Rand Paul introduces bill to reform civil asset forfeiture | Hacker News Reader

Rand Paul introduces bill to reform civil asset forfeiture

washingtonpost.com

163 pointslsh12360 comments

This significantly changes what must be proved. Under the existing law, if the government's theory of forfeiture is that the property was used to commit or facilitate the commission of a crime, they must show by a preponderance of the evidence that there was a substantial connection between the property and the offense.

There is an "innocent owner" defense that protects the interests of innocent owners to the property. For property interests that were in existence at the time of the illegal acts, an innocent owner is one who did not know of the acts giving rise to forfeiture, or who upon learning of those acts did all that could be reasonably expected under the circumstances to terminate that use of the property. For an interest that acquired after the illegal conduct, an innocent owner is someone is a bona fide purchaser who did not know that the property was subject to forfeiture.

Paul's bill changes the requirement when the government's theory of forfeiture is that the property was use to commit or facilitate a crime to this, and modifies the innocent owner defense to get rid of the parts of it that are redundant in light of these changes:

   (3) if the Government’s theory of forfeiture is that
       the property used to commit or facilitate the commission
       of a criminal offense, or was involved in the commission
       of a criminal offense, the Government shall establish,
       by clear and convincing evidence, that—

       (A) there was a substantial connection between the property
           and the offense; and

       (B) the owner of any interest in the seized property—

        (i) intentionally used the property in connection with the
            offense; or

        (ii) knowingly consented or was willfully blind to the use
             of the property by another in connection with
             the offense

Note that under the current wording, if you had, say, a boat owned by three people who take turns with it (e.g., one owner runs the boat during the winter fishing crab, one runs the boat during part of the summer doing salmon tendering, and one takes people on whale watching trips), and one of the owners is also using it for smuggling, then the boat could be seized, but the two other owners would keep their interest as innocent owners. The net result would be the government would end up as partial owner of the boat.

Under the new language, it looks like the government has to show that all the owners were involved with, consented to, or were "willfully blind" to the smuggling. It does not define "willfully blind".

This seems to be a huge loophole. It should not be too hard for criminals to arrange for their major assets they use in their crimes (boats, planes, cars, real estate) to have a minority co-owner not connected to the crime and who has no idea the property is being used for crime and was not "willfully blind" to such use.

Or maybe not...I'm reading (3)(B) as saying that all the owners must be shown to meet (i) or (ii), but it may be possible to read it as meaning that at least one owner must meet (i) or (ii). This section needs to be rewritten.

There are still ways to prosecute those criminals without directly seizing their property and creating horrible incentives.

This reform doesn't require a conviction for forfeiture, or even a charge. It only changes the burden of proof required for forfeiture (but still below that required in a criminal trial) and addresses the perverse financial incentive.

There are two sides to every coin.

Allowing criminals to keep the proceeds of crimes also creates horrible incentives.

No one is advocating that criminals be allowed to keep the proceeds of crimes. What they are saying is that the burden of proof should be on the government instead of the current situation where guilt is presumed.

Cops taking someones property without him being convicted of crime first seem more dangerous to me.

Indeed, many forfeiture victims never get their property back, nor are charges ever filed, without which they don't have standing to sue for return of their property.

It's the new Jim Crow.

That's not correct. If your property is seized, you can make a claim to get your property back regardless of whether or not the government ever files charges against you.

Your last line is puzzling to me. Is civil asset forfeiture a set of laws designed to systematically discriminate against a particular demographic group for the benefit of the more powerful demographic group? Jim Crow was a set of laws passed by white southerners to segregate and disenfranchise black southerners, in order to establish a privileged position for their demographic group in society. Who are the white and black southerners, respectively, in your analogy?

It's not really an analogy; The divide is still along similar racial lines. Civil asset forfeiture laws predominantly impact poor black or Hispanic people. Here's what the ACLU has to say: https://www.aclu.org/criminal-law-reform/civil-asset-forfeit...

" Asset forfeiture practices often go hand-in-hand with racial profiling and disproportionately impact low-income African-American or Hispanic people who the police decide look suspicious and for whom the arcane process of trying to get one’s property back is an expensive challenge. ACLU believes that such routine “civil asset forfeiture” puts our civil liberties and property rights under assault, and calls for reform of state and federal civil asset forfeiture laws."

>Is civil asset forfeiture a set of laws designed to systematically discriminate against a particular demographic group for the benefit of the more powerful demographic group?

Probably not designed to have that effect, but it does.

Yeah, Nixon's egalitarian crooking was often 'mistaken' for a Pinnacle-Empty Quiver, at least from a minority perspective. I guess some call it plausible deniablilty: "Corporatism done it, I ain't accountable!" For others, it might be something like Manifest Destiny, or historical inertia.

