Comment by insane_dreamer 4 days ago
The US legal system (unlike some other countries) is built on the presumption of innocence. Civil forfeiture completely contravenes that principle and is therefore essentially extortion and corruption.
>It's never made sense to me, but the standard explanation is that because they aren't accusing a person (the owner of the money), but only accusing an inanimate object
That is correct, but you need to understand the context. It originated in the 1600s as a way for maritime law to deal with pirate/smuggler ships who were operating in international waters, not flying the flag of any nation, and with no registered owner. Charging the ship and its contents with the crime rather than an unknown individual made sense in that context. Applying it to a car registered in the United States, driving down a highway in the United States, and being driven by a US citizen makes absolutely no sense because standard law can and should deal with that situation.
But when you fly people who clearly have an owner (themself) to another country and they don't have a passport, the country holds the airline accountable.
Why not hold the captain of the ship responsible for loading illegal cargo? Isn't this the whole point of a ship's manifest, to record what's on the ship? Like extend it slightly more to also record the legality.
If you never want to get captains to be willing to sail to your ports again… also, manifests can be wrong, or insufficiently descriptive. Manifest may accurately say a container is full of machine parts. But neglect to mention the machine they are parts of is a machine gun.
Airlines seem to have a policy of passports need to be valid (not expire) for six months after the trip.
Our daughter was going overseas and we had to get her passport renewed because it would expire 3 months after she would have gotten home. The country was fine with that but there was a chance that she would show up at the airport and the airline would not allow her to board because it was less than 6 months.
If the airline lets them fly and they're rejected, the airline has to get them back and the airline doesn't want to risk that.
> But when you fly people who clearly have an owner (themself) to another country and they don't have a passport, the country holds the airline accountable.
> Why not hold the captain of the ship responsible for loading illegal cargo? Isn't this the whole point of a ship's manifest, to record what's on the ship? Like extend it slightly more to also record the legality.
Just because an airline lets you fly somewhere, you can still be rejected at the other end. I think it's a bit much to expect every captain to know the legality of everything in their hold, to all destinations, and enforce that.
> I think it's a bit much to expect every captain to know the legality of everything in their hold, to all destinations, and enforce that.
Is it too much to ask? They should be offloading that to whomever they're getting the cargo from and whomever they're getting their cargo from should have a valid import/export license which means they're willing to go through the steps to ship cargo legally.
Even then that would imply some legal personhood on the part of the vessel and it's operations, much like a registered company.
To me it's a leap too far to assign it to a specific object. It has no ongoing operations, it's not a fluid, "living" thing.
But here we are. This is where a more modern supreme court ruling would come in handy I guess.
> This is where a more modern supreme court ruling would come in handy I guess
I'd hate to see how this modern supreme court rules. Odds are likely to be in favor of keeping this policy, especially if some of that money is used to buy an RV or fund fancy vacations
It's the explanation, but it still makes no sense to me. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures..."
You really have to twist that in bizarre ways to come out saying "yeah but we can seize that guy's money."
It doesn't make sense because it's insane mental gymnastics being used to justify obviously unconstitutional conduct. The bill of rights is very, very, clear on this.
The bill of rights applies to criminal law. Civil asset forfeiture falls under 'civil' law (hence the name) which works under very different rules (for example the standard for a finding of guilt in much lower for civil law than criminal). The US Justice system routinely bypasses controls/limits/restrictions placed on it by moving things over to the 'civil law' side.
Nah, it's not. Things sometimes needs to be spelled out so that there's ZERO wiggle room. That's why the universal declaration of human rights had to be so extensive and verbose. There are people that will justify a missing comma as their actions being allowed by the constitution.
It's obviously not, or you wouldn't find so many people (successfully!) arguing against your interpretation.
That's one of the problems with a codified constitution that's as ossified as the one in the US: the language used gets interpreted, and so the meaning of the language depends on the interpretations favoured by whoever's currently holding the reins.
Just don't ask for a "lawyer,dawg" because they don't have one of those.
https://www.washingtonpost.com/news/true-crime/wp/2017/11/02...
In general, it's pretty messed up that there's an exceptionalism about drug related crime (and some other kinds of crime).
Crime is crime. If they don't take custody of a house because some kind of crime X happened there, they shouldn't do it for drug related cases either. They can always arrest the person dealing the drugs and forgeit the drugs themselves.
