Civil Asset Forfeiture: A Parasitic Paradigm – Part 2

If a law is to be respected it has to be rational and transparent in purpose. People can’t see it as a casino where the house always wins. Civil Asset Forfeiture is a smelly basement that’s got to be cleaned out.

Part 2.

Once upon a time (1663) in England there lived the “Deodand“. It’s a Latin term meaning “something rendered unto God”.

If a horse kicked one of the King’s subjects to death or a runaway wagon crushed a milkmaid on the highway, such property was branded a “Deodand” by the Sheriff and taken into custody. It was arrested because it was an object, animate or inanimate, that had performed an unspeakable act – hence rendering it liable to “Seizure” by the Crown.

Anything guilty of an offense against God was judged in an anthropomorphic context – ie., given human attributes. In a time of superstition and crushing religiosity, it all made some weird sense. Think of it as a form of Biblical restitution. Mankind should know better and his inanimate property should too.

The property owner could plead to the Sheriff not to take it – in such an era a horse or wagon was a dear possession indeed. But, alas! The King needed assets and this was one way to get them. Sorry, ‘ole scrote – better luck next time. Move on now, lest ye have taste for yonder Gaol!!!

Sound familiar?

And so was born Civil Asset Forfeiture, accursed spawn of the Deodand.

Fast forward to now. Police get a Search Warrant based on an informant’s tip. They bust into the suspect’s house where he lives with his wife, three kids, mother and uncle. They find lots of drugs in the common basement. In the closet of one of four bedrooms there’s a safe, inside of which is cash. Beaucoup Dollars. They seize it……

Criminal Trial day arrives. The Search Warrant is found Defective (ie. that it violated the Fourth Amendment to the US Constitution) after the cops testify and are cross-examined by Defense Counsel. It seems that the cops’ “reliable informant” was “leaned on” (roughed up) a bit too much by the boys in blue before he “voluntarily” ratted out the dealer-suspect. All the drug evidence is Suppressed, ie. thrown out and ignored by the judge.

“What else ya’ got?” the judge asks. “Nothin”, cops reply.

Case dismissed.

We’ve already discussed the fact that dismissal of all criminal charges against a suspect doesn’t impact the Civil Forfeiture case, ergo “State vs. Beaucoup Dollars” proceeds forward to Trial.

The now-exonerated suspect, his wife, three kids, mother and uncle all file into court and swear on a stack of bibles that the money is their “accumulated life savings, scrimped and saved by each of them working odd jobs for cash and dutifully squirreling it all away in the safe for their common good”.

The crescendo of this farce is when their mailman shows up and states, under oath, that he, too, has deposited cash monies with this family because they’re “such good people” and they have that beautiful safe…..ergo, part of Beaucoup Dollars is his.

This case actually was tried by a prosecutor friend of mine in NJ.

Now, you may (rightly) question the logic and breathtaking waste of time all this entails. You may specifically be bothered: a) if the only reason why cops were in the subject’s house in the first place was a defective Search Warrant, then b) how can their (unlawful) presence in said house, leading to their discovery of the safe (and Beaucoup Dollars) be the basis of any legitimate Civil Forfeiture trial?

Posited another way, if the cops shouldn’t have been in the Goddamn house in the first instance, why isn’t what they found in the house not immediately returned?

Result? “Hurrumph…..” hacks the judge as he clears his pipes and bangs his wooden gavel down with finality.

“Judgment for the State”. The “Preponderance of Evidence” standard wins again. The Civil Trial Judge is not bound by the Suppression of the Cop’s Search Warrant in the Criminal case…..Preponderance of other Evidence has convinced His Honor that the money is Forfeit.

And so, Beaucoup Dollars once again melts into the amorphous, undulating sea of greenbacks that fuels our government. Law Enforcement gets their “vig”, even though the Search Warrant is bad and the drug case fell apart due to their mistakes.

Ah, good times….victory from the jaws of defeat. Tough luck, Prole. The House always wins. Get back to work…

It isn’t my purpose here to catalogue hundreds of Civil Forfeiture nightmares; setting out the general parameters of what’s going on is more what I’m shooting for.

To see more meat on these particular bones, check out Sarah Stillman’s excellent article in The New Yorker Magazine (2013) entitled “Taken”. Examples of the shortcomings and outright abuse of Civil Forfeiture law are legion and well documented. Throughout the United States, the reek of this doctrine permeates our legal system like some sickening low tide funk.

The answer is sunlight – and honest discourse.

Civil Asset Forfeiture law’s historical antecedents in the nascent United States had all to do with one industry: Smuggling.

Places like Little Egg Harbor, Perth Amboy, South Amboy, Cape May and Sandy Hook in NJ were well known to the seafaring trade – Tory and Revolutionary – as hotbeds of smuggling activity. In fact, less than thirty-three percent of the population of New Jersey gave a tinker’s damn for the Revolution or George Washington and his hated “scrip” money called “Continentals”. The British paid in pounds or Spanish pieces of eight. Specie with real value.

People in Jersey made a good living playing both sides against each other until Independence was a cold reality.

It was after the Thirteen Colonies started its life as a country that it realized it had precious few sources of government revenue. There were, after all, no income taxes yet.

It tried to tax whiskey (actually corn moonshine) but had to quell an armed insurrection in Pittsburgh before a compromise was reached (The Whiskey Rebellion).

