do action -> get endorphins" mechanism, and if allowed cops will continue doing it even if you remove the direct monetary incentive.

That just shifts the incentive up thee governance hierarchy a little bit. The only way to remove it would be to prevent the government from both benefitting from it in any way, or controlling who else benefits from it. Something like donating the proceeds to randomly chosen 501c3s. The same perverse incentive exists for all other government issued financial penalties as well, they're just seen as less unjust.

No. Whomever benefits from it will find a way to incentives the people who actually do it.

no. law of unintended consequences.

the time this transfer is formalized, the powers that be will start reporting on it.

And when something is reported on and makes someone promoted, you can bet it will be pursued aggresively

Due process does not mean that, in theory, you could sue to get a trial, but that in practice you can not afford to.

Procedural Due Process does, substantive due process does not.

That's from 2016 and AFAIK the law regarding civil asset forfeiture changed a bit (for the better) since then in the US.

That's only at the federal level. State and local law enforcement are free to carry on as usual.

Check your local laws. Many state and local law enforcement was relying on the federal laws because their local laws didn't allow this already (or did but in restricted from and so using the federal laws was the easy option). But many is not all and I have no idea what state you might live in.

Evidence laundering is probably as bad as this.

The problem is stretching, and often exceeding, the protections of the system to achieve some "good".

They push things into civil court since you lack protections there, such as no right to an attorney and ex parte hearing. Can't prove a crime was committed - civil asset forfeiture. Can prove conspiracy or threats - red flag laws. TX abortion law, CA proposed gun law based on TX abortion law, etc. We'll see plenty more of this.

Due p

Just to provide a contrary (or tempering?) opinion about the broader context --

Civil asset forfeiture seems to be loved so much on Reddit as some kind of evil boogeyman that's coming for each of us, by corrupt police forces stopping you just when you happen to carry cash around from selling your car, or things like that. It's talked about as if people were getting struck by lighting or bitten by sharks every minute in the US.

But the actual cases of this tool/legal mechanism being used are incredibly rare. The paper linked doesn't even go into any stats on how often this happens. It talks about this in isolation as a legal oddity to be fixed. And, sure, it may be worthy of fixing.

But in the popular understanding (admittedly, a specialized, weird-threats-in-our-country understanding) this remains a topic that, like many other things, has harsh and extreme or unfair sounding impacts on people but is actually extremely rare. But it grabs headlines among a certain class of internet news readers. You're statistically not going to face this in reality in your lifetime.

From a quick look online: federal CAF has gone from ~$100m/year in the 1980s to ~$4B/year by the mid-2010s. It’s hard to find more recent numbers that don’t combine federal and state forfeiture, but the general trendline is positive. That alone makes it a reasonable target of public interest, especially against the backdrop of larger civil liberty changes in the US.

(Besides, “it won’t happen to you” is not a good argument. It’s very unlikely that a cop is going to shoot me for looking suspicious, but I have a civic interest in other people not being victimized.)

$4B/year is more than all the jewelry and precious metals stolen each year[1]. Should we not care about jewel thieves?

[1]: https://www.statista.com/statistics/252440/property-stolen-a...

But that's just the $ value. Has the incidence of innocent people been growing with that number?

Assuming it's covariant with per-seizure asset size and overall false prosecution rate, yes. To believe otherwise, you'd need to believe that the U.S. population has either grown 50x or that we're doing roughly 50x more (asset-connected) crime per capita, which doesn't seem very likely versus the late 1980s.

(But again: this is a bad argument. People rightfully get mad about all kinds of terrible things that happen to one or two people at a time. They do that because they (1) can visualize it happening to them, and (2) have a sense of civic righteousness. We shouldn't need a mass violation of civil liberties to get fired up about wrongs, should we?)

What makes you think it's rare? The Institute for Justice says that:

> In 2018 alone, 42 states, the District of Columbia, and the U.S. departments of Justice and the Treasury forfeited over $3 billion.

https://ij.org/report/policing-for-profit-3/pfp3content/exec...

That a lot of money. They also say:

> The low median value of most forfeitures is in line with media reports about forfeiture activity. For example, from 2012 to 2017, Cook County, Illinois, law enforcement conducted over 23,000 seizures totaling $150 million. The median value of these seizures was just $1,049, and approximately three-quarters of the seizures were of cash (most of the rest were vehicles). Many of these seizures, including most cash seizures of less than $100, were clustered in the poorest parts of Chicago.

https://ij.org/report/policing-for-profit-3/pfp3content/forf...

If that's rare, what is common? Do you think anyone else in Cook County, Illinois stole anywhere near as much or as many times as the government did during that period using civil forfeiture alone?

You're technically right that you're statistically unlikely to face civil forfeiture in your lifetime, but you're also statistically unlikely to face burglary, mugging, or any other form of non-state theft (except maybe pick-pocketing), but that doesn't mean those things are particularly rare or not something we should worry about.

We have to rewrite a state law in Nebraska due to one county west of Lincoln abusing civil asset forfeiture.

https://www.1011now.com/2024/02/02/lawmaker-seeks-ban-practi...

Timely.

It’s highway robbery plain and simple. One does not need to contemplate the rarity of a thing to recognize the evil. Besides, it’s not rare and that you think it is speaks volumes of your knowledge of the subject.

Here’s an analogy: would there be cause for alarm if the police randomly pulled over and killed people for no reason? You couldn’t complain about it. There is no recourse. This is practically the same. The police can and will seize your life savings and say “your money is guilty of a crime but you’re free to go, have a nice day”. How on earth are you ok with that even if it was rare, which it is not?

They don’t even bother trying to prove anything, the fact you have a large sum of money is proof in their corrupt eyes. Some police forces get a majority of their money via this stealing, that should give you an idea of the magnitude of the problem.

To top it all off they don’t even stop criminals from trafficking money. It’s all just to fleece citizens. Pure evil.

Total federal civil asset forfeiture passed losses from burglary in 2014.

https://www.washingtonpost.com/news/wonk/wp/2015/11/23/cops-...

I'm statistically unlikely to be forced into arbitrary solitary confinement, or to be put on death row for a crime I didn't commit.

Nevertheless, these aren't exactly "rare" occurrences, and I think they should be rarer still.

https://www.washingtonpost.com/news/wonk/wp/2015/11/23/cops-...

2015 statistics. Sadly in $ rather than cases/persons, so it's a bit hard to compute p(victim of seizure) vs p(victim of burglary) from here. But certainly suggestive.

It does suggest that this is on roughly the same scale as burglary.

> getting struck by lighting

  That is the worst!  Particularly low lighting, I hit my head often.

I hate ragebait and fear mongering (fearbait?) too. Playing devil's advocate, how do you get enough people to care without the manipulation?

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