The immediate first thing that should be done is that police departments should have no way of benefiting from the seized cash or assets because it creates a perverse incentive across the board for everyone in the police department to overlook transgressions. It should be held by the county/state and the interest accrued till a judge decides. If it's forfeited, it should go into the county or state public benefits program that only benefits the poorest of the poor, seniors and homeless people.

There is actually proof that this works. Using Felony Probation and Parole in a particular state as an example, at one point it went to the department that ran Probation/Parole. So the Probation/Parole Officers were encouraged to aggressively pursue getting the fees for probation/parole. Then it was changed to go to the states general fund (so the department stopped getting it effectively). MAGICALLY the officers only got encouraged to care about restitution payments and started being very blaise about failure to pay fines and fees.

The obvious thing to happen next cycle from instituting such rules: the benefits program's dedicated budget gets adjusted down by the expected value of forfeitures.

Maybe instead any money collected civil asset forfeiture should be required to be sent to the Federal Reserve where it is destroyed. That should prevent any of these sorts of perverse incentives.

For money that could work. For other assets (e.g. art, anything that has an environmental cost to create it) society may benefit from them being preserved. I guess you could still auction them off and burn the money.

And that's how you get auctions where all the bidders are personal friends of the judical officer.

It just shouldn't exist. A judge can impose such penalties upon conviction, but there shouldn't be a way for police to seize assets like this themselves.

Civil asset forfeiture makes a little bit of sense where it was first used: dealing with the cargo of smuggler's ships. It was almost impossible to prosecute a ship owner who lived across the ocean in Europe, so simply seizing a ship and its smuggled goods was a viable alternative.

Unfortunately it's expanded to all sorts of ridiculous and blatantly unconstitutional seizures in the last few decades.

> It was almost impossible to prosecute a ship owner who lived across the ocean in Europe, so simply seizing a ship and its smuggled goods was a viable alternative.

Such seizures should have the same procedural limitations as arrest of an individual does. Individual procedural limitations:

- Police can arrest you and throw you in jail if they have reason to suspect you committed a crime.

- Within a certain number of days of being thrown in jail, they have to either produce concrete charges against you, or let you go

- While the trial is going on, you can apply for bail to get your freedom.

- You can't finally be thrown in prison until you've been convicted by a jury of peers.

You could apply parallel standards in this situation:

- Police / coast guard could seize a ship if they have reason to believe it's smuggled goods

- Within a certain number of days, they have to either produce concrete charges against the owner, or let them have your stuff back.

- While the trial is going on, the owner should be able to apply for "bail" to get their stuff back. A judge can determine if it's worth the risk or not, just as they do for prison cases

- The stuff can't be finally taken away until the owner has been convicted by a jury of peers.

Adding in something like, "All seized goods are distributed to the poor" or something rather than "All seized goods go to the department which seized them" would go a long way towards ending this sort of abuse.

This doesn't seem to be responsive to the point made by the GP: if the owner is in another country, perhaps one that doesn't have extradition to the U.S., then there's not going to be a trial. The U.S. doesn't have in absentia trials except in extraordinary circumstances like a defendant fleeing the country mid-trial.

Looking briefly through the "habeas corpus" stuff, it looks like the way it technically works is this:

- Police arrest you

- You can request a Writ of Habeas Corpus

- The judge then issues the Writ

- The police either have to accuse you of a crime or let you go.

You could do the same thing wrt the stolen goods:

- Police sieze contraband

- Owner requests Writ of Habeas Stuffus

- etc

In the case of an owner in another country and is pretty sure they'll get arrested if they show up to claim their stuff, then they'll choose to leave the stuff where it is rather than apply for a writ. After a year, the police could consider it forfeit by default.

In rem jurisdiction over property is the exact basis of civil forfeiture - this isn't a solution, it's the problem.

I think gwd's point is, the "thing" wouldn't be the subject of a case. It would be siezed as evidence of a crime, with the subject of the case being the John Doe owner. If the owner is identified/comes forward, they must be charged with the crime. If not convicted, their property is returned. If no owner is found after some period (say, a year or more), the "thing" is considered abandoned property. Basically, eliminating "in rem".

The thing about civil forfeiture is it's not about contraband; the property is usually perfectly legal in itself, however, there is an alleged criminal nexus.

The situations it's intended to address are things like this:

Bob meets regularly with known members of Mexican drug cartels, but doesn't actually seem to be involved with the illegal sale of drugs. Bob files his taxes every year and makes a modest income. However, every day, Bob drives over the border at El Paso in his car with a million dollars of cash in a briefcase.