Smuggling took a huge bite out of Government’s legitimate duty collections at ports like Newark, New York and Boston. Piracy was also rampant. The sea was the Internet of the day and the highway of commerce. How could you tax cargos that were at the mercy of sea Captains practised at avoiding nests of counting houses and harbor officials? These guys – called Privateers – were legendary. New Jersey actually has towns named after them.

The US Navy ultimately got involved and the freebooters were soon routed. When caught, their vessels and contents were forfeited.

How do you stop smuggling? Take the Boat – then a supremely expensive article of property. It’s cargo was icing on the cake. Harbor duties slowly rose as captains learned that a new Sheriff was in town and capitulated. The US finally started digging its way out of the debt it incurred fighting England.

Asset Forfeiture even played its part taking properties of Tory sympathizers after the Revolution. Representing Tories trying to get their estates back was 75% of young Alexander Hamilton’s New York City law practice. His fellow member of the NY Bar and nemesis, Aaron Burr, even lined his pockets from the Civil Forfeiture defense racket in Manhattan.

The US government learned early how to scam extra cash. The doctrine of Asset Forfeiture was part of its very fabric of existance since the beginning. These roots run deep – but so does the rot.

Our “Founding Fathers” weren’t fools. They crafted a masterful, enduring document entitled The Constitution of the United States. It memorialized for all time the wondrous liberties Americans would henceforth enjoy. The drafters of the Constitution were (mostly) all lawyers. How, then, did they square their lofty philosophical commitments to Justice with Civil Asset Forfeiture law?

They swallowed hard. It was an expedient – and our Founding Fathers were in a bind. They recognized it’s dangers better than anyone but hoped the checks and balances in our system would protect us. But today red lights are flashing. Now Civil Asset Forfeiture law is little more than a cudgel – an archaic, fuzzy legal artifice contorted to make money for cops.

And here lies the virulent, systemic dark side to all of this.

Some legal pundits believe the greatest danger (existential or otherwise) lurking in Civil Asset Forfeiture law today is that it creates a monetary incentive for law enforcement to pursue individuals based on what they own rather than the danger they pose to society. They posit that Civil Asset Forfeiture law enables bad cops to reap a direct benefit from charging offenders.

This becomes painfully obvious when their department enjoys a healthy piece of the action whenever the gavel comes down on Forfeiture lawsuits. Win or lose – whether or not the criminal case succeeds, things like free cars for “undercover” use and judicially “cleansed” cash for supplies like bullet proof vests and new Glocks are regularly passed out like Holloween candy. Trick or treat?

While it’s exceedingly difficult to establish that the sole reason why a police officer charged a marijuana dealer with Possession with Intent to Distribute (a felony level offense triggering forfeiture) is because he wanted to snag the guy’s Mercedes Benz for his Captain, a fragrant fart in the room lingers. Is there a not-so-subtle institutional bias in favor of cops to bankroll or pad their budgets? It’s a capital way to suck up to the Brass (no pun intended).

“We are fortunate we can count on the excellent quality of our Prosecutors and Judges to thwart such abuses…” most State Attorneys General and US Attorneys croke in unison.

Really? I see……the shop worn, “Trust us. We’re from the Government, we’re here to help you…..” story. Sorry.

Actually, when it comes to Civil Asset Forfeiture law, the check is in the mail – but it ain’t coming home to you. This whole parasitic edifice is intellectually dishonest and untenable.

Civil Forfeiture may have been an appropriate way to deal with piracy on the high seas and smuggling in days of yore, but a compelling argument can be made that in today’s law enforcement environment it poses patent and disturbing threats to our most cherished Constitutional rights. If society must recoup its costs inflicted by crime, perhaps a better approach can be crafted along the following lines.

If property is taken from somebody that was ostensibly “used in the commission of or to facilitate the commission of a crime against the state”, address that issue after the jury comes back with a guilty verdict in the criminal trial.

For clarity, let us repeat: prove the guy is guilty before you take his stuff.

Restrain it if you must pending trial (so he doesn’t dispose of it during the prosecution phase), but don’t take title to it unless and until you establish his criminal guilt. Make everything flow from the initial and seminal finding by a Jury that he is, in fact, Guilty.

Make the process fluid and transparent, using the same judge, witnesses and evidence proffered in the criminal case. For mercies sake, don’t change the playing field and goal posts by shifting burdens of proof from “Beyond a Reasonable Doubt” to the lesser, sucker-punch “Preponderance of Evidence” standard. People see clear through such nonsense.

The way it plays now, a veritable feeding frenzy of self-avowed “inncocent owners” come out of the woodwork to testify the seized property is actually theirs – that it’s all a big misunderstanding. Vultures circling for the kill.

Let’s stop the trickery and theater, shall we?

This body of law has to evolve. It has to reflect how society sees itself now and what kind of people we want to be. Our Jurisprudence can’t be something contrived, in league with government enforcers – like police – that seek to self-finance.

Police departments get their budgets approved by town councils every year. Their numbers are finalized after rigorous, public debate. Let everyone live within their budget. It is the citizens that decide, not hoary legal doctrines that have long since outlived their gravitas and decency.

Benjamin Franklin said it best. After the Constitutional Convention adjourned, someone approached him on a Philadelphia street and asked a simple question: “Well, Ben – what kind of government did we get?”

Franklin smiled at the man and said, “A Republic…if you can keep it!”.

God Bless the USA.

Copyright 2021, Jon Croft