CAVEAT: This is not an “Anti-Cop” screed. Cops didn’t craft the Civil Asset Forfeiture Statutes – your government did. Cops, Judges and prosecutors all play their part in this legal drama. I’m sure they’re all honorable men and women. The problem is what forfeited money is used for. State and Federal Asset Forfeiture laws are largely similar. Some subtle state variations apply.
Part 1.
Crime doesn’t pay. We all know that old canard. For a criminal it’s usually a one-way ticket to the hoosegow. Our law enforcement entities, however, have a dirty little secret. The Doctrine of Civil Asset Forfeiture. It’s a yellow brick road that leads them to a candy bucket of millions of dollars every year.
Why aren’t taxpayers raising Hell about this? Why aren’t citizens screaming, demanding that their real estate taxes, gas taxes and other confiscatory levies they drag through life like chains be mitigated by civil asset forfeiture monies? Because as George Carlin used to say – “It’s a private club – and you ain’t in it!”.
Civil Asset Forfeiture is a tortured, convoluted legal artifice so diabolical it can hardly be discussed by many lawyers without their breaking into a grimace. At best it’s disengenuous. At worst it’s insidious. A slippery slope and government-paved road to perdition.
I used to be an Assitant Prosecutor. I once tried to explain the New Jersey state Civil Forfeiture laws to a guy I was prosecuting. The guy instantly saw through it.
“That’s just Bullshit, man!”, he said. “Why don’t they just put a razor to my throat and take my money?”
And that just about sums it up. The problem with Civil Asset Forfeiture is that nobody believes it’s kosher – but there’s so much money in it law enforcement can’t say no.
In the neighborhood I grew up in, we’d have called it a “vig”.
Civil Asset Forfeiture is a body of law few people respect. A good number of prosecutors even hold their noses swimming through its currents. Therein lies its danger: when a law isn’t respected and doesn’t pass a smell test government and its officers lose credibility. People suffer. Bad law hurts everbody.
Let’s dissect this beast.
Consider, first, our legal system. It has two parts – “civil” and “criminal”.
If you shoot somebody with a gun, you get charged with a criminal offense. All the evidence against you is a “Beyond a Reasonable Doubt” burden of proof – the highest, heaviest burden for the state to prove. Why? Because the consequences are prison, ie. deprevation of your liberty. Serious stuff.
If you get rear-ended in a car accident, that’s a “civil” case because you’re looking for money. Your “Burden of Proof” is “To a Preponderance” of the evidence – the lowest burden of facts to prove. Think of it as not 100% proof but at least 51%. You get money if you prove 51% “weight” of your facts to a jury. Halfsies gets you a payday.
In a criminal case you’ve got to hit the 100% mark to a satisfy a jury. Again, why? Because freedom, not money, is at stake.
What’s the easiest “burden of Proof”? Civil. No doubt about it. Putting a guy in prison is hard work. Getting his money, however, is a piece of cake.
The government knows this. Therefore, when they charge somebody with a crime and take (“Seize”) his property allegedly used in commission of said crime, it’s easier to get ownership of the guy’s property (via an Order of Forfeiture) than it is to put the guy in jail.
Sometimes, taking the guy’s stuff is the government’s goal from the gitgo. Like chess, it’s strategy – moving pieces around the board to leverage influence. Some criminals consider prison an occupational hazard – but take their money and house? They’ll start cooperating right quick. They’ll sing like a bird for a deal. It’s magic.
Arresting somebody for a crime oftimes triggers two legal battles.
First, a criminal proceeding against the malefactor wherein the state has to prove his crimes “Beyond a Reasonable Doubt”. As I’ve stated, that’s the highest standard of proof. All jurors have to agree. It’s a full court press with every t crossed and i dotted.
The second leg is a “civil” lawsuit against assets wherein the state has an easier “Preponderance of the Evidence” standard to satisfy before they take the guy’s property. One case has nothing to do with the other. The person charged has to defend both cases at different times and in different courts – sometimes paying two separate lawyers to fight on two fronts. It’s like this in most US states.
