Comment by db48x
Garbage found at the side of the street, no. A bag of heroin found in an abandoned building, certainly.
Garbage found at the side of the street, no. A bag of heroin found in an abandoned building, certainly.
As amusing as that would be, forfeiture is how you get judicial oversight of the process. If someone wants to claim their misplaced drugs then they have to show up at the trial and defend their right to posses them.
Consider a more nuanced, and more common, case: a shipment of batteries labeled as Apple™ products arrives in port. The shipping address indicates that they aren’t going to Apple, but to one Louis Rossmann. Clearly these must be counterfeits, right? Nobody else could possibly be allowed to own items with “Apple™” printed on them, after all. Customs seizes the shipment with the intent to destroy them. If Louis wants them he can go to court to prove that he has a right to own batteries with the word “Apple™” on them.
Clearly we want Louis to be able to clear up the misunderstanding and recover his property (genuine batteries salvaged from damaged phones), and clearly customs doesn’t want to risk storing them forever. Both parties want a definitive end state; they don’t want the disagreement to drag on forever. And certainly Louis wants the oversight of a judge who can ensure that procedure is followed correctly, and that it is the same procedure that was documented ahead of time. It might be an annoying procedure, but at least it is one that he can learn about in advance.
If they suspect the batteries are illegal to have, then once they confirm intentional ownership the government should have a simple choice: give them back or prosecute, and if they lose the case then give them back anyway. He should not have to proactively prove a right to own them.
For items like cash and cars that are not themselves illegal to have and not evidence, then it's even simpler: give them back, and 99% of the time don't take them from people in the first place. Confiscation of ill-gotten goods should happen after a trial proves they're ill-gotten.
What are you worried about with judicial oversight? Is it specifically the case where the owner is unknown? Because in normal cases I think my suggestion has plenty of judicial oversight.
> and 99% of the time don't take them from people in the first place.
I agree with that part :)
But remember we are talking about times when the owner really is unknown. If you’re actually importing counterfeit goods then you probably aren’t putting your own name on the shipping label. Even if Louis exists, he’s probably just an unwitting participant. And to get the batteries back all he has to do is show up and assert under oath that they’re his and that they're not counterfeit.
Also, I don’t say that this is the only possible way to run things. It’s just the way that we solve certain problems, one that we decided upon long ago. It’s definitely being abused and certainly needs to be fixed, but Chesterton’s Fence is relevant. You must know why a thing exists and what problems it is solving before you’re allowed to tear something down. Those problems will not go away, so whatever changes we make we’ll still need to be able to solve them.
And it does have one very good feature: judicial oversight forces law enforcement to document everything that they take on the public record. Those records are kept by an independent branch of the government, too. In principle people ought to be using those records against elected officials to vote out incumbents who abuse asset forfeiture.
> But remember we are talking about times when the owner really is unknown.
And what I'm saying is you don't need civil forfeiture for that. Use the normal process for abandoned property. The idea civil forfeiture being "rooted" in how we handle abandoned property is a bad excuse because we don't use civil forfeiture for abandoned property.
> And to get the batteries back all he has to do is show up and assert under oath that they’re his and that they're not counterfeit.
Is this how you want things to work or how you're suggesting they actually work? I'm pretty sure it's not anywhere near that easy to get your items back. You need a bunch of evidence.
My point is, it really takes the "need" out of the situation.
We have perfectly good ways to handle lost items without forfeiture. Using those systems, the confiscation problem disappears. And if anyone claims a bag of heroin the same way they would claim a lost phone... let them. Then arrest them after they do that.