The casualties are the Fourth and Fifth Amendments to our Constitution.
The 4th says “The right of the people to be secure in their persons, houses, papers, and effects,[a] against unreasonable searches and seizures, shall not be violated.” The 5th says “… nor shall any person … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
Seems pretty clear, right? And yet we have this thing called “civil asset forfeiture” that allows police to seize billions of dollars, cars, and other property even without charging you with a crime. Even worse, it turns our system of justice upside down, forcing you to prove that your property has not been used in any crime in order to get it back (and how do you prove a negative?)
How bad is it? A store owner had his bank account seized because he made cash deposits of his daily receipts in the bank across the street every night. He was never charged with any crime. A man was going to buy a used car and got pulled over by the police. When they discovered the $8,500 in cash he had with him to purchase the car, they seized it. Another man was driving with $28,500 that belonged to a church where he served as secretary, and was going to pay for a parcel of land where his church was planning to build. A cop pulled him over because he looked Mexican (he is from El Salvador). They never even issued him a traffic ticket, but they seized his church’s money.
Actual reasons used by police to justify stopping someone before they seized their property include tinted windows, air fresheners, trash in the car, “a profusion of energy drinks”, “a driver who is too talkative or too quiet”, signs of nervousness, driving over the speed limit, and (my favorite) drivers who were obeying the speed limit were suspect because their desire to avoid being stopped made them stand out.
Two of the main people who established civil forfeiture and ran the federal Asset Forfeiture Office published an editorial recently saying that it has gotten so bad that it can’t be reformed, and should be abolished.
The big problem is that it has become a big money maker for police departments, especially in this era of shrinking local and state budgets. The police have a huge incentive to concentrate on crimes where there is a chance they can seize lots of money or other assets and keep them. And of course, statistics show it happens disproportionately to minorities.
So how did this happen? Well, the police got tired of drug dealers hiring expensive lawyers and beating their convictions, so they decided that the solution was to take away all the money that even looked like it was the proceeds from drug sales before the person was convicted, so they couldn’t hire those expensive lawyers during their trial. To nobody’s surprise, the people who most looked like drug dealers were minorities who had lots of cash on them (no matter what the reason). After all, it is far less suspicious when a white person has lots of money, right?
How did they get away with it? The confiscation of money was done under civil law (hence “civil asset forfeiture”) rather than criminal law (which has far stronger safeguards). Civil law is the law normally used when one private party sues another one, like when you sue for divorce, sue to determine a property line, or sue to obtain compensation for injury. To make it even more confusing, the thing being sued in civil asset forfeiture is the property itself, so there doesn’t even have to be a criminal conviction. And it up to the owner of the property to prove where the money came from (prove that none of it came from potentially illegal activities). Even if they can do that, it is very expensive and time consuming, and recall that the person whose money was seized no longer has anything to pay a lawyer.
According to a judge, civil asset forfeiture is “institutional corruption“. It must be abolished before it makes an even bigger mockery of our legal system.
UPDATE: John Oliver is magnificent showing the absurdity of civil asset forfeiture:
