The US legal system (unlike some other countries) is built on the presumption of innocence. Civil forfeiture completely contravenes that principle and is therefore essentially extortion and corruption.
There was a case a few years ago where the parents lost their house because their son once was caught with drugs in the house.
Crime is crime. If they don't take custody of a house because some kind of crime X happened there, they shouldn't do it for drug related cases either. They can always arrest the person dealing the drugs and forgeit the drugs themselves.
You really have to twist that in bizarre ways to come out saying "yeah but we can seize that guy's money."
Of course someone in power is going to try and twist the meaning to their own gain.
That inevitable desire is literally why the rights needed to be included in the first place.
The US is deeply flawed but generally speaking we have a lot of rights
That's what the amendment system is for.
That's one of the problems with a codified constitution that's as ossified as the one in the US: the language used gets interpreted, and so the meaning of the language depends on the interpretations favoured by whoever's currently holding the reins.
It’s only appropriate when any private citizen could do the same thing. IE: The Army suing a supplier for supplying them with a defective bullets is they same thing anyone who buys large quantities of bullets could do, but people would need to voluntarily enter into such relationships before this applies.
https://www.washingtonpost.com/news/true-crime/wp/2017/11/02...
Like how you're legally supposed to not have an "expectation of privacy" for your mail, because it's handed by the post office...
The loophole is that money, unlike most other inanimate objects, isn't considered "property".
Any fine should have the option of a court date attached in order to follow due process, like a traffic fine. But many types of fines don't have the presumption of innocence, or the day in court prescribed. Civil forfeiture is an extension of that process, also relying on the fact that money isn't property so taking it away doesn't violate the "no person may be deprived of property without due process of law" constitutional article.
It's an easy way of declaring ones badassness.
Looking at Mr T, people had to ask themselves, "What kind of person feels confident enough to walk around with that much money on his neck?"
That is correct, but you need to understand the context. It originated in the 1600s as a way for maritime law to deal with pirate/smuggler ships who were operating in international waters, not flying the flag of any nation, and with no registered owner. Charging the ship and its contents with the crime rather than an unknown individual made sense in that context. Applying it to a car registered in the United States, driving down a highway in the United States, and being driven by a US citizen makes absolutely no sense because standard law can and should deal with that situation.
To me it's a leap too far to assign it to a specific object. It has no ongoing operations, it's not a fluid, "living" thing.
But here we are. This is where a more modern supreme court ruling would come in handy I guess.
I'd hate to see how this modern supreme court rules. Odds are likely to be in favor of keeping this policy, especially if some of that money is used to buy an RV or fund fancy vacations
Why not hold the captain of the ship responsible for loading illegal cargo? Isn't this the whole point of a ship's manifest, to record what's on the ship? Like extend it slightly more to also record the legality.
> Why not hold the captain of the ship responsible for loading illegal cargo? Isn't this the whole point of a ship's manifest, to record what's on the ship? Like extend it slightly more to also record the legality.
Just because an airline lets you fly somewhere, you can still be rejected at the other end. I think it's a bit much to expect every captain to know the legality of everything in their hold, to all destinations, and enforce that.
Is it too much to ask? They should be offloading that to whomever they're getting the cargo from and whomever they're getting their cargo from should have a valid import/export license which means they're willing to go through the steps to ship cargo legally.
Our daughter was going overseas and we had to get her passport renewed because it would expire 3 months after she would have gotten home. The country was fine with that but there was a chance that she would show up at the airport and the airline would not allow her to board because it was less than 6 months.
If the airline lets them fly and they're rejected, the airline has to get them back and the airline doesn't want to risk that.
yeah, I know that's the argument, but it flies in the face of all reason
It comes from "we know you're guilty but we can't prove it so we're going to take your stuff away". But that's what presumption of innocence means -- if you can't be proved guilty beyond reasonable doubt then you're not guilty, period! (You might in fact be guilty, but under the law you're not guilty.) Otherwise, there is no presumption of innocence and the police can do whatever they want, just like in some countries where the police are a law to themselves.
