For a small amount of money, it is not worth it to some people to invest the time and money to sue the state to get the money back. For those that can afford a lawyer and a lawsuit, there is (Constitutional) due process.
The remedy lies with the legislatures to add a criminal element, to reverse the burden of proof, and to add an interest penalty to losing agencies.
As for the article, it is a novel idea. I would think that the amount and type of official corruption would be a better indicator of a state in decline.
It is worse than that. The money is what is charged, not the person. So the money has to prove itself innocent, which is pretty much impossible. If you hire a fancy lawyer, you might be able to fight on the money's behalf.
It seems so weird that had one read it in a fictional story, it would've broken one's suspension of disbelief.
I'm not convinced you're entirely correct in saying that "the money isn't charged" either. So far as I can tell, the idea that the money is in fact being charged is an important part of the legal justification for asset forfeiture in the absence of an actual criminal conviction, or indeed actual culpability on the part of the owner. From Bennis v. Michigan (which you mentioned in another thread):
"On the Government's appeal from the Circuit Court's acquittal of the vessel, it was contended by the owner that the vessel could not be forfeited until he was convicted for the privateering. The Court rejected this contention, explaining: "The thing is here primarily considered as the offender, or rather the offence is attached primarily to the thing." Id., at 14. In another admiralty forfeiture decision 17 years later, Justice Story wrote for the Court that in in rem admiralty proceedings "the acts of the master and crew . . . bind the interest of the owner of the ship, whether he be innocent or guilty; and he impliedly submits to whatever the law denounces as a forfeiture attached to the ship by reason of their unlawful or wanton wrongs." Harmony v. United States, 2 How. 210, 234 (1844) (emphasis added)."
baader-meinhoff or just serendipity, thanks. :)
What I think causes confusion is the "innocent owner defense" where the burden is on the owner to prove that, notwithstanding that the property may be subject to forfeiture because it is illegal proceeds, the owner came by the property legitimately.
It's hard to convict you of a crime for driving around with a envelope stuffed with a lot of cash. But's it's easy to demonstrate reasons why the cash may be used for nefarious purposes.
Preponderance of the evidence is the standard burden of proof for civil cases, whatever actors are involved -- the side the wins is the side that proves that its position is most likely to be correct.
The higher (beyond a reasonable doubt) burden of proof in criminal cases exists as a safeguard because of the greater consequences to liberty of a criminal conviction.
Its the same standard used when pretty much anyone wants to use the legal system to take your money or other property via a lawsuit, so I don't think its that outrageous that it is used for civil forfeiture cases.
If we're talking about the police alleging that you have money because of criminal acts, we should switch to the criminal standard.
So, the principle on which the existing distinction is based really doesn't support it being applied to forfeiture actions.
And, while there might be a good argument for changing the principle underlying the distinction, I don't see a clear reason for applying specifically the beyond a reasonable doubt standard to forfeiture (or even a higher standard that would apply in any other civil claim.)
1. The owner decides it is not worth the hassle. 2. The government usually settles bogus seizes because they don't want case law building up over this subject.
I repeat this statistic a lot, but the solved murder rate has fallen from ~90% in the 60s to ~60% in recent years. You'd think with all our new forensic technology and lower overall murder rates it would be opposite.
I am more a fan of the whole, increase in division between community and its police leading to lack of informants among other things, idea.
The whole history of in rem actions is bonkers, as cases have titles like https://en.wikipedia.org/wiki/United_States_v._Article_Consi...
A lot of decisions that seem "outrageously stupid" make more sense if you think of the Supreme Court as an umpire. The democratically-elected legislatures are supposed to make good decisions. The unelected Supreme Court should only check them if they do something egregiously against the rules. The Court should let the "game play on" if there's not a very good reason to say that a 200+ year old document trumps a state legislature's contemporary decisions.
You will of course come up with many arguments, virtually all of which I'll agree with, that asset forfeiture is "unreasonable". The problem is that other people disagree with you, and, specifically and distinctively with this particular item in the bill of rights, the court is supposed to defer to the legislature as much as it can.