>> the standard explanation is that because they aren't accusing a person (the owner of the money), but only accusing an inanimate object (the money itself), constitutional protections don't apply
That's easy to refute. By the time they take the cash, hand it to the feds, get a percentage back to locals, then a person wins in court and gets their money back... I don't think they give back the exact same physical cash that was taken as "evidence". So when they say it's evidence they are lying - it's not locked up with other evidence, it's taken to a bank and deposited.
SCOTUS is out of touch with reality. And I'm not reacting to Trump-era decisions - even under Obama, the justices were watering down the Bill of Rights in cases like Salinas v. Texas (2013).
Previously, if you refused to talk to the police, that was considered invoking your fifth amendment right against self incrimination, hence the standard advice from attorneys to keep your mouth shut until they were present. Now, you must explicitly invoke it every time the police question you or your silence can be used against you, even if that silence was in response to informal questioning on the street with no intention of arrest.
It all makes sense when you consider how privileged the modern Court is: few of the justices in 2013 or today have actually worked as criminal defense attorneys, and only one has ever worked as a public defender (Ketanji Jackson, for two years; I will give Ginsburg credit for her work at the ACLU, but that is still a notable step above being a public defender). We haven't even had a justice whose read the law (became a lawyer without getting a law degree from a law school) since the death of Robert Jackson in 1954. (Robert Jackson is also the man behind the famous quote "any lawyer worth his salt will tell the suspect, in no uncertain terms, to make no statement to the police under any circumstances.")
Now, almost all have come from privileged backgrounds, went to Ivy League institutions, live in gated communities, are completely detached from the reality of what the average American knows about the law, and certainly aren't going to be taken advantage of by the cops. It's no surprise we've seen such an assault on our constitutional rights: they don't understand what life is like outside the ivory tower.
> Now, almost all have come from privileged backgrounds, went to Ivy League institutions, live in gated communities, are completely detached from the reality of what the average American knows about the law, and certainly aren't going to be taken advantage of by the cops. It's no surprise we've seen such an assault on our constitutional rights: they don't understand what life is like outside the ivory tower.
In Brazil we have a problem with the Judiciary too, most of it is completely detached from reality, due to these exact same reasons.
Sorry bro, qualified immunity was invented by the courts to prevent that.
> but only accusing an inanimate object (the money itself), constitutional protections don't apply.
The loophole is that money, unlike most other inanimate objects, isn't considered "property".
Any fine should have the option of a court date attached in order to follow due process, like a traffic fine. But many types of fines don't have the presumption of innocence, or the day in court prescribed. Civil forfeiture is an extension of that process, also relying on the fact that money isn't property so taking it away doesn't violate the "no person may be deprived of property without due process of law" constitutional article.
So bitcoins are safe, i assume. And, as a bonus, a dog can't smell it:)
As safe as you can be with a million dollar necklace around your neck... But you're safe from legal civil forfeiture. Abusive forfeiture is a whole other matter entirely and (IANAL) I'm willing to bet the ones committing the abuse will get the presumption of innocence and you will have to prove the abuse.
not necessarily; If the police recently busted a <gun ring/drug deal/insert generic illegal activity> paying for goods with that same style necklace(or any mental gymnastics to link the item type to a crime) then they could seize it as surely it is part of illegal activity.
> accusing an inanimate object (the money itself)
yeah, I know that's the argument, but it flies in the face of all reason
It comes from "we know you're guilty but we can't prove it so we're going to take your stuff away". But that's what presumption of innocence means -- if you can't be proved guilty beyond reasonable doubt then you're not guilty, period! (You might in fact be guilty, but under the law you're not guilty.) Otherwise, there is no presumption of innocence and the police can do whatever they want, just like in some countries where the police are a law to themselves.
You don’t have an expectation of privacy for the outside of your mail, because people can see the outside. The inside of the mail you do have an expectation of privacy, because someone can’t just see the inside of your mail. Unless it’s smelly, because people have noses.
Imagine if the same logic was used for a criminal defense: "Your honor, I didn't kill $VICTIM, it was the $WEAPON that killed $VICTIM".
>unlike some other countries
Like which? Presumption of innocence is pretty universal around the globe. It has made its way into Western nations and parts of Asia via Roman law and is also a principle of Islamic law. There used to be some historic outgrowths that could be called presumption of guilt in England, but even that was more similar to civil forfeiture and not an actual guilt-based legal system.
UK has this addition from the 1994 Criminal Justice and Public Order Act:
> You do not have to say anything. But, it may harm your defence if you do not mention when questioned something which you later rely on in court.
