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Title: These states let police take and keep your stuff even if you haven’t committed a crime
Source:
From The Trenches/VOX
URL Source: http://www.fromthetrenchesworldrepo ... avent-committed-a-crime/145435
Published: Nov 2, 2015
Author: German Lopez
Post Date: 2015-11-02 10:32:53 by Deckard
Keywords: None
Views: 6578
Comments: 15
Most states in America lets police take and keep your stuff without convicting you of a crime. These states fully allow what’s known as “civil forfeiture”: Police officers can seize someone’s property without proving the person was guilty of a crime; they just need probable cause to believe the assets are being used as part of criminal activity, typically drug trafficking. Police can then absorb the value of this property — be it cash, cars, guns, or something else — as profit, either through state programs or under a federal program known as Equitable Sharing that lets local and state police get up to 80 percent of the value of what they seize as money for their departments. So police can not only seize people’s property without proving involvement in a crime, but they have a financial incentive to do so. It’s the latter that state restrictions on civil forfeiture attempt to limit: Police should still be able to seize property as evidence. But the restrictions in some states — such as California and New Mexico — make it so, under state law, they can’t keep that property without a criminal conviction under many circumstances — and therefore won’t be able to take people’s property as easily for personal profit. A minority of states limit forfeiture in different ways. For example, in New Mexico and North Carolina, a court must convict the suspect of a crime before the same judge or jury can consider whether seized property can be absorbed by the state. In Minnesota and Montana, meanwhile, a suspect must be convicted of a crime in court before the seized property can be absorbed by the state through separate litigation in civil court. And in California, the state requires a conviction for forfeiture — but only to financial seizures worth up to $25,000; a boat, airplane, or vehicle; and any real estate. These limitations don’t entirely stop police from seizing someone’s property — cops can still do that with probable cause alone, and hold the property as evidence for trial. But the government won’t be able to absorb the property and its proceeds without convicting the suspect of a crime. This limits police seizures in two ways: It forces cops to show the suspect was actually involved in a crime after the property is seized, and it can deter future unfounded seizures for profit since police know they’ll need to prove a crime. But local and state cops in these states can still use federal law for civil forfeiture. Lee McGrath, legislative counsel for the Institute for Justice, a national nonprofit that opposes civil forfeiture, said that police in most states with restrictions on civil forfeiture can still work with federal law enforcement officials to take people’s property without charging them with a crime. Only New Mexico limits local and state police departments’ ability to work with the federal government in forfeiture cases — by requiring the value of seized property to be more than $50,000 before federal forfeiture can be used. There are other limitations in some states, too. Some state laws don’t let police agencies absorb proceeds from forfeitures into their own budgets, instead directing the funds to the general budget. Advocates say this helps remove the personal financial incentive police have to take and keep someone’s property. But there’s another loophole through the federal law: If local and state cops can work with federal law enforcement, they can still conduct forfeitures and their police departments can keep as much as 80 percent of the proceeds — regardless of what state law says. Despite the loopholes made available through the federal law, groups like the Institute for Justice have praised states for taking steps to limit civil forfeiture — a policy that has long been mired by criticisms and horror stories of police abuse. Critics have long argued that civil forfeiture allows law enforcement to essentially police for profit, since many of the proceeds from seizures can go back to police departments. People can get their property back through court challenges, but these cases can often be very expensive and take months or years. The Washington Post’s Michael Sallah, Robert O’Harrow, and Steven Rich uncovered several stories in which people were pulled over while driving with cash and had their money taken despite no proof of a crime. The suspects in these cases were only able to get their property back after lengthy, costly court battles in which they showed they weren’t guilty of anything. I’ve also covered the story of college student Charles Clarke, who was at the airport when police took his life savings of $11,000. Police said they smelled marijuana on Clarke’s bags — but they never proved the money was linked to crime, and Clarke provided documents that showed at least some of the money came from past jobs and government benefits. The Institute for Justice, which is involved in Clarke’s case, estimates that 13 different police agencies are now seeking a cut of Clarke’s money. It’s stories like Clarke’s that have driven some states to enact reforms. But the federal government and 45 states still fully allow civil forfeiture. “It’s ridiculous. I think it needs to change,” Clarke told me in June. “I don’t think the cops should be allowed to take somebody’s money if they haven’t committed any crime. We’re treating innocent people like criminals.” /cdn0.vox-cdn.com/uploads/chorus_asset/file/4210523/civil%20forfeiture%20law.png)
The limits on civil forfeiture vary from state to state — but federal law leaves a loophole
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The civil forfeiture reforms came in response to criticisms — and stories of police abuse
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Begin Trace Mode for Comment # 12.