Where does the “Forfeited” money and assets go?
The state divies it all up with law enforcement according to some arcane formula they agree on. You’ll never hear of it when police budgets are debated in your town or county. It’s all on the down low. A salacious secret.
If you think your police department is working within their budget that the township committee approved last year – think again. There’s another income source nobody talks about. A piece of what cops take when they arrest somebody. That’s called “Civil Asset Forfeiture”.
Some towns and counties go aggressive. Others are more conservative. But they all have their hands in the till. It’s too good to pass up. Money for nothin’ and chicks for free. Prosecutors and Judges all fall into lock step. The Supreme Court of the US long ago gave Civil Asset Forfeiture their seal of approval.
But surely, you say, the bad guy has to be convicted of a crime before they take his money and stuff?
Actually, no.
The US Supreme Court has said loud and clear that conviction of a crime is not a prerequsite unless a specific state has made it so – and only five US states have.
In most states “a reasonable belief and factual predicate” that something unlawful is going on is sufficient. Because the Asset Forfeiture lawsuit is “Civil” and subject to the lessser (“a Preponderance of the Evidence”) standard of proof, “good faith” and “reasonable law enforcement conclusions and suppositions” can and are submitted to the Trial Judge for his/her consideration. That means they cut the cops some (evidentiary) slack.
CAVEAT: I’m not proposing here that the Asset Forfeiture trial proceedure is purposely bent to favor cops taking people’s assets – I’m just saying that compared to a Criminal Trial, it’s a walk in the park. And the cops have a significant edge.
In an almost unfathomable high strangeness, Asset Forfeiture cases aren’t even filed against the guy who is charged with the crime!
They are filed against the property itself – as if some inanimate object (ie. State vs. One Lamborghini) – is going to jump up and start testifying at trial. The alleged criminal who owns the stuff is just a witness, limited to arguing why the property isn’t tainted by any illegal money or criminal activity. “I got the Lamgorghini from Jay Leno as a gift….but don’t have any Certificate of Title…”
Time for a hypothetical.
Bob is driving his 2005 Honda Civic when he’s pulled over for a broken tail light. The cop approaches his open drivers side window and smells marijuana. Bob has residue in his ash tray and a small bag of weed in the openly visible recess of his console. He just came from work and has $1000 cash in his pocket because it was payday.
Unfortunately, he gets paid off the books because his boss has tax problems. The old “no-paper-trail-for-the-money” trap. The cops arrest Bob for drug offenses and “Seize” his 2005 Honda Civic, marijuana and $1000 cash in his pocket. Cops impound the car and later find twelve more bags of weed in the glove compartment while ostensibly searching for the car registration and “documents”.
Bob’s charges are upgraded to Possession With Intent to Sell – a “felony” level crime (in New Jersey called “High Misdemeanor”) triggering forfeiture. What does that mean? It means that as long as he was charged with a felony or “High Misdemeanor”, cops can take (“Seize”) his property (ie. his Honda and cash) and move before the court to get title (“Forfeiture Proceedings).
Bob later pleads to a lesser offense – “Possession” – and considers himself lucky. And because “Possession” isn’t a Felony or “High Misdemeanor”, the State can’t take his car – right? No!
As long as Bob was charged with a Felony / High Misdemeanor crime, cops can take his car. What he ultimately pleads to (simple Possession, a Disorderly Persons Offense) is irrelevent! “Charge High – Plead Low”…….
The case of State vs. Bob is resolved. But the cops can still proceed in Forfeiture Proceedings (ie. a lawsuit) against the Honda and money! Chances are pretty good, in Bob’s case, they’ll win.
But what if Bob refuses to plead to a lesser offense and goes to Trial on the Felony or “High Misdemeanor” charge? The old “damn the torpedoes, full speed ahead” approach.
