The scourge of civil asset forfeiture laws

When the police act as predators and see the populace as prey, the result is nothing even close to “law enforcement.”

— Glenn Reynolds

The comment was in response to these items in the news:

Highway Seizure in Iowa fuels debate about asset forfeiture laws

Police use department wish list when deciding which assets to seize

“IF IN DOUBT…TAKE IT!” Behind closed doors, government officials make shocking comments

Public Choice Theory explains why civil asset forfeiture laws inevitably lead to official corruption.  Being inevitable means it was predictable. Too bad Chief Justice Rehnquist didn’t consider that before reaching his decision in Bennis v. Michigan, 516 U.S. 442 (1996), a 5-4 decision upholding the Constitutionality of civil asset forfeiture of an automobile used in a crime even though an innocent party was a co-owner of the car. Rehnquist was joined by O’Connor, Scalia, Thomas, and Ginsburg. Justices Stevens, Souter and Breyer dissented (page 458) and Justice Kennedy filed a separate dissent (page 472).  This is a case where I am in agreement with Justice Stevens and disagree with Scalia and Thomas.  Probably the only time that has happened.

This statement by Justice Stevens in his dissent proves that, at one time, Justice Stevens was in control of his mental faculties: “The logic of the Court’s analysis would permit the States to exercise virtually unbridled power to confiscate vast amounts of property where professional criminals have engaged in illegal acts.” Stevens went on to point out that only contraband, fruits of crime, and tools of the criminal trade are the just objects of forfeiture, and that the government should be forced to offer proof that the property they want to seize meets one of those definitions before they seize it (except that temporary detention of the property may be necessary if it is the sort of property likely to disappear before it can be seized).

I love it when (former) Justice Stevens talks dirty intelligently.

The opinions are good reads, but for an easier read see, Time for civil asset forfeiture laws to go the way of Jim Crow.

A distinction must be made between civil asset forfeiture and criminal asset forfeiture.  The former smacks of a police state and breeds massive official corruption. The latter breeds corruption on a much smaller scale, probably no more than would exist anyway, and it lays upon the foundation of simple justice, that a criminal should not be allowed to retain the fruits or means of his crime.

Criminal asset forfeiture occurs after the crime has been proven, civil asset forfeiture occurs before a crime is proven, and it may never be proven that any crime occurred at all or that the owner of the property seized had any participation in or knowledge of the crime.  Petty crimes should never be the basis for forfeiture of property whose value far outweighs the seriousness of the crime.

All one needs is a simple sense of justice to see that civil asset forfeiture should not exist in a free country.  How in the world some of my conservative heroes on the Supreme Court could have thought otherwise is a mystery I can’t solve.


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