Idaho Criminal Defense and DUI Defense Blog

Civil Forfeiture Is Legal Theft...And New DOJ Policy Just Made It Easier

Posted by William Young | Aug 01, 2017 | 0 Comments

"Civil forfeiture is legalized theft." I once heard a judge say this from the bench with a look on his face of utter and complete contempt for such a process. He was right. This is not an issue that most attorneys or judge's disagree on in my experience; This is defiantly not an issue of supporting police or aggressively fighting crime, as the Attorney General would have you believe...It is theft by the people that are meant to protect us in order to help fund their department. Each day we allow it to continue our civil rights erode one step further.

Civil asset forfeiture allows police to permanently take property, including cash, vehicles and homes, from suspected criminals, all without ever having to secure a conviction or even charge the owner with a crime. This is NOT criminal forfeiture, a process where those assets proven to be tied to a crime or criminal enterprise are seized, this is a civil process. Because it is a civil process people who can not afford an attorney are not provided one and the standard of proof is considerably lessened - in essence if your items are seized you have an extreme uphill battle in getting them back. Once forfeited, the proceeds of the property flow back into department coffers.

Let me repeat something important there...Department Coffers...This money is not put back in the general fund, spent to provide education, or spent to help those with addiction problems - All of which would help to prevent future crime - instead the money is placed in the coffers of the department who seized it. This is an inherent conflict of interest so straight forward most children can see it. It has the feel of finders keepers. It encourages police to pursue law enforcement activity that is most likely to provide them with revenue, pointing to instances of police departments using forfeiture proceeds to pay for equipment like cruisers, weapons or even margarita machines

Law enforcement officials often claim civil forfeiture is an important crime-fighting tool that gives them the power to home in on the proceeds of criminal activity, even when they may not have direct proof that an individual has committed a crime. When police officers pull over a car and find a large sum of cash that they suspect is related to drugs, for example, they can take the money even if there are no drugs in the car and even though carrying cash is not illegal in itself.

This is absurd and the founders of our Constitution would be outraged by such a policy. 

The Justice Department paid state and local agencies $4.7 billion in forfeiture proceeds from 2000 to 2013, according to a 2015 report by the Institute for Justice, a libertarian public-interest law firm. The Justice Department inspector general released a report earlier this year finding that the U.S. Drug Enforcement Administration has permanently seized $3.2 billion in cash over the past decade, all from individuals who were never charged with a crime.

To understand this a little better, take a look at John Oliver's humorous but extremely informative segment from 2014.

The Justice Department has now reversed a 2015 policy that had limited law enforcement's power to take cash and other property from individuals who haven't been convicted of a crime, and in many cases haven't been charged with one. The new policy pertains specifically to adoptive forfeitures, which then-Attorney General Eric Holder ended in 2015. The practice had allowed state and local law enforcement agencies to seize property and pass the cases off to federal prosecutors, thereby evading stricter state laws on forfeiture and deferring to more lax federal standards.

The directive also establishes new protocols for seizures of cash totaling $10,000 or less. It holds that such adoptions are appropriate when the seizure is conducted pursuant to a state warrant, or is accompanied by an arrest relevant to the alleged offense. They're also permissible when a state or local agency seizes related contraband along with the cash, or when the owner admits the property is criminally derived. But there's an exception: Agencies can still adopt these smaller amounts of cash even when these conditions don't apply, so long as the U.S. attorney's office first approves the transfer.

A total of 24 states have passed laws limiting the practice, with many changes coming since 2015, amid a growing bipartisan push for reform. “Instead of revising forfeiture practices in a manner to better protect Americans' due process rights, the DOJ seems determined to lose in court before it changes its policies for the better,” said Sen. Mike Lee (R-Utah) in a statement.

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William Young

William Young - Idaho Criminal Defense, DUI Defense, and Trial Attorney


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