The Civil Forfeiture case of “State vs. One 2005 Honda Civic and $1000 US Currency” will continue……. BUT WAIT! What if Bob wins the Trial and a Jury finds him innocent of the Felony / High Midemeanor “Possession With Intent to Sell” charge? Will he automatically get his Honda and money back and get a Dismissal of the Civil Forfeiture case? Nope.
Bob will have to go to Trial in the Civil Forfeiture matter all over again – this time having to prove (under the easier “Preponderance of Evidence” standard) the charges were bogus. Chances are, if he wins the (harder “Beyond a Reasonable Doubt” Evidence standard) Criminal case , he’ll beat the “civil” Forfeiture case – and get his stuff back. BUT – That’s TWO expensive Trials and a lot of lawyer time. Who can afford this?
It’s a “heads I win” or “tails you lose” situation.
Generally, resolution of a criminal matter has nothing whatsoever to do with the civil matter (ie. the “Civil Asset Forfeiture” case filed against the property the cops seized).
In fact, the US Supreme Court has ruled that a plea deal to a lesser crime doesn’t effect a related forfeiture case. He’s still got to “defend” it.
Bob’s legal predicament is illustrative of an incredulous “Catch 22” that – one would think – could never happen in America. Multiple trials about, essentially, the same event. How many bites at the apple does the government need?
TO BE FAIR TO LAW ENFORCEMENT, Bob was driving the car that had drugs in it. He can’t prove where he got the cash. He has no paperwork. The money could have been proceeds of a drug crime. The Judge can easily find a “reasonable” factual predicate that something illegal was afoot and take his car under the law as it presently is. Why, then, the sour taste in our mouths about this convoluted and self-serving system?
All this talk of Criminal “Beyond a Resonable Doubt” standards of Evidence versus the Civil “Preponderance of Evidence” benchmark just confuses everybody. Two trials – in two different Courts with different Rules of Procedure……
What’s goin’ on here?
In some States (NOT New Jersey) it’s called “Plead ’em and Bleed ’em”: charge people with an Indictable crime (Felony / High Misdemeanor), take their property…..then downgrade the case to a Disorderly Persons charge BUT keep the assets! Sometimes the assets are the point “off the hop”. The potential for abuse is frightening.
Now lets ramp this up. Police and Feds raid Tony Montana and seize 1000 lbs of cocaine, his Mansion and three Ferraris. Same rules apply. Criminal charges, civil lawsuits for assets. The state’s take is even greater.
Every cop in this case is smiling ear to ear. And why not? A drug dealing scumbag got what he deserved. In a heavily urban county and “Drug State” (like Florida, for instance), Asset Forfeiture funds can add up to millions, all coming from people who shouldn’t have it in the first place.
The Feds clear hundreds of millions of dollars in forfeited assets every year. In fact, the Federal forfeiture system is nearly all “Administrative” – not even a real Trial. It’s so pro-forma and abbreviated that state prosecutors bend over backwards to angle in a federal charge to they can get tons of dough without the headaches of proceeding to any kind of trial on state criminal charges. The “Feds” got it knocked.
Why do we care? These people smell bad and do bad things. Boo-Hoo.
Well, it’s all shits and giggles when the fictional Tony Montana gets his just comeuppance – but if ever there was a deck stacked against anybody charged with a crime, rightly or wrongly, it’s the Civil Asset Forfeiture statutes.
Every advantage goes to the state and/or Federal authorities.
If, some night, you get your front door busted in and watch cops find a stash of drugs in your son’s room, don’t be surprised if your house is seized and you’re moving into a Motel 6 for awhile. If you shelter your son, his crimes are your problem.
When his “tainted” assets and contraband are found in your home, you’re in it up to your neck. “I didn’t know” isn’t good enough. They have a doctrine called “Willfull Blindness”. If you didn’t know (or should have known) about your kid’s drug business, they can say you willfully looked away – and now must pay for your miscreant parenting by signing over the title to your house or a “proportionate” value thereof.
You can buy all or part of it back.
That’s just the way it is. Oh – and the Ford Explorer your son was driving when he stopped to do a drug sale in the local park yesterday (the one that’s titled to you and your wife), sign it over. Cops love Ford Explorers.