It seems pretty cut and dried to me that the 4th amendment supersedes any law passed in direct opposition, just like the 1st or 2nd would. This isn't a case where the courts would be making multiple logical leaps to invalidate a law they disagree with, you can describe it in 4 words "seizure without a trial", then look at the 4th amendemnt.
Having said that, the history of 4A law suggests that the word "reasonable" in 4A connotes a mandate for unusual deference to the legislature --- and SCOTUS already tends strongly towards deference.
But the only way they will do that again is if there is public pressure. So even if a lot of people disagree with me, the proper course of action is not to shut up and take my medicine. The proper course is to keep raising hell about it.
There was a big expansion of this in 1984 pushed by Biden that more or less gave us the modern form of asset forfeiture.
And we're going to have to solve this problem at the Federal level. Many states have laws preventing police from keeping the money they seize. But the DEA is happy to take credit for the seizure, keep n% of the money, and hand the rest back to the department that did the seizing.
This whole issue would go away if seized assets were required to either be returned to the rightful owner or destroyed. If we allow police to keep what they seize, we should call it what it really is...pillaging.
In anti-trust cases damages are tripled as a deterrent, why not institute the same penalty for police? If someone wins their money back from the police they get triple what the police tried to seize.
You might say, good, that means voters will try to ensure future police don't do this shit. Which is a nice theory, but probably doesn't work out in practice.
In practice, you have small towns that can be bankrupted by a good-size suit, which is probably not a good outcome. You also have large cities that have room to minimax what they can get away with, and now all you've done is possibly deterred really egregious cases.
It gets substantially more complicated with the intersection of feds and state agencies, where (depending on the state) police are good at gaming where the money goes depending on how and what is charged by whom. (There are complicated revenue sharing arrangements between, for instance, the DEA and local cops for forfeitures.
If your hypothetical bank robber needs to be deprived of the money (and I don't think I agree, but that's a different discussion), the proper way to align incentives is to ensure the police do not see any of the money. Period. Give it back to the bank, put it in the state general fund, give it to a random orphan, burn it, whatever[1]. But as long as the police can by shiny toys with it (conference attendance, margarita machines and outright theft have all happened), they have an incentive to push it as hard as they can.
[1] Giving the funds to the state still has incentive problems, but they are muted. I don't know that there's any empirical evidence if it is sufficiently muted to align police behavior with what most non-cops consider reasonable.
It's an excellent outcome. Particularly in small towns, the police strongly reflect the attitude of the people.
The problem with the direct seizures going to the cops is that the local government underfunds the overtime budget -- that affects the policeman's pocket and is a powerful motivator.
I think that to avoid bad incentives, No part of government should receive any benefit from the seizure?
To pay for the opportunity cost of the person not having access to the money for the period of time.
Also, forbidding the police from keeping the items.
No, it doesn't. An accused bank robber could be acquitted of the crime of robbery and still found liable for the tort of conversion of property, and have to pay the money back to the bank.
(Additionally, either criminal or civil forfeiture may be available against the specific money involved, only in a criminal forfeiture case would the acquittal of the defendant on the criminal charges be dispositive. Generally, as I understand it, criminal forfeiture applies to a broader and more distant class of property relations to the crime, and therefore isn't used for the types of property to which civil forfeiture could be applied.)
The police and everyone involved in the seizure belongs in jail for the term appropriate under Grand Theft statutes.
Though I think there is a case that since they are government officials, the sentences should are trebled.
As long as the victimized populaces doesn't vote for the politicians in power or is otherwise disenfranchised and poor, it's a great plan /s.
Also civil forfeiture usually ruffles conservatives as government overreach. Basically, toughness on crime came from many odd bedfellows.
For example, California popularized three strikes, a very liberal state.
The problem is that the courts have allowed cops to twist that "good reason" to the point where it is a blanket right to search anyone, any time, and steal their property. That's the abuse of what ought to be a relatively narrow exception.
[1] https://www.law.cornell.edu/wex/exigent_circumstances
[2] Note that this point isn't about gun control (whether you like or hate gun control). It's about someone who carried or used a gun while committing a crime, which is an entirely different beast!
Yes they should. Either they are arresting you and the gun gets processed like everything else, or they aren't arresting you and thus need a warrant to seize anything from you. If they don't have enough evidence to arrest you for the crime then they don't have enough evidence to seize the gun without a warrant.
As for whether they should ever be able to seize a gun without arresting you, I'll defer an opinion--I feel like my knowledge of the variety of cases isn't up to snuff.
"There have been 61,998 cash seizures made on highways and elsewhere since 9/11 without search warrants or indictments through the Equitable Sharing Program, totaling more than $2.5 billion. State and local authorities kept more than $1.7 billion of that while Justice, Homeland Security and other federal agencies received $800 million. Half of the seizures were below $8,800."
http://www.washingtonpost.com/sf/investigative/2014/09/06/st...
Temporarily.
If they're not going to charge you, they should return the gun.
The alternative is to declare "gun free" zones near the location of all gun crimes. Not sure who did it? No problem! Take everyones guns.
The 2nd amendment just says you have to be able to own and carry weapons, with a rough implication that they should be fit for military purpose. The idea that registration or quality or safety requirements are somehow unconstitutional is and has always been absurd.
~The 14th Amendment just says that blacks have equal rights to vote as whites. The idea that poll taxes or literacy tests or official intimidation while in transit to the polling places are somehow unconstitutional is and always has been... absolutely correct.~
In some counties, bearing a concealed firearm requires a permit issued by the sheriff. In some counties, the sheriffs do not issue any permits. In others, the sheriffs issue fewer permits to black people than the local demographic statistics would otherwise suggest.
Do you understand now why such subtle and apparently reasonable encroachments upon a right must be scrutinized so very closely?
No, it doesn't say that at all. You are probably thinking of the 15th Amendment, section 1 of which is "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude."
> The idea that poll taxes or literacy tests or official intimidation while in transit to the polling places are somehow unconstitutional is and always has been... absolutely correct
Except, not; hence the prohibition of poll taxes by the 24th Amendment, and the prohibition of literacy tests for voting in some districts by the Voting Rights Act of 1965, later amended to apply to the whole country in 1970.
(Those things have, no doubt, always been wrong; they were not, however, unconstitutional, or even prohibited federally in any form, until much later than the 15th Amendment.)
While it may seem reasonable to require a proficiency test to legally own a gun, what you will see in practice is that any possible ambiguity in the legal definition for such a test will be exploited to serve the political preference of the tester.
You're right, the laws are unconstitutional because of the tenth amendment.
Before the normal arguments about the constitution pop up, please know that I'm not a rightist and I don't support it, I just don't like it when people twist words and laws to suit their political agenda.
It shouldn't be legal, but thanks to the drug war and post-9/11 anti-terrorism politics, it's been enabled by federal legislation and rules. It needs to get challenged more in the courts on constitutional grounds, but this takes money and time, which the usual victims don't have.
Also, they (the police) further complicate things by making it a civil asset forfeiture case against the property and not a civil or criminal case against the rightful owner.
http://www.forbes.com/sites/georgeleef/2014/09/12/time-for-c...
Think about it statistically. The standard is "more likely than not" the money is obtained illegally. If you pull over 100 people with large amounts of cash, what percentage obtained it illegally? If it's greater than 50%, then you can always seize the cash under that standard. You don't need to make the judgment that no one has a legitimate reason to carry that cash, just the weaker judgment that it's statistically unlikely that the cash is legitimate.
"Innocent until proven guilty" is very different from "Guilty because most people in similar situations are guilty, so let's not bother to prove it in this case."
The cops would have a field day, for instance by arresting college students at random on the weekend because statistically most will test positive for controlled substances.
The concept of "proof of innocence" does not appear in the Constitution; it derives from common law, and the Latin word it comes from doesn't mean "prove" in the mathematical sense.
Which makes sense, because "innocent until formally proven guilty" doesn't make sense in a sentence that proceeds to "beyond a reasonable doubt".
That's an interesting question, but it's not obviously greater than 50%. Honestly, I don't think it's higher than 50% at all, but certainly it isn't so clearly higher that it should be accepted without evidence.
