To add insult to injury, police departments actually budget in advance based on expected seizures. In other words, if they don't keep pace on seizures, some police programs and/or purchases would have to be cut. Sounds like pretty good motivation to seize whatever you can.
Government self-interest corrupted a crime-fighting tool into an evil
John Yoder was director of the Justice Department’s Asset Forfeiture Office from 1983 to 1985. Brad Cates was the director of the office from 1985 to 1989.
Last week, The Post published a series
of in-depth articles about the abuses spawned by the law enforcement
practice known as civil asset forfeiture. As two people who were heavily
involved in the creation of the asset forfeiture initiative at the
Justice Department in the 1980s, we find it particularly painful to
watch as the heavy hand of government goes amok. The program began with
good intentions but now, having failed in both purpose and execution, it
should be abolished.
Asset forfeiture was
conceived as a way to cut into the profit motive that fueled rampant
drug trafficking by cartels and other criminal enterprises, in order to
fight the social evils of drug dealing and abuse. Over time, however,
the tactic has turned into an evil itself, with the corruption it
engendered among government and law enforcement coming to clearly
outweigh any benefits.
The idea seemed so
simple: Seize the ill-gotten gains of big-time drug dealers and remove
the financial incentive for their criminality. After all, if a kingpin
could earn $20 million and stash it away somewhere, even a decade in
prison would have its rewards. Make that money disappear, and the
calculus changes.
Then, in 1986, the
concept was expanded to include not only cash earned illegally but also
purchases or investments made with that money, creating a whole scheme
of new crimes that could be prosecuted as “money laundering.”
The property eligible for seizure was further expanded to include
“instrumentalities” in the trafficking of drugs, such as cars or even
jewelry. Eventually, more than 200 crimes beyond drugs came to be
included in the forfeiture scheme.
This
all may have been fine in theory, but in the real world it went badly
astray. First, many states adopted their own forfeiture laws, creating
programs with less monitoring than those at the federal level. Second,
state law enforcement agencies and prosecutors started using the
property — and finally even to provide basic funding for their
departments.
Even at the outset, the use of seized property
was an issue. Drug Enforcement Administration agents, for example, might
see a suspected dealer in a car they wanted for undercover work and
seize it. But if the car had an outstanding loan, the DEA could not keep
it without paying the lien. This led to distorted enforcement
decisions, with agents choosing whom to pursue based on irrelevant
factors such as whether the target owed money on his car.
As
time went on and states got into the forfeiture game, the uses became
more personally rewarding for law enforcement. Maintaining an undercover
identity was often no longer even part of the justification for
seizures.
Law enforcement agents and
prosecutors began using seized cash and property to fund their
operations, supplanting general tax revenue, and this led to the most
extreme abuses: law enforcement efforts based upon what cash and
property they could seize to fund themselves, rather than on an
even-handed effort to enforce the law.
Many
Americans are familiar with old-time speed traps, which became so
notorious that most state legislatures reformed their systems to require
local police and courts to deposit traffic fines into the state
treasury to avoid the appearance of biased justice. Today, the old speed
traps have all too often been replaced by forfeiture traps, where local
police stop cars and seize cash and property to pay for local law
enforcement efforts. This is a complete corruption of the process, and
it unsurprisingly has led to widespread abuses.
The Asset Forfeiture Reform Act
was enacted in 2000 to rein in abuses, but virtually nothing has
changed. This is because civil forfeiture is fundamentally at odds with
our judicial system and notions of fairness. It is unreformable.
In
America, it is often said that it is better that nine guilty people go
free than one innocent person be wrongly convicted. But our forfeiture
laws turn our traditional concept of guilt upside down. Civil forfeiture
laws presume someone’s personal property to be tainted, placing the
burden of proving it “innocent” on the owner. What of the Fourth Amendment requirement that a warrant to seize or search requires the showing of probable cause of a specific violation?
Defendants should be charged with the crimes
they commit. Charge someone with drug dealing if it can be proved, but
don’t invent a second offense of “money laundering” to use as a backup
or a pretext to seize cash. Valid, time-tested methods exist to allow
law enforcement to seize contraband, profits and instrumentalities via
legitimate criminal prosecution.
Civil
asset forfeiture and money-laundering laws are gross perversions of the
status of government amid a free citizenry. The individual is the font
of sovereignty in our constitutional republic, and it is unacceptable
that a citizen should have to “prove” anything to the government. If the
government has probable cause of a violation of law, then let a warrant
be issued. And if the government has proof beyond a reasonable doubt of
guilt, let that guilt be proclaimed by 12 peers.
http://www.washingtonpost.com/opinions/abolish-the-civil-asset-forfeiture-program-we-helped-create/2014/09/18/72f089ac-3d02-11e4-b0ea-8141703bbf6f_story.html?hpid=z7
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