Previously, if you refused to talk to the police, that was considered invoking your fifth amendment right against self incrimination, hence the standard advice from attorneys to keep your mouth shut until they were present. Now, you must explicitly invoke it every time the police question you or your silence can be used against you, even if that silence was in response to informal questioning on the street with no intention of arrest.
It all makes sense when you consider how privileged the modern Court is: few of the justices in 2013 or today have actually worked as criminal defense attorneys, and only one has ever worked as a public defender (Ketanji Jackson, for two years; I will give Ginsburg credit for her work at the ACLU, but that is still a notable step above being a public defender). We haven't even had a justice whose read the law (became a lawyer without getting a law degree from a law school) since the death of Robert Jackson in 1954. (Robert Jackson is also the man behind the famous quote "any lawyer worth his salt will tell the suspect, in no uncertain terms, to make no statement to the police under any circumstances.")
Now, almost all have come from privileged backgrounds, went to Ivy League institutions, live in gated communities, are completely detached from the reality of what the average American knows about the law, and certainly aren't going to be taken advantage of by the cops. It's no surprise we've seen such an assault on our constitutional rights: they don't understand what life is like outside the ivory tower.
In Brazil we have a problem with the Judiciary too, most of it is completely detached from reality, due to these exact same reasons.
That's easy to refute. By the time they take the cash, hand it to the feds, get a percentage back to locals, then a person wins in court and gets their money back... I don't think they give back the exact same physical cash that was taken as "evidence". So when they say it's evidence they are lying - it's not locked up with other evidence, it's taken to a bank and deposited.
Like which? Presumption of innocence is pretty universal around the globe. It has made its way into Western nations and parts of Asia via Roman law and is also a principle of Islamic law. There used to be some historic outgrowths that could be called presumption of guilt in England, but even that was more similar to civil forfeiture and not an actual guilt-based legal system.
> You do not have to say anything. But, it may harm your defence if you do not mention when questioned something which you later rely on in court.
I read that as "Holding back information that may be pertinent in an investigation will be looked upon poorly".
It's not like the US is any better here - If a charge is trumped up or has bolt-ons to get you to take a plea deal, it's exactly the same thing, if not worse.
Silence can’t be used against you.
That is better than silence being used against use.
Conflating that with trumped up charges is irrelevant to that point.
Do you have a source for that?
It also seems like he succeeded, because the original and all reuploads except for some ultra low-quality copies are gone from youtube.
And also, the original lecture isn't a reupload but found on the channel of his own university (both at the time of the first and the second lecture): https://www.youtube.com/watch?v=d-7o9xYp7eE
Damn, you need to watch it again. He only updates the advice to say that one needs to be explicit about their intention to remain silent and await an attorney.
I didn't know that, that's pretty interesting.
> Because in the real world that strategy is more likely to get you convicted after all.
I don't think that's true. That's true for not cooperating, but you should do so with a lawyer. You shouldn't' talk to police until you get a lawyer. That's all.
It sure can, but in more hypocritical and roundabout ways:
The cops take suspision on your silence, and push extra hard to get you, instead of letting you go after a routine questioning.
Or the prosecution is offended by your silence and throws the book at you.
Technically both get to swear that your silence was never an issue, while both being motivated to fuck you over because of it.
They're two sides of the same coin. Let's say you are being accused of crime X, and you know you're innocent of it, and can prove it, because your spouse did it/you were hooking up with a congressman on grindr at the time/you were doing something else illegal you don't want to admit to/you believe the US justice system is fair and impartial.
The sentencing for said federal crime is N years. The prosecution charging you with crime X, plus Y plus Z with a potential max sentence of M years, or you can take a plea for N-2 years".
It all boils down to "are you willing to gamble spending M (where M >>>> N-2) years in prison based on an accusation designed to intimidate you".
> Silence can’t be used against you.
As sibling comments have mentioned, not (no longer?) true.