If the DEA stops Bob, he asserts that the cash is his. Since it's not obvious that Bob has actually committed a crime, shouldn't there be some mechanism to allow the obvious profits of crime to be confiscated without having to convict Bob?

A lot of reasonable people think the answer to that is "yes"; but it is apparently hard to create a mechanism that doesn't also result in the police confiscating your car because your friend that's riding with you has $500 of cash, a bunch of empty baggies in his pocket, and prior drug dealing conviction.

> If the DEA stops Bob, he asserts that the cash is his. Since it's not obvious that Bob has actually committed a crime, shouldn't there be some mechanism to allow the obvious profits of crime to be confiscated without having to convict Bob?

Obvious to who?

If it's so obvious then charge Bob. If it's not then no confiscation.

Why do we want some weird half conviction? And if do you want that then do a plea deal.

> Since it's not obvious that Bob has actually committed a crime, shouldn't there be some mechanism to allow the obvious profits of crime to be confiscated without having to convict Bob? A lot of reasonable people think the answer to that is "yes";

No, those people are absolutely not reasonable! Those people want a magic world where we have crystal balls that tell us exactly who's innocent and guilty. That would certainly be nice, but that's not the world we live in.

It's frustrating when the guilty go free because of the rules we have in place to protect the innocent; but those rules didn't come out of nowhere. They are the result of the hard-won experience of thousands of innocent people being punished. If you remove them then innocent people will be punished again.

No, there shouldn't be, because if you haven't convicted Bob of a crime it's not "obvious profits of crime". It could be perfectly legitimate and you haven't proved otherwise. You can certainly seize the cash as possible evidence of a crime, but if you don't charge Bob then you've got no justification to penalize him by keeping the cash, and it should go back to him.

You're missing the point here.

I was attempting to describe a situation where, if the law permitted it, you could bring in a jury and let a prosecutor make the case that Bob's briefcase constitutes the proceeds of crime, and have a solid chance of success at the "beyond a reasonable doubt" standard of proof which is required for a conviction.

But you can't prosecute a briefcase full of cash; and Bob's actions are not in themselves criminal. Without some kind of asset forfeiture system, nothing can be done.

There's a pretty reasonable public policy argument that this is not an acceptable situation.

I don't think I'm missing anything. You want to be able to claim the briefcase as proceeds of a crime, without actually prosecuting a crime. That is unreasonable. If, as you say, "Bob's actions are not in themselves criminal", you've got no justification to take his stuff. You may think it's proceeds of a crime, and you can treat it as evidence of a possible crime. But if you haven't got enough evidence to convict Bob, then you also don't have enough evidence to keep his stuff. Pretending otherwise is a mockery of justice.

> you could bring in a jury and let a prosecutor make the case that Bob's briefcase constitutes the proceeds of crime ... But ... Bob's actions are not in themselves criminal.

So you're saying:

* You have evidence enough to prove beyond a reasonable doubt that Alice, the owner of the cash, has committed a crime, and that this cash is the result of that crime

* Bob himself hasn't done any crimes at all.

We can't prosecute Alice because she's in Mexico; and we can't prosecute Bob, because he hasn't done anything wrong.

Well then, seize the cash, and let Alice come for it. If Bob claims it's his and applies for a writ, show the evidence to the judge that Bob isn't actually the owner. If Alice applies for the writ, present your case against her. If she doesn't come for it after a year, treat it as abandoned property. Everybody gets due process.

If you don't have enough evidence to prove that Bob isn't the owner, you don't have enough evidence to convict Alice of a crime, and therefore it's a violation of human rights to take her money.

What you're describing is functionally exactly the same as civil forfeiture that everyone is complaining about!

Civil forfeiture works fine for this case, which is the whole point, because indeed neither will Bob be able to demonstrate it's really his, nor will Alice be arriving to collect.

Where it all goes wrong in other cases is "Bob claim it's his and applies for a writ". i.e. it becomes Bob's responsibility to prove his ownership in court, rather than the government's job to prove anything at all.

i.e. the government performs an administrative seizure without any proof obligation, and then reverses the burden of proof onto the person from whom the assets were seized

In the real world, for small-time asset forfeiture, the amount involved is too small to be worth the effort; or Bob often doesn't have the money for a lawyer to bring that action; or this all happens while he's traveling away from home, so the court appearances are going to involve air fare, time off work etc. Or Bob is presented with the problem of proving something that is difficult to evidence, like "I have been saving this shoebox full of cash in the closet for a long time for my daughter's quinceañera"[1].