#12. To: Deckard (#0)
Historically, asset forfeiture law comes from Admirably law that predates the revolutionary war, and was adopted by the first congress. In more recent times, the application of asset forfeiture was expanded as a tool to be used to combat drug dealers. Of course, when a hammer of a tool is given to the government for one reason, the government has the hammer other targets. It is a civil proceeding. It does not rely upon the guilt of the owner, or upon any criminal conviction. http://www.fear.org/history/Greek_History_of_Forf_England_ColonialAmerica.html In 1844, the Supreme Court, under Justice Story, upheld forfeiture of the ship's cargo in U. S. v. Brig Malek Adhel despite the fully established innocence of the shipowner [Gilmore and Black, 1975:592]. Customs duties provided no less than 70% to 80% of federal revenues during this period, creating an underlying rationale for the court decisions to uphold in rem seizures [Reed and Gill, 1987:66]. The Supreme Court continues to this day to uphold the civil nature of admiralty law, for example, allowing seamen and dock workers to file in rem suits against unseaworthy vessels that have injured them [Baer, 1979:34-36]. https://supreme.justia.com/cases/federal/us/25/1/case.html The Palmyra, 25 US 1 (12 Wheat 1) (1827) The Palmyra 25 U.S. (12 Wheat.) 1 APPEAL FROM THE CIRCUIT COURT OF SOUTH CAROLINA [...] 25 U. S. 7 MR. JUSTICE STORY delivered the opinion of the Court. [...] 25 U. S. 14 [...] Now whatever may be said as to the looseness and generality and consequent insufficiency of the latter clauses of this allegation, the former specifying the Coquette and Jeune Eugenie (upon which alone the proofs mainly rely for condemnation) have, in our opinion, reasonable and sufficient certainty. It was not necessary to state in detail the particular acts constituting the piratical aggression, search, depredation, restraint, or seizure. The general words of the statute are sufficiently descriptive of the nature of the offense, and the particular acts are matters proper in the proofs. We may, then, dismiss this part of the objection. The other point of objection is of a far more important and difficult nature. It is well known that at the common law, in many cases of felonies, the party forfeited his goods and chattels to the Crown. The forfeiture did not, strictly speaking, attach in rem, but it was a part, or at least a consequence, of the judgment of conviction. It is plain from this statement that no right to the goods and chattels of the felon could be acquired by the Crown by the mere commission of the offense, but the right attached only by the conviction of the offender. The necessary result was that in every case where the Crown sought to recover such goods and chattels, it was indispensable to establish its right by producing the record of the judgment of conviction. In the contemplation of the common law, the offender's right was not devested until the conviction. But this doctrine never was applied to seizures and forfeitures created by statute, in rem, cognizable on the revenue side of the Exchequer. The thing is here primarily considered as the offender, or rather the offense is attached primarily to the thing, and this whether the offense be malum prohibitum or malum in se. The same principle applies to proceedings in rem on seizures in the admiralty. Many cases exist where the forfeiture for acts done attaches solely in rem and there is no accompanying penalty in personam. Many cases exist where there is both a forfeiture in rem and a personal penalty. 25 U. S. 15 But in neither class of cases has it ever been decided that the prosecutions were dependent upon each other. But the practice has been, and so this Court understand the law to be, that the proceeding in rem stands independent of and wholly unaffected by any criminal proceeding in personam. This doctrine is deduced from a fair interpretation of the legislative intention apparent upon its enactments. Both in England and America, the jurisdiction over proceedings in rem is usually vested in different courts from those exercising criminal jurisdiction. If the argument at the bar were well founded, there could never be a judgment of condemnation pronounced against any vessel coming within the prohibitions of the acts on which the present libel is founded, for there is no act of Congress which provides for the personal punishment of offender, who commit "any piratical aggression, search, restraint, depredation or seizure" within the meaning of those acts. Such a construction of the enactments, which goes wholly to defeat their operation and violates their plain import, is utterly inadmissible. In the judgment of this Court, no personal conviction of the offender is necessary to enforce a forfeiture in rem in cases of this nature.
#13. To: nolu chan (#12)
-------------------------------------------------- Do you consider this 'tool' to be a constitutional application? Where is this power given to government in the wording of the Constitution?
Top • Page Up • Full Thread • Page Down • Bottom/Latest The U. S. Constitution (Article 3, Section 2) established admiralty courts as federal courts largely based on civil law [Gilmore and Black, 1975:18]. The First Congress continued the practice of juryless trials for maritime violations by statutorily subjecting to in rem forfeiture vessels and cargoes that disobeyed customs laws [Reed and Gill, 1987:66]. Contraband, as well as goods imported in violation of the Embargo Acts or by piracy, continued to be automatically guilty and subject to seizure [Weiner, 1981:232]. Once the African slave trade was outlawed foreign ships that carried slaves into American waters were also subject to automatic forfeiture. In some cases the slaves were sold as property; in other cases slaves were set free and allowed to return to Africa [Noonan, 1977]. Slaves could be seized in rem as cargo, but might later be transformed into persons and freed [Jones, 1987:73]. In 1827, in the Palmyra case, Justice Story first legally defined in rem forfeitures:
It is well known, that at the common law, in many cases of felonies, the party forfeited his goods and chattels to the crown. The forfeiture did not, strictly speaking, attach in rem; but it was a part, or at least a consequence, of the judgment of conviction.... The crown's right to the goods and chattels attached only by the conviction of the offender.... But this doctrine never was applied to seizures and forfeitures, created by the statute, in rem, cognizable on the revenue side of the Exchequer. The thing is here considered as the offender, or rather, the offense is attached primarily to the thing; and this, whether the offense be malum prohibitum or malum in se.... The practice has been... that the proceeding in rem stands independent of, and wholly unaffected by any criminal proceeding in personam [quoted in Reed and Gill, 1987:62].
U.S. Supreme Court
Replies to Comment # 12. --- the application of asset forfeiture was expanded as a tool to be used to combat drug dealers. Of course, when a hammer of a tool is given to the government for one reason, the government has the hammer other targets.
the application of asset forfeiture was expanded as a tool to be used to combat drug dealers.
Of course, when a hammer of a tool is given to the government for one reason, the government has the (power to?) hammer other targets.
End Trace Mode for Comment # 12.
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