"Opinion recap: If you want to claim the Fifth…"
> Because merely keeping quiet when police ask damaging questions is not claiming a right to silence, the Supreme Court ruled Monday, prosecutors may use that silence against the suspect at the trial. If an individual is voluntarily talking to the police, he or she must claim the Fifth Amendment right of silence, or lose it; simply saying nothing won’t do, according to the ruling.
* https://www.scotusblog.com/2013/06/opinion-recap-if-you-want...
"Silence as evidence: U.S. Supreme Court holds that the Fifth Amendment does not bar using a suspect’s silence as evidence of guilt"
* https://www.lexology.com/library/detail.aspx?g=61f0c293-44b7...
Could you explain how one can exercise their right to silence without holding back information?
except in "rule by law" (as opposed to "rule of law") countries like China where if the police say you're guilty, you will be found guilty, 100% guaranteed
But doesn't the CA law explicitly acknowledge this by saying if the TX law is ever knocked back the CA law automatically becomes null and void?
Either way, my point was that civil laws seem to be increasing in favor when the politicians and interest groups haven't been able to achieve what they want through the criminal side. Abortion and guns tend to showcase this most as they are the most contentious issues.
That's a cute story, but it still goes directly against the 4th amendment, which make no distinction between criminal or civil or any other "type" of law.
Forfeiture is the end means of seizure.. usually. Forfeiture does not require a court case. Forfeiture can, in some circumstances, be determined without a court case. Most often and fairly universally means when no one offers a claim on seized property.
I have read on this a many times myself and have conflict with it. I started off with naturally believing it is violation of 5th + 14th amendments. I only hold now that it is likely a violation of the 14th, but its quite complicated.
Seizure in this sense ought to be illegal given no due process. However, SC has opinions that property itself can be ruled against. Further, has ruled in many instances that innocent owner defense is not sufficient, thus innocent owner must prove that the entrusted party acted out of consent/contract.
I recommend reading 983 article guidelines for asset forfeiture/seizure: https://www.law.cornell.edu/uscode/text/18/983
It is not simple, at all. Most guidelines really are in favor returning property. IMO, timelines could be adjusted so they are a bit harsher on government considering speedy trials are not so speedy anymore.
I'm not a lawyer of course
A legal system is designed to advance a purpose: justice, the protection of citizens, etc.
Assumptions of guilt or innocence aren't immutable laws of the universe. They likely simply reflect prejudices held at the time of creation, or inherited from even older systems, like Roman justice.
This story doesn't hint at corruption or extortion: a plausibly innocent man was swept into a forfeiture system that didn't work as it should.
And I'm arguing that the forfeiture system itself contravenes the principles of justice on which the US is founded.
Have you lived in countries where the police can just take away your stuff without recourse because they are a law unto themselves? I have. Trust me, it's no fun.
https://en.wikipedia.org/wiki/Civil_forfeiture_in_the_United...
If you are an innocent person carrying the suspected proceeds of crime, and can prove it's not from a crime, you should not be impacted.
Recourse is built into the civil forfeiture process, afaict. This article is, as I read it, a case of a man using the channels of recourse successfully.
Your portrayal of the police as an arbitrary force that seizes things without recourse is, I think, incorrect.
the problem is that this shifts the burden of proof of innocence on you, instead of the burden of proof of guilt on the authorities. They can say "we have reason to believe you committed a crime to obtain this" and there's not much you can do except to prove them wrong. That goes against "unless you can prove I have a committed a crime, I have committed no crime". That's what I take issue with.
> Your portrayal of the police as an arbitrary force that seizes things without recourse is, I think, incorrect.
You're probably right. There is recourse and procedures, so not quite Wild West level lawlessness. But the system is very much rigged against you if for some reason the police believe (rightly or wrongly) that the assets were obtained illegally or used in illegal activity. And it very much facilitates police corruption since their burden of proof is so low -- who is to say that the police is wrong?
The history of civil forfeiture in maritime law suggests it arose when you captured a pirate of smuggling vessel. They are loaded with stolen or illegal merchandise. The owner of the vessel is in France. You seize it and send a letter to him saying "hey, if this is yours, come get it and tell us why you have it legally. Otherwise it's ours."
