When a person holds office in the United States Government, they swear (or affirm) that they will uphold the Constitution. The Constitution is the supreme law of the land, from which all other laws derive their validity.
So consider this language:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
That’s the Fifth Amendment to the United States Constitution. Everybody knows the portion of it that forbids “self-incrimination” (actually, the language is broader than that “nor shall be compelled in any criminal case to be a witness against himself”) But there’s also this part:
nor be deprived of life, liberty, or property, without due process of law
In order by law to justly take someone’s life, deprive them of their liberty, or take their property, it must be with due process of law.
So why the bloody hell does “Civil Asset Forfeiture” even exist? This amounts to taking someone’s property simply because some individual in some position in government–whether a law enforcement officer or some bureaucrat–simply claims that they think the property might be used for, or come as a result of, criminal action.
“But!” say proponents, “we need this to hamstring criminals and deny them the benefits of their criminal activities.”
Oh? You’re taking criminals money? You can prove that, right? In a court of law? You know, with due process. So they can challenge your accusations with evidence and witnesses of their own.
Only they don’t. Indeed, if they could do that, they’d have no need for Civil Asset Forfeiture. Instead, we get:
Police seize $125,000 from a man “believing it to be drug money” without any actual evidence of drug crime (no drugs found, for instance). Oh, a drug dog found the scent of narcotics on the money–which is the case with much of the money in general circulation in the US. The police kept the money even though the person they stole it from (yes, I say stole it from) was not charged with any crime.
Another young man, after saving up money to pursue a music career is stopped and his money confiscated, even though he was not charged with any crime.
The list goes on. A man who makes a respectable win at a legal Nevada Casino is driving home with his cash and has it confiscated. No charges. No evidence of any crime. Just his money taken because he was carrying it as cash. He was luckier than some. He managed to get his money back–less the legal fees the lawsuit to get his own money back cost him.
Civil Asset Forfeiture is an abomination. It’s a direct and obvious violation of the Constitution.
Look, I can accept that sometimes temporarily denying someone’s liberty, or holding/denying access to their property as part of an ongoing investigation can be a part of due process itself. A suspect can be arrested and held. Evidence of a crime can be held pending trial. And so on. But you can’t just take it and keep it. The Sixth Amendment? The one right after the Fifth? It grants the accused the right to a speedy trial so as to prevent just that kind of “punishment through process” (throwing someone in jail, denying their liberty, or taking their property as “evidence”, for an “investigation” that never ends).
It is wrong. That the police do it is wrong. That the courts have allowed it is an abomination.
This thing needs to be stopped. It’s gone on far too long already. Write your Representative, Write your Senators. Write the President. If you’re looking for something you can do easily that might not accomplish much by itself but might at least provide a little nudge. Here’s a petition you can sign.
Let’s put this back in the dust heap of history where it belongs so that future generations can look back and say “man, those people back then were dumb!“
The Writer in Black 
A particularly notable thing about asset forfeiture is how they justify it–why it’s not considered a violation of Constitutionally-guaranteed rights.
They insist they’re charging the money.
That’s right. The money is the defendant. Which is how you get case names like United States v. $124.700 in US Currency. (https://en.wikipedia.org/wiki/United_States_v._$124,700_in_U.S._Currency (I haven’t looked into this case in particular, but the first paragraph appears to be a decent description of the process.)
I want to say something pithy, but even though it’s been years since I learned about it, I’m still in “can’t even” mode.
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Yeah. And since the property isn’t a citizen, or even a person, it has no rights so things like “presumption of innocence” doesn’t apply. Or so they say.
It’s bullshit. Doesn’t matter how they try to finesse it, they are still depriving a person of property without due process of law. And, frankly, I don’t think they believe the excuse themselves. They just hope that folk like you and I will be stupid enough to buy the excuse.
The problem is, for entirely too many people, they’re right.
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Entirely too many people are what they’d call “results-oriented”–and proud of the fact. Which is really obvious in the typical responses to persnickety process arguments–“Are you saying we should just let [X] do [Y]?”
It’s a trial and a half to convince people that how you do things matters a great deal more than any particular thing you’re trying to do–because it leaves the gates wide open for a zillion case examples you’ve never considered. I’ve never really managed myself.
(Particularly as, in this case, I mostly wind up spluttering and going “HOW CAN MONEY COMMIT A CRIME?!?!”)
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As I recall the discussions at the time asset forfeiture became “a thing,” the entire point was that they were depriving a person of property. The rationale was, “this money/property is the proceeds of illegal activity, so we don’t want them to have it available to help pay for their defense in court.”
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And thus, deliberately and with malice aforethought, violating the 5th Amendment. Then came the attempts to “finesse” that violation–“we’re not charging the person, we’re charging the property, which has no rights” BS.
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Congress should be on the hot seat about the abuses in this law, it’s their duty to correct this not Jeff Sessions. This is a law and it’s not up to any official to say “I don’t like this law so I won’t obey it”
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So, basically, “I was only following orders”?
And Sessions does not get a pass because “it’s the law”. When he proposes expanding it, he owns that.
Mind you, it’s no great surprise. Trump himself, while campaigning talked about what a good idea Civil Asset Forfeiture was and was why I added the 4th and 5th to the list of the Amendments he was willing to throw under the bus.
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Even when they return what is taken, they can still screw over the property owner. I read of one case where a man running an airplane charter business was chartered to fly a man and 5 boxes of “company records” from Vegas to LA. At the LA airport, the DEA surrounded the plane, arrested the pilot (later released with no charges), the passenger, and seized the “records” (which actually WERE proceeds of drug sales), AND the airplane. The pilot had no idea that the “records” were boxes of cash. He fought, and got his plane back. In pieces. The DEA DISASSEMBLED it completely, to the point of absurdity. They took the engines apart (the plane was under power at landing, so there was NO way there was something inside the engines other than what was supposed to be there), and disassembled everything they could (keep in mind that airplanes need annual inspections which include checking for corrosion; every square inch of the inside of an airplane can be seen by taking off inspection covers that come off and put back on easily). The cost of reassembly was higher than buying a NEW airplane. The DEA did it out of spite: scumbags.
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I can’t even refer to it as forfeiture. Every time I read about it – which is too often – and comment or share, I call it what it really is: seizure. Asset seizure.
It’s intellectually easier for average folk to pile on when the government decides to pick on “bad” people. Whether they’re actual criminals, or just look like them – or they have habits the majority considers bad – too few think the risk of punishing someone who doesn’t deserve it is an acceptable one. Too many believe due process’s primary function is to let crafty lawyers get guilty clients off on technicalities.
This same mindset enables governments to use sin taxes to subsidize profligate spending, because who wants to defend smokers, soda drinkers and other “scum of the earth.”
Some of my more conservative friends have come around on this issue. Also, Institute for Justice has made great strides in recent years against asset seizure. This gives me some hope that sanity will prevail, though I think it’ll take a few more Supreme Court decisions to put the last nail in the “asset forfeiture” coffin.
Signed at petition & shared this article. Thanks for writing on the topic.
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“The trouble with fighting for human freedom is that one spends most of one’s time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.” H. L. Mencken
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