Ultimately, yes, due process is available but it's not free, it's not low-friction, and it's many a time not worth it.

[1] https://thehill.com/opinion/criminal-justice/578798-the-high...

> Where it all goes wrong in other cases is "Bob claim it's his and applies for a writ". i.e. it becomes Bob's responsibility to prove his ownership in court, rather than the government's job to prove anything at all.

I said at least twice that it's the government's job to prove that it's Alice's and not Bob's.

You proposed a hypothetical scenario where there is plenty of evidence to prove beyond a reasonable doubt that this cash was the result of a crime by Alice. So, when Bob comes and claims the cash is his, present that evidence. It's not a matter of Bob proving that it's his; it's a matter of Bob proving that this "beyond reasonable doubt" evidence you have of Alice's crime is bogus.

We're getting really into the weeds here; I'd expect a lot of the precedents to be established by a series of cases. But I would think that a reasonable starting point would be that possession implies ownership by default; and that if the government wants to prove that the money that was in Bob's possession is not Bob's, then the burden of proof is on the government to prove that. In your hypothetical scenario, there is plenty of evidence that the money is not in fact Bob's, so it's not an issue.

If it turns out the evidence that the money is really Alice's drug money is actually pretty thin, that's a reason Bob should get the money back.

I think you are conflating "forfeiture" and "seizure".

> Since it's not obvious that Bob has actually committed a crime, shouldn't there be some mechanism to allow the obvious profits of crime to be confiscated without having to convict Bob?

Absolutely-fucking-not.

Law enforcement should never be able to seize property without the charging of a crime when they know who owns the property.

Unfortunately I can't understand what you're saying (perhaps beacuse I'm missing the appropriate background). Can you please explain what you mean?

Where courts make a "thing" rather than a "person" the subject of a case, this is called "in rem" (which is Latin for "against a thing").

The legal theory which underlies civil forfeiture is "in rem jurisdiction" where it's not the owner, but rather the property, which is the defendant in the case. If the case is at a Federal level, then it will be something like "United States of America vs. $50,000 in United States currency".

The standard of proof is not at the criminal standard ("beyond a reasonable doubt") but instead the civil standard ("preponderance of evidence").

Right, so the sibling reply was correct. The person I was replying to said that the "problem" they were trying to solve when they invented the practice in the 1800's was things like seizing smuggled goods off a ship, where the owner is overseas and you don't have an extradition treaty with them.

So, seize the goods in anticipation of convicting the owner. Make a law that says the owner can apply for a writ, and a case must be made. If the owner doesn't show up, then the goods are abandoned property. That allows the case described to be prosecuted, while not opening up the insane abuses we've all heard so much about.

The goods should be stored until the owner comes to claim it in person. If the person has committed a crime that the police feel there is enough evidence to arrest them for they can arrest them at that time. If the goods are left and unclaimed for a period of time (30 days? 60 days? 6 months) then the goods can be considered abandoned the dealt with accordingly. However, if someone is present with the goods and claims to be the owner (and the police don't have evidence contrary to that) then the goods should continue on with the current claimed owner.

> It was almost impossible to prosecute a ship owner who lived across the ocean in Europe, so simply seizing a ship and its smuggled goods was a viable alternative.

why not? prosecute them normally, if they show up then the trial proceeds as usual, if not then convict them in absentia and then forfeit the goods. why does this require a whole new system that bypasses all the constitutional rights for domestic citizens?

Because the US does not do "in absentia" trials. It's why Snowden has never been convicted; he fled before he could be charged. And now that he's gone, the US can't do anything if Russia won't extradite him.

In absentia criminal trials are almost unheard of in the U.S. as a result of the due process requirements in the Fifth, Sixth and Fourteenth Amendments.

You are describing a criminal situation.

The only legal way to stop abuse of authority is if those with a higher level of authority put the abusers in handcuffs. So in this case the state prosecutors need to go after the town officials. If the abuse is at the state level then the FBI needs to come in and start arresting people. Otherwise, why would they stop?

Local authorities work with Feds to do this, however. Civil asset forfeiture has been banned in various localities, but is still legal federally - so non-federal police arrange to have a Federal officer (DEA etc) on hand to take care of that part, and then a certain percentage is kept by the federal government and the rest given to the local authorities. So first it would need to be banned federally.

