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State-Sanctioned Theft: The Difficulty of Defending Civil Asset Forfeiture

Posted by Alex K. Kriksciun | Apr 19, 2017 | 0 Comments

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Listening to law enforcement defend civil asset forfeiture is like listening to John Gotti explain how the Mafia is good for America.  For those of you that might not be aware what civil forfeiture is, I think Wikipedia sums it up pretty well: it's “a controversial legal process in which law enforcement officers take assets from persons suspected of involvement with crime or illegal activity without necessarily charging the owners with wrongdoing.”  Basically, what it amounts to is state-sanctioned theft.  

Of course, law enforcement loves civil forfeiture.  They get to keep a pretty big percentage of the money that they seize from people, whether those people are convicted or even charged with an actual crime.  Then typical law enforcement argument goes something like this: (1) we only take money from really bad guys such as drug dealers and violent criminals, (2) that money seized gets put back into law enforcement, (3) which is really like giving back to the community, (4) which, in turn, makes the public safer, (5) there are safeguards in place to ensure that money and assets are not taken from innocent owners, so (6) WHAT THE HELL ARE YOU COMPLAING ABOUT?

I love the honesty of this NPR article from 2008 – which I surmise was before the public gained a real appreciation of civil forfeiture.   It features a south Texas sheriff referring to a portion of his highway as a “piggy bank” (for obvious reasons), another south Texas department (policing a small city with a low crime rate) boosting its budget by 25 percent as a result of one seizure and using the money to buy $40,000 digital ticket writers and sniper rifles, and at least four law enforcement agencies FUNDED SOLELY BY SEIZED CASH.

If I stated in my last post that changing the law with respect to mandatory minimum sentences is an issue that everybody seems to be behind, changing civil forfeiture law is something that almost everybody REALLY seems to be behind.  Even Supreme Court Justice Clarence Thomas, who basically never met a cop he didn't like, admitted recently that “This system—where police can seize property with limited judicial oversight and retain it for their own use—has led to egregious and well-chronicled abuses.” 

It has been increasingly difficult to find anyone (other than law enforcement) willing to defend civil forfeiture.  If you google “civil forfeiture,” you will find such varied results as the home site for endforfeiture.com, information on the ACLU's Asset Forfeiture Abuse project, “Policing for Profit” from the Institute for Justice (a libertarian public interest firm), and an article from The Atlantic entitled “The Injustice of Civil Asset Forfeiture” ON THE FIRST PAGE ALONE.  I looked for independent Google results memorializing anybody as being on record defending forfeiture (not including informational news articles).  I got to page 8 and got sick of looking.

So, I get the impression that, as the general public, politicians, and other decision makers become more aware of forfeiture and the abuses inherent to it, there is a steadily diminishing amount of people that want to preserve the practice.  The problem is, the few people that do defend it have lofty perches and their opinion carries a lot of weight.  Our estimable new Attorney General (and Blues Brothers Nazi-lookalike/namesake of two Confederate heroes) Jefferson Beauregard “Jeff” Sessions, III has long been on record as supporting the practice.  When he was chairman of the Senate Budget Committee, Sessions stated that government “should not have a burden of proof higher than in a normal civil case,” that 95% of forfeitures involved people “who have done nothing in their lives but sell dope,” and that there was a proper “judicial process” in place to prevent abuses and takings from people who really have done nothing wrong.  Sessions also stated that he was “very unhappy” with the otherwise bipartisan criticism of the practice.  President Trump recently stated that there was “no reason” to reform police forfeiture practices after meeting with a group of small-and-big town sheriffs who (predictably) told him that they were worried that outcry over forfeiture would put an end to their racket.  Trump basically agreed with them and said that there was “no reason” to consider changing paths.

I'm not a member of the “cash economy.”  I've been in possession of large amounts of cash at one time (up to about $15,000) but it's always been very temporary.  Rather than carrying around lots of cash, I'm that asshole that holds up the line by paying for a single 20 oz. bottle of Diet Coke with a debit card.  Personally, I view cash as an increasingly outmoded median of exchange.  But I recognize that there are people that either like carrying around a lot of cash or do it out of necessity.  Then, there's this local genius that got a call from a girl asking him to pick her up, got to a hotel and informed the girl that he had a large amount of money on him, left AND RETURNED to the hotel, and was subsequently robbed of $90,000 of BP settlement money.  You can't make this stuff up.  In any event, it is very easy for me to understand how and why somebody might be carrying around a lot of cash that is not tied to illegal activities.  Apparently, that notion is very difficult for law enforcement to grasp.  And besides, all U.S. bills contain the phrase “this note is legal tender for all debts public and private.”  If you want to hire me for a case, cash is just as good as a check or a credit/debit card.  In fact, I'd really prefer it because I don't have to pay a processing fee for the card or assume the risk that a check will bounce.  

I have no real objection to seizing money from those who got the paper illegally.  If you're a drug kingpin, I see no justifiable reason for allowing you to keep your ill-gotten gains.  I think that most people would agree with me.  However, there need to be more safeguards in place to ensure that innocent people are not taken advantage of.  First, the notion of only seizing money/property after a conviction should be considered.  It makes no sense to me that the government, federal or state, can take your money and then shift the burden of proof to you to prove that the money was not derived from illegal sources.  Second, there need to be more procedural protections in place.  Finally, every forfeiture statute should contain some sort of a legal “innocent owner” defense.  My understanding is that there is one under federal law, but not under most state laws.  Allowing for such a defense would cut down on the abuses that we see all too often in the mainstream media.

Next time: my story about a (mostly) innocent owner client and how civil forfeiture impacted his case.  Stay tuned.

About the Author

Alex K. Kriksciun

Attorney at Law/Notary Public Alex K. Kriksciun has devoted most of his legal career to defending the rights of people accused of crimes and the rights of people harmed by the negligence of others.  Whether the case involves a municipal citation, a life imprisonment without parole case, a wrongf...

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