I'm not a conspiracy nut but I can certainly see how someone who is could view this as an effort to legally coerce citizens into using only traceable methods of payment approved by commercial processors under the implication that something like cash or bitcoin would only be used by those trying to hide something.
IANAL, but I'd suspect that the usual logic goes: Usually a person carrying a large amount of cash is a criminal who got the cash illegally. So, anyone with a large amount of cash is likely a criminal, and we will treat them as such.
The gap here is that the person so treated need not have done anything wrong and are being prosecuted due to the crimes of others.
I doubt that there is a law saying that having $20,000 in cash is illegal.
So, if are going to prosecute Joe, then need to do so from something Joe did, and prove he did it. That most people with a lot of cash got the cash illegally doesn't mean that Joe did anything illegal, and there's no law against having a lot of cash.
I've learned my lesson: Often the police are enforcing social norms and attitudes instead of laws and are enforcing these against people who are not in the center of the respectable middle class.
E.g., since I'm doing a startup, I'm keeping down spending and driving an old car. Since the car still, with a lot of maintenance, is fine, I can keep driving it.
But recently I had occasion to go to a poor, largely Black, section of town. On the way out of that section, I was followed closely by a police car. I just drove in a very legal and normal way, and, by the time I was out of that section of town, the police car quit following me. But, I learned my lesson: At least with an old car, stay the heck out of a poor, Black area of town -- that's the real law.
More of the real law is to participate in church, JAYCEES, Lions, school board, be well known and liked, make contributions to political campaigns, contribute to the Fraternal Order of Police and any police charity drives, have some associated decals on the windows of my car, drive a late model, family car, dress well, no beard, hair short, be known to the local political power structure, etc. Be known to the police in my neighborhood. Ah, they didn't tell me such things in civics class.
For more, get rich and be a very anonymous donor to some legal efforts to mount well funded challenges to such highway robbery in the courts.
AFAIK, that's just basically how things work in the US. In some other countries, the citizen either (A) is too poor to have anything anyone would want to steal or (B) has some money and keeps paying off the political power guys.
Apparently that we could actually follow the Constitution seems to be mostly a long shot.
In the meanwhile, the power structure wants (A) bend the Constitution and slap down the drug dealers, and likely anyone else they don't like, so that when anyone looks at all suspicious just steal any of their valuables and (B) put up with excesses by the police, especially since the excesses are mostly toward poor people.
So, the real law is, for any poor and/or Black stopped by the police, look like the old movie character stepin fetchit, be passive, submissive, subordinate, subservient, obsequious, act like a harmless child, hang head, don't make eye contact, keep hands in plain view, make only slow motions, and let the egotistical, bully thugs, with their dark, aviator sun glasses, SS like uniforms with lots of shiny metal attachements, get their jollies and let the power structure be happy with an orderly rhythm to the community.
Otherwise the police have wide latitude to enforce the laws, act as prosecutor, judge, and jury, proscribe and execute sentences, all on the street, based just on anything, no charges, no due process, nothing. So, all with no due process at all, the police can embarrass, insult, humiliate innocent citizens, steal their valuables, insert things into their rectums and/or vaginas, beat them with clubs, shock them electrically, and, for any reason or no real reason, just shoot and kill them.
The power structure and the police can expect that some citizens will object.
Our Founding Fathers understood kings, dictators, secret police, bullies, thugs, etc. and gave us a good Constitution. We need to stop making incredibly contrived, complicated rationalizations why the very clear words in the Constitution don't mean what they very clearly do say.
Of course, the solution is democracy: When enough citizens get angry enough, there will be changes.
Another solution is a lot more video from smartphones, dash cams, etc.
And, just now, that the mainstream media (MSM) likes ad revenue from eyeballs and stories about scandal so much, the recent examples and video of police killing unarmed citizens has gotten a lot of attention. Now in courts, commonly a community with some police who went way too far gets slapped with a judgment of several million dollars.
So, any layer of government with a police force will need an insurance policy, and the rates will tend to show the risks. A police chief whose force causes such a several million dollar judgment will get to look for a new job far from police work. Or, money talks, and it will be talking loud and clear soon. And along the way, the increased attention may also stop the highway robbery.
It's pretty obvious that they exist, otherwise nobody would really care about murder, rape, theft, fraud, lying, etc. So the burden of proof is on those that want to limit or deny inalienable rights.
George Carlin is hilarious (at least in general), but ironically gives abusers a lot of ammunition with this argument.
You can claim a right to something and if you can get enough people to agree with you, you can enforce someone's claim on the right to something. But it's not like there's a natural force that ensures, compels, or mandates these rights.
I guess my point is that taken less cynically, rights (as we understand them) only exist in practice as long as you can demand them and have sufficient power (whether through numbers or threat of force) to keep them. The sad reality is that without the continual effort to maintain these rights, they can and will be taken away.
A lot of really well regarded philosophers throughout the ages have disagreed with that.
> I guess my point is that taken less cynically, rights... only exist [with] sufficient power
If I follow that line of thinking, justice is only an extension of power. I don't think people agree with that.
I don't believe you think that. Perhaps it's just a matter of phrasing; surely we both agree that it's important to recognize that people should never murder people. We use the word "right" because it's important to be absolute in this rule.
It's worth distinguishing between:
* life is not a right
* we don't have enough power to enforce murder laws
tl;dr To say there are no absolute rights is to say there are no absolute wrongs.
There aren't any absolute rights or wrongs, there aren't any absolute morals at all; right and wrong is always a point of view and no one can lay claim to having the absolute and only correct ones.
You are confusing legality with morality. There isn't necessarily any connection.
Perhaps meaningful in the abstract, but a meaningless distinction in practice.
> It's pretty obvious that they exist, otherwise nobody would really care about murder, rape, theft, fraud, lying, etc.
That does not follow. There are in fact people who don't care about those things; that some people do does not mean inalienable rights somehow exist as anything more than social norms.
> So the burden of proof is on those that want to limit or deny inalienable rights.
No, the burden of proof of any claim of existence is always on the one claiming something does exist; proving something doesn't exist is not logically possible as there's always somewhere you can't look (the universe is big) and thus an invalid statement not subject to the burden of proof because it's wrong to claim at all.
The concept of inalienable rights is a moral axiom accepted by some (sort of like the existence of a God with certain preferences, in fact, many conceptions of inalienable rights are specifically beliefs about the existence of a God with specific preferences); its not a material fact or a supportable conclusion.
And, of course, people who agree that inalienable rights exist disagree on what those rights are (even those that agree on the names of inalienable rights disagree on the definitions of the rights that those name attach to.)
> It's pretty obvious that they exist, otherwise nobody would really care about murder, rape, theft, fraud, lying, etc.
The fact that some people care about these things establishes that those people have certain moral preferences; it doesn't establish the existence of inalienable rights (in fact, many of the people who do care about these things do so based on justifications other than inalienable rights.)
Of course, the same argument apply to the axiom that the rights don't exist.
However, there is a lot of weight to the argument that there is a common list of universally reprehensible wrongs (murder, rape, etc.). Inferring rights from those wrongs is reasonable and doesn't require much in way of explaining where they come from.
I'm not sure why people are so eager to disprove the existence of rights, to be honest. The wholesale embrace of moral nihilism seems empirically worse. Or at least, more conservatively, empirically untested and therefore risky.
Rights aren't material things, they don't exist in any external sense in any case. A "right" (in the moral, rather than legal, sense), inalienable or otherwise, is a just a statement of someone's moral preference. Clearly, these moral preferences exist in people, and, equally clearly, they differ between people.
> However, there is a lot of weight to the argument that there is a common list of universally reprehensible wrongs (murder, rape, etc.).
No, there's not. Well, I mean, sure, its tautologically true (and unsurprisingly widely accepted) that murder, in the sense of wrongful killing, is wrong.
OTOH, when you try to look for some common universal definition of when killing is wrongful, there's a lot less agreement. (The same is true of the other examples you've named, in the parent on great-grandparent posts.)
