For years I've thought of writing a post on the despicable use of civil asset forfeiture in the United States but have always found the topic too depressing.
In case you have no idea what I'm talking about, here (without a big burden of links--you can easily google the phrase) is the short version: Despite the Constitution's guarantee of due process of law before depriving any person of property, somehow it has been declared constitutional throughout the United States for both the state and the federal governments to take the property of perfectly innocent citizens when some government agency deems it plausible that that property has been associated with a crime or constitutes the proceeds from a crime. The case is brought against the property; no conviction needs to be obtained for any crime, not against anybody, and certainly not against the owner of the property. The standard of evidence is usually quite low (for example, "preponderance of the evidence" as opposed to the legal "beyond reasonable doubt" that would be required for criminal conviction), no jury is involved, and then the burden is upon the person whose property has been seized to hire a lawyer if he wants to get it back.
I have not read the Supreme Court opinion, in which I'm sorry to say my hero Justice Scalia joined, declaring this practice to be constitutional. I've read that the reasoning had something to do with the seizure of a pirate ship in the 1800s.
Obviously, not only is this practice a gross abuse of power in and of itself, it also simply cries out to be abused in an absolutely blatant and deliberate fashion. As indeed it is. Police departments now count on civil forfeiture to buy their cruisers and other needed equipment, which gives them an incentive to seize people's stuff without due process. Legislatures go along with it because it relieves them of the burden of making unpopular taxing decisions. And bullies in the police force can shake down anybody they like. If you get pulled over for a minor traffic violation and "too much" money is found in your car (where "too much" might be as little as a couple hundred dollars), it can be seized as suspected drug proceeds, and you will probably never see it again. If, unbeknownst to you, a tenant in a rental property you own is growing marijuana, the house may be seized by the government without compensation and without even bothering to convict the grower. (In case you wanted a motive for never owning rental property, there's one.)
Examples of obvious corruption and gross abuse of power against completely innocent people, in cases where no one has committed any crime at all, abound, and I imagine my readers will probably supply some more.
I'm writing this post today because some small measure of reform has come to my own state of Michigan--heretofore one of the worst offenders. An unlikely alliance of the ACLU and the free market Mackinac Center has successfully lobbied for a package of bills recently signed by Gov. Snyder. As the lobbyists openly say, this reform is just a small beginning, and they hope for more. The short version is that these bills raise the standard of evidence somewhat to "clear and convincing" and require that a database be set up to keep track of what asset forfeitures are taking place in Michigan. The hope is that the database can be used to argue for further needed reforms, including most urgently a requirement that a conviction for a crime (somebody's crime, anyway) be secured before assets may be seized. Also needed (and not yet obtained in the current reform) is a requirement that police departments put the value of any assets seized into the state's general fund rather than being able to "police for profit" and earmark seized property to support their local operations. I'm no fan of taxes, but funding police is exactly the kind of thing for which taxes are legitimately collected, and it is a grave injustice to relieve the ordinary taxpayer of the burden of paying for police vehicles by the arbitrary, process-less seizure of property from a few citizens, especially the innocent.
I've thought for a long time that softhearted types (there are plenty in churches) who want to help The Poor need to start thinking outside the box. Instead of assuming that "helping the poor" = More Government, they need to start realizing how the increased strength of the nanny state and the police state are particularly harmful for the underdogs they care about.
This is evident in, among many other places, civil asset forfeiture. Think about a few things: Suppose that you are so poor that you worry about meeting the minimum balance requirements at your bank and so you don't keep a bank account. Instead, you keep your money at home, or in your car. Now the police decide to raid your house because your roommate or your landlord was breaking some law, or they pull you over because your brake light is out, and they find your little pittance of savings and decide that it must be drug proceeds because it's a suspicious amount. Kiss your money goodbye.
Oh, and of course in a civil asset forfeiture you are not entitled to counsel for the defense, because the case isn't against you, no, no! It's against your money, or your house, or your car, and of course those inanimate objects aren't entitled to be represented by a public defender. So if you can't afford to hire a lawyer, you're out of luck. Yet another way in which poorer people are more harmed by corrupt and unjust government policies than people who can afford to fight city hall.
Those at the economic low end of the totem pole or those who do legitimate business in low-income neighborhoods are also more likely to end up in close proximity to other people who are committing crimes, which is more likely to land them in civil asset forfeiture if their assets somehow get "tainted" by someone nearby who broke the law. As I said, a roommate, landlord, someone who borrows your car might cause your stuff to get swept. If you have a small business in the "wrong" part of town, one of your customers could make the wrong use of your foyer or parking lot or could bring stolen goods into the business, and now you could lose your business because it becomes "associated" with crime.
Con-law geek though I am, I don't claim fully to understand how this sort of thing came to be deemed constitutional. But constitutional or not, it's wrong. Dead wrong. It's one place where one would like to think that conservatives, libertarians, and liberals can agree and can get behind changing all of this. Do it for everybody. But if you're the kind of person who wants to do things especially for the poor, then, yeah, definitely do it for them. The practice is so well-entrenched that reform is happening only incrementally, so we need to keep pushing.
Kudos to think tanks like the Mackinac Center for keeping on top of it. May they prevail at the state level in bringing further reform, and may things change drastically at the federal level as well.