2. Lots of things facilitate corruption. This might be one of them, but even if we eliminated it, corruption isn't likely to go away (it is not the unique driver of corruption). Moreover, it may not be even a particularly significant driver of corruption in general (there may be specific cases where it is) - so removing it wouldn't impact all the forces that generate corruption. So removing it would have little or no impact.
That said, if the perception is that it is a corrupting force, it would be useful to make changes to make it seem less so: have all proceeds go to FEMA, for example, instead of back to the departments. Or specify how the recovered moneys can be spent - on buildings but not salaries - like jail improvements- so specific people cannot uniquely benefit.
And if corruption is the problem generally, addressing it directly is likely to be more effective than eliminating civil forfeiture and letting corruption go unchecked otherwise.
It makes more sense when you ask "Who bears the burden of these loopholes?" and the answer is always "They disadvantage people of colour".
You are being dismissive of the issue though; and it's never helpful.
Generally the burden is on the person making the positive claim.
> I'm happy to simply continue to hold a different opinion to you.
Sure, I have no qualms taking your opinion as just speculation/belief/Ameriphobia.
> You are being dismissive of the issue though; and it's never helpful.
Strong claims require strong evidence. Without evidence it's reasonable to dismiss.
I don't regard this as a "strong claim" requiring "extra-ordinary proof". Technically it is a claim, I suppose. Many statements are. I strongly disagree that it any of "speculation" or "Ameriphobia". Those are emotional language, strong claims about me that you throw out. I won't go into biographical details why those just don't fit. And they are, yet again, dismissive.
"All countries are the same" Is quite a claim though. You seem defensive.
"require" makes it seem like I'm obligated though. Counterpoint: as the wise man said regarding when someone disagrees with you online and demands you prove your point: "I've known you for ten seconds and enjoyed none of them, I'm not taking homework assignments from you."
With, as I said, good reason. That's important.
> I don't regard this as a "strong claim" requiring "extra-ordinary proof".
Not extra-ordinary proof, proportional proof. For a strong claim, strong evidence.
Saying the US has more loopholes than other developed nations that exploit and bypass the legal system and checks and balances in place compared to other developed nations is indeed a strong claim.
> Technically it is a claim, I suppose. Many statements are.
Many statements are opinions. Many are speculation. Some are claims. Some are strong claims, like this one.
> I strongly disagree that it any of "speculation" or "Ameriphobia".
Ameriphobia is a possibility, not an accusation. Until you are willing to support your claim, it's entirely reasonable that I should only take your claims as speculation.
> And they are, yet again, dismissive.
Because there is reason to dismiss, because you don't want to support your claim. Even though it would have been less effort than typing your last reply, and less effort than typing your reply to this comment, especially since I'm sure you'll respond to each individual point.
> "All countries are the same" Is quite a claim though.
That was never my claim. That's a strawman fallacy and nothing else.
> You seem defensive.
Just not a fan of wild claims that lack evidence.
> "require" makes it seem like I'm obligated though.
In the sense of any obligations inherited whenever implicitly agreeing to engage in civil debate, it is.
> Counterpoint: as the wise man said regarding when someone disagrees with you online and demands you prove your point: "I've known you for ten seconds and enjoyed none of them, I'm not taking homework assignments from you."
Supporting a claim isn't homework. You calling it homework is you attempting to shift the burden of proof onto me, which is dishonest.
It's an observation, not a PhD thesis requiring academic defence.
I strongly advice you to get a grip on yourself.
If any of this is unclear, you can re-read above comments.
Nothing more to say.
In theory yes, but in practice, I had to plead guilty to get out of jail after spending 6 months in jail, otherwise I would have had to spend another 6 months in jail just waiting for my trial.
So you are presumed innocent but they don't mind keeping you in jail anyways.
I hate civil forefeiture, but let’s not get lost in hyperbole. It facilitates extortion and corruption, but so can almost any police power. The problem is in its conflicts of interest and abridgement of due process, particularly, that of elevating probable cause to grounds for the public taking of private goods without compensation.
I'll add taxes to the list.