Actually, that is not true at all. When your property is seized you get a single-sided notification letter, which you must sign, that very clearly & briefly articulates the claims process.*

* at least at the city level this is true; I review all the civil forfeiture requests made by a city and every affidavit contains a copy of said notification.

We're talking about civil and administrative asset forfeiture where one need never even be charged with a crime to have their assets seized.

So a non-conspirator gets a free most-of-a-boat? I don't mind that happening.

Or you're saying ownership wouldn't be lost by anyone?

The latter.

It's funny how far we've come from what our founders sought to protect us from. Did you know the fourth amendment was written in response to the prevailing asset forfeiture laws of the time period. Yet here we see it having to be spelled out explicitly in law yet again. Good for him. Hope it passes.

This article[1] points to some of the worst, systematic abuses of forfeiture. Most frustrating is that any amount of cash holdings on your person in excess of a hundred dollars or so is often twisted as evidence that you MUST have committed some crime.

In fact, forfeiture is often used as bribery - let us keep your stuff and we won't make your life even harder, which even short-time readers of HN know, if the law wants to get after you, it will find something to charge you with. Often, taking away your kids is threatened if you don't let us keep your car.

I'm not going to toss myself out there as Rand Paul's biggest supporter, but he gets my absolute support (and my phoning of my representatives urging their support) of this bill.

[1] http://www.newyorker.com/magazine/2013/08/12/taken

even short-time readers of HN know, if the law wants to get after you, it will find something to charge you with

For more, see "No One Is Innocent": http://marginalrevolution.com/marginalrevolution/2013/06/no-... . I think this part is particularly relevant:

Remember, under the common law, mens rea, criminal intent, was a standard requirement for criminal prosecution but today that is typically no longer the case especially under federal criminal law.

Everyone intuitively knows that you shouldn't hit, kill, or rob someone else, but there are now innumerable nominal "crimes" that are neither obvious nor intuitive.

"Three Felonies a Day" is a recent book which addresses this issue, and how the average adult in the United States commits three crimes which carry at least the possibility of jail time per day (on average).[1] There are tens of thousands of these offenses, and it is impossible to know all which may apply to you; even if a citizen makes an affirmative action to learn, there is no comprehensive list. Even more troubling is that many of these vague, and hard-to-find crimes do not require mens rea.

[1] http://online.wsj.com/news/articles/SB1000142405274870447150...

There's reason to believe that book is seriously exaggerating matters. Read the analysis at:

http://skeptics.stackexchange.com/q/22530

TL;DR: the examples available in the Amazon excerpts from that book are all felonies which the "average adult" would not be involved in, certainly not multiple times a day. (Unless you lead a very eventful life.)

Most frustrating is that any amount of cash holdings on your person in excess of a hundred dollars or so is often twisted as evidence that you MUST have committed some crime.

In a day and age when ATMs routinely dispense $300/day this is quite absurd.

The first civil asset forfeiture law was authorized in 1789 by the first congress for customs violations.

That's misleading.

How so? See: http://www.fed-soc.org/publications/detail/forfeiture-is-rea...

I'm opposed to the scope of civil asset forfeiture as its applied in many cases. That said, the "parade of horribles" is overblown, and contraband has always been subject to forfeiture.

You know very well, and you know why you do not deserve an explanation.

Your honor, I object!

Why?

Because it's devastating to my case!

Because the pattern of Rayiners interaction is to post something misleading by omission and then get cute about asking other people to complete the picture. Screw that.

>That's misleading.

Please explain.

Thought you'd like to know that you can vote on this bill yourself. After you do your vote gets sent to your Reps and Senators, as well as the sponsor and legislators in the committee the bill is currently in. Which looks to be the senate judiciary committee.

https://www.votetocracy.com/bills/113/s/2644/a-bill-to-resto...

This is the first time I've seen the site. I signed up and gave it a try. How does it work? Do representatives see a great number of emails from Votocracy? Is there a way for them to verify the comments are genuine?

Yes, Reps are seeing an increasing number of emails from us alone. So much so that they are consistently calling our office. In terms of verification, currently our verification is on par with anything else they are getting from either individuals submitting letters or any other method. That is, they are verified by having entered their address which is in the reps district.

We will soon take on the task of true verification though. Which means, bouncing your registration details against a voter id database.

Seems a bit premature to vote on the bill before reading its text, eh?

That's the way it's done in congress for the official vote, so why not?

Bill text will be available on that site soon: https://www.votetocracy.com/bills/113/s/2644/a-bill-to-resto...