I don't read that as assuming someone is not innocent until proven otherwise at all.
I read that as "Holding back information that may be pertinent in an investigation will be looked upon poorly".
It's not like the US is any better here - If a charge is trumped up or has bolt-ons to get you to take a plea deal, it's exactly the same thing, if not worse.
No, the US is far better.
Silence can’t be used against you.
That is better than silence being used against use.
Conflating that with trumped up charges is irrelevant to that point.
> I don't read that as assuming someone is not innocent until proven otherwise at all. I read that as "Holding back information that may be pertinent in an investigation will be looked upon poorly".
Could you explain how one can exercise their right to silence without holding back information?
> pretty universal around the globe
except in "rule by law" (as opposed to "rule of law") countries like China where if the police say you're guilty, you will be found guilty, 100% guaranteed
IIRC the Napoleonic Code doesn't have presumption of innocence, and countries with a legal system built on that code don't have it either -- but I haven't researched it recently so couldn't say which those are.
What? No. The Napoleonic Code (Code Napoléon) is for civil law in contrast to criminal law. The penal code promulgated under Napoleon is called... the Penal Code, and is not the one that was adopted across Europe. https://en.wikipedia.org/wiki/Napoleonic_Code
The Napoleonic Code was civil law, nor criminal law. It doesn't deal with these issues. And it treated the burden of evidence similarly to how modern civil procedures do. France and all other countries that emerged from it have a variation of In dubio pro reo.
Civil asset forfeiture isn't different in its principles. It's civil meaning there is no right to an attorney, the burden of proof is lower, etc. Essentially, this is an ex parte action against the asset forcing the owner to prove ownership in order to get legal standing to challenge in the court. It's a terrible system, but it utilizes the same principles found in other Civil laws. These lack of protections is why people push back on things like red flag laws and why legislatures are increasingly looking to use these to bypass things in the criminal side (see TX trying to allow actions against abortion seekers, or CA saying they'll do the same to gun owners).
I don't know. I heard about the idea of the similar law being stated by one of the politicians there. I didn't think it was actually passed. I thought the TX law was invalidated pretty quickly, likely before CA could even pass their own version for guns. It seemed like more of a political statement than a real law, which makes sense if they have an auto-repeal clause in it.
Either way, my point was that civil laws seem to be increasing in favor when the politicians and interest groups haven't been able to achieve what they want through the criminal side. Abortion and guns tend to showcase this most as they are the most contentious issues.
Forfeiture is different from seizure. Seizure is perfectly legal, and even ought to be required pending completion of a court case.
Forfeiture is the end means of seizure.. usually. Forfeiture does not require a court case. Forfeiture can, in some circumstances, be determined without a court case. Most often and fairly universally means when no one offers a claim on seized property.
I have read on this a many times myself and have conflict with it. I started off with naturally believing it is violation of 5th + 14th amendments. I only hold now that it is likely a violation of the 14th, but its quite complicated.
Seizure in this sense ought to be illegal given no due process. However, SC has opinions that property itself can be ruled against. Further, has ruled in many instances that innocent owner defense is not sufficient, thus innocent owner must prove that the entrusted party acted out of consent/contract.
I recommend reading 983 article guidelines for asset forfeiture/seizure: https://www.law.cornell.edu/uscode/text/18/983
It is not simple, at all. Most guidelines really are in favor returning property. IMO, timelines could be adjusted so they are a bit harsher on government considering speedy trials are not so speedy anymore.
I'm not a lawyer of course
As you note it's not built into other legal systems. In which case, those other legal systems aren't automatically corrupt or based on extortion.
A legal system is designed to advance a purpose: justice, the protection of citizens, etc.
Assumptions of guilt or innocence aren't immutable laws of the universe. They likely simply reflect prejudices held at the time of creation, or inherited from even older systems, like Roman justice.
This story doesn't hint at corruption or extortion: a plausibly innocent man was swept into a forfeiture system that didn't work as it should.
> a forfeiture system that didn't work as it should
And I'm arguing that the forfeiture system itself contravenes the principles of justice on which the US is founded.
Have you lived in countries where the police can just take away your stuff without recourse because they are a law unto themselves? I have. Trust me, it's no fun.
The history of civil forfeiture is maritime law, which has special conditions:
https://en.wikipedia.org/wiki/Civil_forfeiture_in_the_United...
If you are an innocent person carrying the suspected proceeds of crime, and can prove it's not from a crime, you should not be impacted.