It's a good thought exercise for the "trust the experts" crowd. Reading the text of the constitution, a document designed to be understood by the people it would apply to, makes this a clear and obvious violation yet our appointed legal experts apparently don't see anything wrong.

The constitution is contradictory. It isn't a perfect document written on a stone tablet by god.

And legal systems of any nation are more than just the constitution.

So the idea that you can just read one clause in the constitution and therefore clearly know what is allowed and isn't (also, even the interpretation of that clause is not as easy as you are portraying here) is absolutely false.

> And legal systems of any nation are more than just the constitution.

In any case when a legal system clashes with the wording of the constitution it is that legal system that is wrong. That's what "highest law in the land" means. That is the entire purpose of having a constitution.

Experts love to hide behind "it's complicated!" but in this case they have nowhere to hide.

What part of the constitution do you think it clashes with?

> 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.

Pull over a guy, take the paper cash out of his wallet without charging him with a crime. No amount of wordplay can make that constitutional in a reasonable persons mind.

I do think CAF as it's currently implemented is unconstitutional, but this clause doesn't make CAF as an idea unconstitutional. The entire point (originally) was to secure assets that you have probable cause to believe are funding or proceeds from crime. So you find someone with a trash bag full of pills and $300k in cash in their trunk after a legal search, you need a process to handle that money.

That process has existed since before America has, find probable cause someone is committing a crime, detain the suspect (you can get a warrant first but this is more common), get a warrant (can be done over the phone in a couple of minutes), put the cash away somewhere safe until the trial is over. If they are guilty of that crime and that cash was involved, great! If not you have to return it.

What we are talking about here is just taking the cash, sending you on your way and spending it, sidestepping your legal rights like access to a court provided attorney or a jury trial. It probably doesn't do much to prevent crime even, the fentanyl runners would much prefer you just take the cash they have on them and let them go.

But the way it works today is the "probable cause"is the fact the money is over 10k. No charges end up being filled, or they end up being dropped. But they don't give you the assets back. Even after proving they are legitimate. You still have to fight for it. As an idea civil asset forfeiture is unconstitutional. Because it was designed to be an end around the constitution.

Take it as evidence until the owner goes to trial. If there is no speedy trial, return it to the owner.

Please define reasonable in legal terms.

In what context can a law disagree with the Constitution and still be legitimate?

When interpretations of the meaning of the Constitution differ the one last held by the Supreme Court has the (current) final say. The constitution is by necessity an interpretive document because we don't have a Constitutional Oracle to perfectly map concepts and words for centuries back onto the technological landscape of today.

"Shall not be infringed" is a super common refrain among the 2A crowd but taken hyper literally you couldn't take guns away from criminals actively in prison.

I think civil forfeiture is far outside the bounds of what could be condoned under the Bill of Rights but my interpretation only matters at a distance of influencing representatives to pass laws or the SC to rule differently.

Until it gets overturned. The problem is they don't let things go to trial to get it overturned

Libel law disagrees with the Constitution by a literal reading. So does banning human sacrifice in religious services. We still treat them as legitimate.

Libel is a civil matter. The government can't charge you with libel.

The government provides a judge and courtroom, decides the result, and enforces the judgement.

If you prefer a criminal matter, swap it out for fraud.

>The constitution is contradictory.

Could you give an example of this?

The same document talks about the "Blessings of Liberty" while establishing slaves as 3/5 of a person for Congressional representation?

It's a little hard to reconcile slavery with, say, the Fifth Amendment's prohibition on being "deprived of life, liberty, or property, without due process of law".

> slaves as 3/5 of a person for Congressional representation

You would've granted slave owners more votes? You feel they were under represented? If I lived in a state alone with a enough slaves I should have been able to dictate policy for the entire nation?

I think their concern was more the official endorsement of the practice of treating humans as private property, in contrast with a number of amendments providing individual rights (aforementioned property excluded).

They should have made that clear since the complaint reads as being largely about the 3/5 part.

Very strange that you went that direction instead of the more obvious "if slaves are property then they don't count at all".

I'd count them negatively personally but the grade school arugment made there has to die, the people who wrote that did so with the hopes of abolishing slavery in the future. It's exactly the opposite of how it is framed.

> You would've granted slave owners more votes?

I would have not had slaves.

That's really rich coming from a proponent of federal authority/power.

The alternative here was the articles of confederation or nothing and the states go their own ways as countries, not some fantasy in which the southern states torpedoed their own economies out of some love of the nation.