So, you've got some vague agreement that there are common names from wrongs, but the actual definitions of the wrongs with those names is different. That doesn't really support all that much of a common idea of wrongs implying a common idea of rights.
> I'm not sure why people are so eager to disprove the existence of rights, to be honest.
I'm not so interested in disproving the existence of rights as in getting people to understand that invoking the idea of "inalienable rights" doesn't really, outside of providing a rhetorical flourish, accomplish anything. Because the existence, and even moreso the definition, of those rights is not universally shared, what the invocation invariably amounts to is a circular argument where the supposedly inalienable right in question is defined in precisely the way needed to support the position the person is arguing for.
Which is perfectly convincing if you already agreed with the conclusion, but entirely unconvincing, if you did not.
"Why should we do (or refrain from doing) X? Because Y is an inalienable right and includes within its scope a mandate to do (or refrain from doing) X." Is just not a meaningful argument.
Unless the discussion is among people who have already agreed to the definition of Y being used.
We need to reframe rights as a promise to care and ability to help. As in, you can say you've got a right to free speech all you want but it's not until I stand with you that you're actually safer.
Human rights, if you must, would be the code that the average human would care about enough to fight for.
He addresses that. A right has to be granted by someone. Who grants these inalienable rights? If you answer is "God", or "they just are", your thinking is circular.
If your answer is "the government/state", you are wrong. The government/state grants you this "right", and takes it away as it pleases, so it is actually not inalienable.
TLDR; An inalienable right that is systematically violated is not very inalienable, is it?
But I've often wondered how this could stand up to constitutional muster. I believe one of the arguments is that the criminal case isn't against you, but the property that was seized from you. So if it wants to push the case, your seized $1000 can sue.
When they do run into someone with enough gumption and resources to appeal, they immediately drop the charges against the money and return it minus fees, just to prevent the creation of specific precedent against the practice.
Hanlon's Razor is bullshit, by the way.
That said, it's the prosecutors that would have to keep the case active if disputed, and there's no incentive for them, except for a possible loss in the case where police overreach is proven. That's all the reason needed to not dispute most cases if they go far enough to actually require some work from the prosecutor.
> Hanlon's Razor is bullshit, by the way.
You and I live in different world then. Obviously, some portion of our worlds is entirely in our heads and doesn't conform to reality. I suspect I'm happier in mine than I would be in yours.
"I used to assume there were people in charge who knew what they were doing, who planned how things in society should work. As I got a little older I got more cynical, believing these people were trying to keep the rest of us dumb with shoddy schooling and mind-numbing entertainment, in the hopes they could get away with whatever it is powerful people are always trying to get away with.
Then as I got even older I realized that the people in charge are as clueless as the rest of us. Like our software, our society just kind of happened over the years and it’s always on the verge of coming tumbling down. Nobody really knows what they’re doing or what they’re talking about.
If you can get over the sheer terror of that thought, it’s actually quite liberating." Nick Bradbury
Here is a brilliant John Stossel episode about this law and how it is destroying so many innocent people.
1. https://www.youtube.com/watch?v=nJ399EBlqBE 2. https://www.youtube.com/watch?v=DiGRMD4NXVA
What are the mechanisms or processes by which we expect to be protected? Since this is a civil case, one would have to hire a lawyer with their own money.
Ever tried to prove that you really own the money in your wallet?
If you really want to get hairy, put the cash in an unmarked envelope and put it on the front seat of a car owned by someone other than the driver. Now prove who owns it.
The structure of asset forfeiture laws requires that the action be formally against the property. They also require both specific notice of people with specified relations to the property which indicate probable ownership, and public notice, so that any persons with ownership interests in the property can intervene in the action and have the opportunity to contest the governments claims against the property.
But my description of how it actually happens is still valid. See https://www.washingtonpost.com/news/wonk/wp/2015/06/30/why-t... for a recent case where exactly this happened. And it links to 3 other cases where money was seized from travelers, with no criminal charge ever being filed against anyone. In all 4 of these cases a person tried to board a plane, TSA finds money, seizes it, sues the money, and no case is made against the person. In none of the cases did the person get said money back. (The main conflict over where it goes in most cases is that a couple of dozen different government agencies argue about how to divide it up.)
