Don't steal; the government hates competition: the problem with civil asset forfeiture.

Author:Rothschild, Daniel Y.

"Vices are those acts by which a man harms himself or his property. Crimes are those acts by which one man harms the person or property of another. Vices are simply the errors which a man makes in his search after his own happiness. Unlike crimes, they imply no malice toward others, and no interference with their persons orproperty. In vices, the very essence of crime--that is, the design to injure the person or property of another--is wanting. It is a maxim of the law that there can be no crime without a criminal intent; that is, without the intent to invade the person or property of another. But no one ever practices a vice with any such criminal intent. He practices his vice for his own happiness solely, and not from any malice toward others. Unless this clear distinction between vices and crimes be made and recognized by the laws, there can be on earth no such thing as individual right, liberty, or property; no such things as the right of one man to the control of his own person and property, and the corresponding and coequal rights of another man to the control of his own person and property. For a government to declare a vice to be a crime, and to punish it as such, is an attempt to falsify the very nature of things. It is as absurd as it would be to declare truth to be falsehood, orfalsehood truth. "

--Lysander Spooner (from his 1875 article, "Vices are not Crimes")

  1. Introduction

    There are two types of forfeiture laws. Criminal forfeiture requires a person charged with committing a crime to give up property used to commit the crime or obtained in the act. It is known as an in personam crime, which means that the person is considered guilty of breaking the law. (1) Civil forfeitures, by contrast, are in rem, which means that the object itself is considered guilty of committing a crime. (2) Criminal forfeitures require higher standards of proof than civil forfeitures, since only humans have rights and objects do not (Warchol and Johnson 1996, p. 62). (3)

    The Constitution applies to people only, which means that for criminal forfeiture, people receive constitutional protections; they cannot have their assets seized until and unless they are actually found guilty of a law violation. Criminal forfeiture requires that a person who is accused of committing a crime has a right to a trial. He or she must be found guilty beyond a reasonable doubt. It is up to the prosecutor to prove guilt, and only after the accused is proven guilty may the assets that were involved in the criminal act be seized. Civil forfeiture, on the other hand, does not require such "high standards" (Kelly and Kole 2013, p. 3). This type of confiscation requires only probable cause for one's property to be seized, and the usual legal presumptions are all turned around: the accused has to prove innocence instead of the prosecutor proving guilt. (4) Since civil forfeiture requires less evidence and offers fewer protections than criminal forfeiture, the former is more vulnerable to abuse than the latter. This paper focuses on civil forfeiture and its consequences.

    In section 2, we look at the history of this legal practice. Section 3 discusses modern developments. In section 4, we analyze equitable sharing; in section 5, conflicts of interest. We conclude in section 6.

  2. History

    The legal practice of civil forfeiture arose in medieval times. (5) It was based on the superstitious notion that it was the object itself that had committed the crime, and the object was forfeited to the king. For example, the crown could seize an object that resulted in someone's death in order to pay for the victim's funeral (Williams, Holcomb, and Kovandzic 2010, p. 10). The common idea that guns cause crime and not the person pulling the trigger is a contemporary example of such a superstitious belief. Civil forfeiture is based on the notion that inanimate items have minds of their own. Taken to its logical conclusion, the only murderers who should be incarcerated are those who killed victims with their own bodies; if a man used a knife or a gun to murder someone, the murderer should be set free, while the gun and knife are imprisoned. (6)

    Civil forfeiture is an old concept that existed in the common law (Doyle 2008, p. 2). However, its employment in the United States is based on the British Navigation Acts (BNA) of the mid-seventeenth century, which required that imports and exports to and from Britain be carried on ships bearing that nation's flag. If the acts were violated, then "the ships or the cargo on board could be seized and forfeited to the crown regardless of the guilt or innocence of the owner" (Williams, Holcomb, and Kovandzic 2010, p. 10). The justifications for such laws were to ensure protection against pirates seizing cargo and to collect customs duties. The government justified taking ownership because it was impossible to seek justice against property owners, since they were overseas. (7) Former US Supreme Court justice Joseph Story defended this practice, stating that the "vessel which commits the aggression is treated as the offender, as the guilty instrument or thing to which forfeiture attaches, without any reference whatsoever to the character or conduct of the owner ... from the necessity of the case, as the only adequate means of suppressing the offense or wrong, or insuring an indemnity to the injured party" (Williams, Holcomb, and Kovandzic 2010, p. 10). The justification for adopting this practice was that it was going to be used in a limited manner, in cases where it was almost impossible to locate the victim.

    Throughout most of US history, the use of civil asset forfeiture was a rarity. It was utilized during the War between the States of 1861 and during alcohol prohibition (Pimentel 2012, p. 10). Unfortunately, civil asset forfeiture has been common practice since 1984 (Kelly and Kole 2013, p. 4).

  3. The Modern Era

    In order to take the profit out of drug money, the Comprehensive Drug Abuse Prevention and Control Act of 1970 was passed (Blumenson and Nilsen 1998, p. 44). The funds the police seized were deposited in the Treasury's general...

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