The constitution and the included 3/5ths compromise most certainly brought about the end of slavery much faster than taking a hard line circa 1790, or anything else that tipped the scales away from the united states forming a national identity would have.

You can say "this was the compromise they had to do" if you like. It's not even a bad argument.

You can't pretend it's not contradictory, though, in a document talking about rights and liberty, and that was the question posed.

The original was contradictory, it was the result of a political compromise. The current version is not - not legally anyway. Three new amendments to the constitution made the earlier contradictions about slavery a dead letter of no legal effect.

That is what amendments do - they change things, and those ones came at no small price. So what is the point about complaining about a problem that six hundred thousand people already lost their lives in a successful attempt to resolve? Slavery has been illegal in this country for a century and a half.

> while establishing slaves as 3/5 of a person for Congressional representation

No argument against your point, but a similar[0] Constitutional issue persists today:

Residents of Wyoming are established as 3.23 people for Congressional representation.

Residents of California are about 4/5ths of a person.

[0] Nothing is similar to slavery, and specifically here the fact that the voting power of these 3/5ths allocations was given to people who did not represent the interests of the humans that comprised the allocations in the first place!

> > while establishing slaves as 3/5 of a person for Congressional representation

> No argument against your point, but a similar Constitutional issue persists today:

Yes, a very similar issue does exist, but the one you are pointing to is not similar.

> Residents of Wyoming are established as 3.23 people for Congressional representation.

The unequal weighting of population for representation in (in descending order of distortion) the Senate, Electoral College, and House as a whole is not really similar to the awarding of extra weight to those who are permitted by the State to vote specifically for people denied liberty as was done in the 3/5 compromise.

The fact that those disenfranchised by felony disqualification are counted—and as whole persons, not 3/5—especially given the way targeted criminalization and penal servitude directly replaced chattel slavery, is, OTOH, a very similar issue.

I believe you're expanding on my footnote, and I agree.

In addition to felons (permanently disenfranchised in most states), you have temporarily-disenfranchised prisoners, and prison-based population distortions that favor some districts over others.

You could probably make an even greater comparison between the voting powers of:

  - a Californian living in a district with high noncitizen population
  - a Wyomingian living in a district with a large penitentiary

WY and CA already start at a 4:1 disparity.

I don't see how you can count a illegal immigrant who can't legally hold a job or have a bank account as a free person either.

How do you understand the original intent?

> Civil forfeiture allows police to seize — and then keep or sell — any property they allege is involved in a crime. Owners need not ever be arrested or convicted of a crime for their cash, cars, or even real estate to be taken away permanently by the government.

--[1]

They don't need to prove or even charge you to take property from you. It's robbery.

The law needs to require a warrant issued by a judge to sieze the property. The property siezed needs to be stored as evidence, kept separate from other budget items in law enforcement organizations so that it cannot be used to cover expenditures (through auction or otherwise), be under the same sort of provisions as indefinitely holding individuals without charges, be returned in total when charges are not brought to trial or when a trial results in an acquittal, and the material should be subject to destruction after a guilty verdict and appeals are exhausted. Basically, the siezing organization shouldn't be able to use the material proceeds as part of the organizations' operating budgets at any time unless the material is voluntarily submitted by the convicted parties in lieu of levied fines after a conviction. It is evidence, not a funding source.

I'm not saying that the government should not be able to take illegitimately gained property from convicted criminals; but that the incentive to do so for material gains by the government without conviction is rife with the potential for abuse as things currently stand.

[1] https://www.aclu.org/issues/criminal-law-reform/reforming-po....

Seems a simple way would be that people who have assets seized should get the greater of a) $20k OR b) 3x the value of items seized AND c) attorneys fees

At least this allows 1) people to litigate smaller seizures 2) creates disincentives for the more abusive cases

I appreciate that you're offering a solution. I think the proposal would put the burden on tax-payers.

As it should be if the public wants the assets sized.

Someone should have to pay for the collateral policy damage. It seems that the burden should to those who voted for the policy opposed the innocent victims.

Local governments simply cannot be trusted to dole out any punishment that they benefit from financially. We need to fund our courts from taxes, and require punitive fines to be payed by destroying the money instead of by the prosecutor pocketing it.

A great video on the subject: Civil Forfeiture: Last Week Tonight with John Oliver

https://www.youtube.com/watch?v=3kEpZWGgJks

The original intent was to stop drug dealers without having enough to convict. It is difficult for dealers to deal if they lose their car or boat or money. And apparently it is "obvious"the items came from ill gotten gains.