Recourse is built into the civil forfeiture process, afaict. This article is, as I read it, a case of a man using the channels of recourse successfully.
Your portrayal of the police as an arbitrary force that seizes things without recourse is, I think, incorrect.
> can prove it's not from a crime
the problem is that this shifts the burden of proof of innocence on you, instead of the burden of proof of guilt on the authorities. They can say "we have reason to believe you committed a crime to obtain this" and there's not much you can do except to prove them wrong. That goes against "unless you can prove I have a committed a crime, I have committed no crime". That's what I take issue with.
> Your portrayal of the police as an arbitrary force that seizes things without recourse is, I think, incorrect.
You're probably right. There is recourse and procedures, so not quite Wild West level lawlessness. But the system is very much rigged against you if for some reason the police believe (rightly or wrongly) that the assets were obtained illegally or used in illegal activity. And it very much facilitates police corruption since their burden of proof is so low -- who is to say that the police is wrong?
1) yes the burden of proof is shifted, but if the recourse is relatively simple administrative appeal (showing a source of income, a history of savings, a chain of withdrawals, to explain why you have $300,000 in small bills in your trunk) vs hiring a defender and a trial, that's seems like a reasonable trade off.
The history of civil forfeiture in maritime law suggests it arose when you captured a pirate of smuggling vessel. They are loaded with stolen or illegal merchandise. The owner of the vessel is in France. You seize it and send a letter to him saying "hey, if this is yours, come get it and tell us why you have it legally. Otherwise it's ours."
2. Lots of things facilitate corruption. This might be one of them, but even if we eliminated it, corruption isn't likely to go away (it is not the unique driver of corruption). Moreover, it may not be even a particularly significant driver of corruption in general (there may be specific cases where it is) - so removing it wouldn't impact all the forces that generate corruption. So removing it would have little or no impact.
That said, if the perception is that it is a corrupting force, it would be useful to make changes to make it seem less so: have all proceeds go to FEMA, for example, instead of back to the departments. Or specify how the recovered moneys can be spent - on buildings but not salaries - like jail improvements- so specific people cannot uniquely benefit.
And if corruption is the problem generally, addressing it directly is likely to be more effective than eliminating civil forfeiture and letting corruption go unchecked otherwise.
I'm afraid that this happened, where it is so plainly and fundamentally wrong, expresses that something is fundamentally wrong with the police, and I think it is across the USA? as this behaviour is I think widespread?
We have it here in the UK as well, although it's not quite as harsh (except for large amounts of cash, which the police don't consider normal). The seized items were either being actively used in the crime or it can be shown could only have been purchased through proceeds of crime (eg admin assistant earning 20k who was drug dealing) has a million pound house with no other explanation)
It's a very US thing that for every fine principle such as presumption of innocence, there is an equal and opposite "loophole" or way to bend the rules, that is allowed to make that principle far less effective.
I disagree; the gap is way wider in the US than the countries that the US would like to compare itself to. It's easy to say "they're all as bad as each other", but it's usually inaccurate, and always dismissive.
Correct, it's a 'human' thing - nothing peculiar to US.
Another example would be the fine principle of democracy, and the loopholes of gerrymandering and selective voter suppression.
It makes more sense when you ask "Who bears the burden of these loopholes?" and the answer is always "They disadvantage people of colour".
> The US legal system (unlike some other countries) is built on the presumption of innocence.
In theory yes, but in practice, I had to plead guilty to get out of jail after spending 6 months in jail, otherwise I would have had to spend another 6 months in jail just waiting for my trial.
So you are presumed innocent but they don't mind keeping you in jail anyways.
Sorry, but civil forfeiture is 'civil' not legal. The US Justice system has completely bypassed all kind of US Level systems controls/protections simply by reclassifying them as 'civil' not 'criminal' because our protections only apply to 'criminal' law, such as the huge differences in the standards for a finding of guilt between civil and criminal law.
> Civil forfeiture completely contravenes that principle and is therefore essentially extortion and corruption
I hate civil forefeiture, but let’s not get lost in hyperbole. It facilitates extortion and corruption, but so can almost any police power. The problem is in its conflicts of interest and abridgement of due process, particularly, that of elevating probable cause to grounds for the public taking of private goods without compensation.
>It facilitates extortion and corruption, but so can almost any police power.
I'll add taxes to the list.
It's never made sense to me, but the standard explanation is that because they aren't accusing a person (the owner of the money), but only accusing an inanimate object (the money itself), constitutional protections don't apply. Pretty scary that this is accepted as normal!