The full bill text is usually available through the site. If in this case it is not, just wait a few days, it will get posted. Sometimes it takes a few days for the sponsor to post the actual text when the intro a bill

I can't say I understand the difference between "a preponderance of evidence" and "clear and convincing evidence". Who judges these terms now? Does the accused get a defense? Appeal? I don't understand why forfeiture isn't one of the natural penalties of a conviction in a criminal trial. I do like changing the financial incentives, however.

edit: A number of people point out forfeiture can occur without a conviction or even a crime being charged. This reform doesn't change that. It changes the burden of proof from preponderance of evidence to clear and convincing evidence (and addresses some of the perverse financial incentives). These are both less strict than "beyond a reasonable doubt", which applies in criminal proceedings. (See watwut's link to Burden of Proof below.)

What I'm saying is this reform is weak, and it would be better to treat forfeiture like any other criminal penalty.

Preponderance of the evidence is balance of probabilities. E.g. if it is 51% likely that you did it, it is assumed you did it. Clear and convincing evidence means that it must be highly and substantially more probable that you are guilty in order to be assumed so. E.g. 51% would not do it.

In any case, forfeiture was done to people who were not even charged with anything, much less convinced of a crime.

Both are legal definitions. Convenient wiki: http://en.wikipedia.org/wiki/Legal_burden_of_proof

Thanks for the explanation and the link!

> In any case, forfeiture was done to people who were not even charged with anything, much less convinced of a crime.

It looks like that isn't changing under this reform.

It looks like that isn't changing under this reform.

Which would seem to be one of the worse problems with current law, no?

You do not need to be charged of a crime to have property taken from you under civil asset forfeiture. It's possible to contest the forfeiture in court but that requires an expensive legal battle in a place you might not live (many of these occur on the highway), against a government with far more time and resources.

The money, at least a large cut of it, goes to the municipality that siezed the property. In some small towns this is abused to fund their city government.

It's important to remember that in an asset forfeiture case, the "accused" is not the owner of the item, it's the item itself.

http://en.wikipedia.org/wiki/United_States_v._$124,700_in_U....

Some information about civil asset forfeiture for those who are interested:

A 2010 report by the Institute for Justice: http://ij.org/policing-for-profit-the-abuse-of-civil-asset-f...

A 2008 report by the DOJ which makes some surprising admissions: http://www.cops.usdoj.gov/Publications/e1108-Asset-Forfeitur...

This is terrific news and long overdue.

Wonder if this was in response to the recent bit on the Daily Show. http://www.hulu.com/watch/664573#i1,p12,d1

I would suggest posting this under the HN clone SwintonReport.com...

I would like to call for the establishment of a Department of Liberty, with 50% of DHS and other intellifence and law enforcement agencys' funding being diverted into its formation. Its function would be twofold:

1) an army of civil rights defense attourneys to counter the DOJ, DHS, etc.

2) a force of federal agents who have the authority to interefere with any federal, state or local law enforcement activity, but completely lack the ability to touch citizens. Their sole mission would be to detain law enforcement officers suspected of abusing their power, raid illegaly acquired/held state confiscation staches, liberate detained civilians, confiscate/destroy/release government secret records, interfere with unlawful border patrol, and execute on the spot any law enforcement agent caught in the act of violating person's civil liberties.

They will watch the watchmen.

execute on the spot any law enforcement agent caught in the act of violating person's civil liberties.

Yeah, there's no way that could go wrong.

> execute on the spot any law enforcement agent caught in the act of violating person's civil liberties.

Surely this rule would create a rather suicidal agency? Or is due cause no longer a civil liberty?

That last item was a bit hyperbole.

In theory that is why each agency has an office of inspector general. they are supposed to police abuse, fraud, and waste in these agencies. However however they still report to the head of that agency and ultimately the AG and president.

Not enough independence. Need an entity that reports to someone outside of the chain of command and has as much teeth as the executive.

That is called congressional oversight.

That's what the judicial system is for.

I'm not sure if GP's suggestion is actually viable (the whole "who watches the watchers" problem, and there is no way funding to the new department could match the existing departments - ie at best, it will not be that effective).

However, I've always thought that judicial system is a mean to check the legislative branch (rather than executive). The reasons being that judicial system has no mean to enforce/ prevent wrong doing (legislative can cut funding), and they also have no way to proactive prevent any wrong doings from happening (you can't do investigation, and anything that reaches the court necessitates a lawsuit).

The Judicial checks the Executive in that the Executive is tasked with brining people before the Courts. The Courts decide if that person should be punished in accordance with the laws, but they can also rule on the behaviour of law enforcement in accordance with the laws too.

I've wondered about that angle too. Maybe the Judicial branch should have its own enforcement arm. SCOTUS does have its own police force.

Sure, provided that you are independently rich.

So your solution to the problem of government overreach is to create a new government agency?

The only "department of liberty" is you, and me, and other citizens. We're sovereign under the U.S. system of law; empowered to make change in a variety of ways.

But we have to do it. There's no way around the fact that a democracy is only as good as its citizen activism. There are some things you can't outsource or delegate.

If only that were so, and if only that were enough. Sadly the steady rise of the militarized police state begs to differ.

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