We're going to start with some Good News, which in this case is tempered Good News, but it's still worth noting.
On Friday, January 16, Attorney General Eric Holder announced he was sharply restricting federal participation in a program under which cops can seize personal property based on their "suspicions" - where "suspicion" is not based on anything demonstrable or even sound but more like on basis of "hey, whatever, sounds good to me."
You may not have heard of this program before, but if you haven't it's time that you did. It is a corrupted and corruption-ridden outgrowth of that abysmal failure known as the War on Drugs. The program is called civil asset forfeiture and it allows cops to seize assets based on nothing more than a claimed belief - not evidence, I remind you, but "belief" - that the assets were involved in, or purchased with the proceeds of, illegal drug activity. They can do this even if they have no basis for any charges against the person possessing the asset. No, I am not exaggerating. Not one tiny bit.
Under this program, cops have seized money, computers, TVs, jewelry, cars, even homes and businesses without ever presenting - or even having to present - a single shred of evidence that the owners had done anything illegal.
Once an asset is seized, it becomes the responsibility of the person whose property was taken to prove that the asset was not obtained through the drug trade, that is, they have to prove a negative and they have the burden of proof in doing it. And remember, this is a civil matter, not a criminal one, so you have no right to an attorney and have to bear any legal costs to try to regain your property out of your own pocket, costs which can easily run to thousands of dollars and exceed the value of the asset. So very often people just give up and don't even try to get their stuff back.
Civil forfeiture is not new: Its practice by the King of England was one of the issues that drove the American Revolution and was the purpose of the Fourth Amendment guarantee of people being secure in their effects against unreasonable seizure and the Fifth Amendment guarantee against property being taken without due process of law. Beyond limited cases such as piracy, civil asset forfeiture was not widely used in the US - until 1984.
That's when Congress passed the Comprehensive Crime Control Act. Until then, the value of assets seized went into the general fund - but this law established a special fund that turned over proceeds from forfeitures to the law-enforcement agencies responsible for them. Which meant most of it went to the cops and prosecutors. Put another way, the cops now had a profit motive for seizing property. The result? At the Justice Department, proceeds from forfeiture went from $27 million in 1985 to $556 million in 1993 to $4.2 billion in 2012.
The horror stories are endless.
- A driver in Texas is stopped for "driving too close to the white line." The cops take both the $3900 he had and his car, based on a claim of an "odor of burned marijuana." No drugs are found. "Don’t even bother getting a lawyer," he's told. "The money always stays here."
- A man is busted for selling $20 worth of pot to an informant. Philadelphia cops move to seize the home where his elderly parents live on the grounds that the sale occurred there.
- Federal officials move to seize a family-run motel because they allege that several times over a period of 15 years some guests had dealt drugs from its rooms. No claim is made that the owners or any of their staff were involved and - get this now - local authorities were tipped to the motel by a federal agent whose primary job is to identify properties for forfeiture.
Since 1984, most if not all states have adopted their own civil forfeiture laws, but many of them come with standards clearly stricter than the federal program, standards involving being able to show actual evidence of related criminal activity. But there was a huge loophole: A federal program called, creepily enough, Equitable Sharing, a program under which the feds could "adopt" seizures made by state agencies, which could then be justified under the looser federal rules. The feds would keep 20% of the proceeds, with 80% going to the local police departments and drug task forces - not, again, to the general fund.
Since 2008, thousands of local and state police agencies have made more than 55,000 seizures of cash and property worth $3 billion.
And in fact there are programs across the country that are instructing local cops in how to use asset seizure to fatten their departmental budgets. One described a house to be seized as a "gold mine." Another described cops drooling over the possibility of grabbing a BMW on the grounds that the driver was drunk.
In a continuing-education program for cops, Mercer (NJ) County prosecutor Sean McMurtry said civil seizure is about
cash or assets that can be utilized by law enforcement: motor vehicles, computers, flatscreens. We’re not interested in taking a charter from a company as forfeited asset because it doesn’t have any monetary value to law enforcement. [My emphasis.]He also told the cops "when in doubt, take it" because "in the worst case scenario, we can always give it back," a worst-case scenario, he hastened to say, that almost never arises.
What's more, it's not true that what's involved is just "assets that can be utilized by law enforcement" to truly investigate crime unless you include paying for bonuses and parties and buying everything from popcorn machines to boats as fitting that description.
Massachusetts is not immune to this. A newspaper investigation a couple of years ago revealed that over the past several years, Massachusetts cops and prosecutors have seized tens of millions of dollars in property via civil forfeiture.
Middlesex County officials have seized not only cash, cars, and bank accounts, but cell phones, computers, an engagement ring, GPS devices, and Lottery scratch tickets. The county DA described whether or not to seize property as "a business decision."
Meanwhile, among the "other law enforcement purposes" on which Worcester County spent money it obtained by seizures were bottled water, attendance at conferences, tree-trimming services, and the purchase of a Zamboni - which, if you don't know, is the machine used to smooth ice at hockey and ice-skating rinks.
Which brings us, at last, back to the Good News: What Holder has announced is that Equitable Sharing is being mostly shut down and federal agencies will no longer be able to "adopt" seizures unless the property includes firearms, ammunitions, explosives, child pornography, or other materials concerning public safety.
Which means that even though local cops can still undertake asset seizures - which is why this is tempered Good News - they will now have to justify them under their own state laws, which are, again, often stricter than the federal standards. The howling that has started to come from some quarters is an indication of the importance of the move.
The move does have a limitation beyond those I just mentioned, however: It does not apply to joint state and federal operations. And therein comes a shadow cast over the Good News, because we're seen too many times how slippery words can be: Don't forget that is was our own Mr. H here who defended the extra-judicial killing of an American citizen on the grounds that "due process and judicial process are not one and the same" and the Executive Branch's unreviewable determination that someone is a terrorist to be killed thus is "due process."
The shadow lies in the exception for joint operations. If that refers to cases of actual on-the-ground inter-agency cooperation, it likely doesn't mean much. But if it includes the hundreds of federally funded anti-drug task forces across country on the grounds that they have a federal liaison, it's a loophole big enough to drive truckloads of seized personal property through.
So that remains to be clarified but for the moment let's take it at face value as a solid step toward ending the whole corrupt and corrupting practice, the whole I can't see how it's not blatantly unconstitutional practice, of civil asset forfeiture. That solid step is good news.
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