The most unusual trait connecting these cases is that there was publicity about it. It happens so often that reporters usually don't bother to write about them.
The problem is that legal standard is that the government merely has to establish "reasonable suspicion that there was a crime", while the person has to establish "a preponderance of evidence that there was not". This reverses "innocent until proven guilty." How do you establish a preponderance of evidence that no crime happened when no specific crime was ever alleged? It is effectively impossible.
This story from a year ago on the front page establishes the shift in standards quite well: http://www.economist.com/blogs/democracyinamerica/2014/02/ci.... A quick summary is that a couple was indicted of a crime and successfully defended themselves. In the process the government seized a home through civil forfeiture, and the forfeiture stood because the couple was unable to prove that the crime did not happen.
(Unlike the cases that I'm describing above, in this case a specific crime was alleged. Normally the TSA just claims something like, "there was a smell of marijuana" and you have no way to prove that there wasn't.)
If the people from whom the property was seized were denied (or not notified of) their rights to contest the forfeiture action, that would be something to be upset about. I don't see why we should be upset that the government took civil action without filing criminal charges; the civil burden of proof is lower than the criminal burden of proof because things like imprisonment, execution, loss of voting rights, etc., aren't on the table with similar actions; consequently, the level of evidence with which it makes sense to initiate criminal process is different than that for which it makes sense to initiate civil process.
> The problem is that legal standard is that the government merely has to establish "reasonable suspicion that there was a crime", while the person has to establish "a preponderance of evidence that there was not".
The initial seizure proceeds based on reasonable suspicion, but the goverinnment has the burden of proof to show, by preponderance of the evidence, that the seized property is subject to forfeiture under the law.
(The owner may have the burden of proof for defenses that apply to prevent forfeiture of property that is otherwise subject to forfeiture, such as the "innocent owner" defense, where the property was subject to forfeiture because of its relation to a prohibited act, but the owner was uninvolved in the act.)
> A quick summary is that a couple was indicted of a crime and successfully defended themselves. In the process the government seized a home through civil forfeiture, and the forfeiture stood because the couple was unable to prove the crime did not happen.
Er, no. What that source reports on is not that at all. It reports on the couple being indicted of a crime, and, as a consequence of the indictment, property that would (according to the government) be forfeitable under criminal forfeiture (which has the criminal burden of proof) being seized so that it would be preserved. The couple, arguing that the seizure order was overly broad, sought a hearing on whether the seizure was in error, arguing that the broad seizure impaired their right to counsel of their choosing for the criminal trial; this is what the Supreme Court turned down.
This isn't a case about civil forfeiture (the original seizure was to protect civil forfeiture, but the appeal was about the broader seizure under the superceding indictment which was to protect assets targeted for criminal forfeiture), it doesn't address a target acquitted of a crime and where forfeiture still occurred (this does happen in civil forfeiture, but this isn't an example), and it doesn't have anything to do with the owner not being able to prove a crime didn't happen.
I believe that this long ago crossed the line to being actually used as civil rights abuse.
On this case, you're mostly right. The seizure happened under civil forfeiture law, a the second paragraph of The Economist article makes that clear. So this really is a question about civil forfeiture law. But it is tied to a potential criminal civil forfeiture.
The initial seizure happened because property was targetted for civil forfeiture, the expanded seizure happened because property was targetted for criminal forfeiture, the request for a pre-trial hearing (which was denied leading to the series of appeals that ultimately reached the Supreme Court) was for a challenge to the criminal forfeiture action.
The question addressed in the Supreme Court case was about criminal, not civil forfeiture.
This type of aggressive policing (excessive jaywalking tickets) was also happening in Ferguson.
We know how that turned out...
Sarah Stillman's article for the New Yorker, Taken, is particularly good, as well as depressing: http://www.newyorker.com/magazine/2013/08/12/taken
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
I don't get it, which is why I'm asking here: Why is this "stop-and-seize" not considered unconstitutional? Has it just not been challenged that far yet, or is there a legal rationale that I have not heard yet?