You’re going to need lawyers. Lots of lawyers. Expensive lawyers.
Civil Asset Forfeiture reaches everyone who owns or has any interest in property that cops allege is tainted by illegal conduct, even in some cases when it’s somebody else’s illegal conduct that did the tainting.
According to Forfeiture law, assets soiled by illegal conduct are “evil” and must be sued in a separate civil proceeding to cleanse them. The manipulated result is: let everybody show cause why they should get their property returned – and then, if they can afford it, they can buy it back. But don’t get your hopes up for a quick resolution of anything.
To the average guy criminal charges and forfeiture proceedings are like jumping into a gigantic money meat grinder that can crush the life out of you, your family, your marriage and career.
The state doesn’t just throw you in jail. They reduce you to penury – and have created a satanic mechanism to accomplish just that. Forget about debtors prisons in Dickens’ novels about merry olde England. This ain’t no chapter in Bleak House. Here in the US we just get a judge to sign an order and viola! Move along! Nothing to see here!
“But this is America!” You say . “Where a man is innocent until proven guilty!” If you’re not found guilty of any crime, how can the courts you take what you own? This is the land of the free…..isn’t it?
Oh, the process is all very solumn and legal.
Separate lawsuits against seized assets on the “Civil” side of the system, where an easy-peasey “Preponderance of Evidence” burden of proof sets the pace. The Supreme Court giving their blessing to take goodies even when the person charged is found Not Guilty by a jury of their peers after a criminal trial.
A “compliant” judiciary, batallions of prosecutors and police witnesses dancing a well-orchestrated gavotte in a somber court room drama, all itching to take your money and run. Everybody has their appointed place at the table except that famous blindfolded lady holding the scales of justice.
Don’t get me wrong – there are oodles of Federal cases against big, bad narco kingpins that deserve this sort of thing. But here’s the rub: most state cases are against a car and some money or just money (almost never a huge sum) and taken from a person who is not equipped at all to fight the system. Bully-boy heaven.
And he or she probably needs that car desperately, even more than the few bucks of cash. These people’s lives can collapse like a house of cards when they suffer a catastrophic loss like their only means of transportation. And why do we want their “beater” car, anyway? Are we teaching them some macabre lesson at the expense of our collective dignity? Frankly, it’s ham fisted and embarrassing.
We’re better than this.
Go ahead, Google the docket of filed forfeiture cases in your state. It’s public record. Those are the cases entitled “State vs. One 2007 Cadillac” or “State vs. $4000 US Currency”.
The overwhelming majority of forfeiture cases are against assets whose owners are circling the drain of life in a leaky skiff. It’s almost as if these people are tagged just because the state knows they’ll give up. Title to their stuff is swiftly transferred when a Judge signs a Judgment of Forfeiture.
In fact, most Judgments of Forfeiture transferring property are called “Default Judgments”. These documents transfer assets to the state after the former owner walks away. They lose by default because they just throw in the towel.
Hooray for us! We sure taught them a lesson….
The numbers are staggering. Forfeiture money and asset transfers prosecuted by states alone can easily add up to literally hundreds millions of dollars per year. Google your state particulars. The Feds bring in their own Mother Lode each year and pass some of that largesse along to states, too.
Total forfeiture money throughout the United States can exceed billions of dollars annually from all sources. The powers that be know this. It’s easy money – from people whose pockets are easily picked.
But is this what we consider Constitutional? If we were the Supreme Court, would this pass our smell test?
Why are we allowing government agencies to rake in cash using their offices and badges? Why isn’t this money first dedicated to relieving our collective tax burdens? Cops have their budget approved every year and should live within it.
If a guy with a crooked nose held a gun to your head and took your wallet, you’d say “oh, well…” But what if your own government took it with a Rube Goldberg playbook and jurisprudential sucker-punch? Is this the American way?
Stay tuned.
As I’ll explain in Part 2 – it gets even more bizarre.
Copyright 2021, Jon Croft
