The money isn't "charged." The case is just styled as In re $35.00 of US Currency because the case is about the ownership status of the property, not about any specific person. The money doesn't have to "prove itself innocent." The legitimate owner just needs to rebut the government's argument that it was illegally obtained.

Of course, this styling isn't just used in cases where the property was illegally obtained. It's also used in cases where it's not in dispute that the property was legally obtained, and the government simply seeks to take it from the legitimate owner as a penalty for a crime they assert he committed, in order to avoid naming the owner as a defendant even though they know exactly who owned the property they seized.

Source?

Take a look at United States v. One Ford Coupe Automobile for a start.

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)."

That quote from Justice Story is precisely why such proceedings are not a "penalty for a crime [the Government] assert[s] [someone] committed." The purpose of such proceedings is to confiscate property used for illegal purposes (so it cannot continue to be used for illegal purposes), not to punish the owners of the property. Hence why in that case they confiscated the ship "whether [the owner] be innocent or guilty."

So, at this exact moment, I had someone asking me what the difference between brackets and parenthesis was, legally, and I was able to hand them the laptop, and say "that".

baader-meinhoff or just serendipity, thanks. :)

But shouldn't the burden of proof rest on the government?

It should be, and it is (at least under federal law): https://www.law.cornell.edu/uscode/text/18/983 ("the burden of proof is on the Government to establish, by a preponderance of the evidence, that the property is subject to forfeiture").

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.

That's a low standard for the government to meet. "Preponderance of the evidence" means that the government doesn't need to prove the property is subject to forfeiture, just show that 50% of the evidence indicates that it could be. (guy in car from out of state at night, guy fits the profile of something, road is a "drug corridor", guy had alot of cash, guy was speeding)

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.

> That's a low standard for the government to meet. "Preponderance of the evidence" means that the government doesn't need to prove the property is subject to forfeiture, just show that 50% of the evidence indicates that it could be.

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 were talking about a contract dispute where one of the parties is a city, state or the federal government, you're totally right.

If we're talking about the police alleging that you have money because of criminal acts, we should switch to the criminal standard.

It's the standard civil burden of proof. If I say I own Blackacre and you say you own it, I just have to present enough evidence to get over the 50% mark.

I think the point here is that a civil burden of proof is completely inappropriate when the plaintiff is the state and there's an allegation of criminality.

That's not necessarily a bad argument, but the theoretical basis of the criminal burden of proof is that the kind of consequences resulting from criminal conviction are different than mere property (which is routinely at issue in civil cases).

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.)

If you're being sued to turn over The property I would say no problem... but you're not, it's being confiscated

I've heard this claim before that the police "charge" the asset rather than the owner; I believe it was in John Oliver's show on civil forfeiture--mentioned in other comments below:

https://news.ycombinator.com/item?id=10560200

Isn't the money innocent until proven guilty?

No. That is the thing. The money is guilty of being dirty until the money's owner proves otherwise. Usually two things happen:

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.

You can be the rap but you can't beat the ride. The money is confiscated because the police think it was ill gotten. If you doubt they have enough proof you can bring that up at the trial.

It was covered very well by John Oliver in https://www.youtube.com/watch?v=3kEpZWGgJks