Eric Holder’s changes to civil asset seizures are easily thwarted

POSTED AT 8:01 AM ON JANUARY 21, 2015 BY JAZZ SHAW

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Today’s story stretches well back into last year and it’s one which requires a lot more attention and outrage from the public before any progress will be made, it seems. The subject at hand once again deals with the completely out of control practice of law enforcement officials at the local, state and federal levels seizing the cash, property and assets of suspects and keeping the proceeds regardless of the status of the case. We saw the IRS doing this to small business owners as well as cops grabbing trunk loads of cash without ever bringing charges against the drivers who had it.

Last week, Attorney General Eric Holder took action on this subject, bringing an end to the practice of such seizures absent a conviction for law enforcement efforts involving the federal government.

Attorney General Eric H. Holder Jr. on Friday barred local and state police from using federal law to seize cash, cars and other property without warrants or criminal charges.

Holder’s action represents the most sweeping check on police power to confiscate personal property since the seizures began three decades ago as part of the war on drugs.

That looks like progress at first glance, and I actually give Holder credit for making the effort. Unfortunately, the real world implications are severely limited. As Radley Balko points out this week, the so called equitable-sharing program applies only in limited cases and there are loopholes in which you could drive a cash laden truck through. I’ve had my disagreements with Balko in the past, (particularly over his tendency to attack the police for essentially anything they do) but he’s spot on in this case. Every program which involves federal funding or has even one federal “handler” monitoring activities can still wind up seizing assets in the same fashion under the seizure friendly guidelines for federal programs. And in too many other cases, the police can still fall back on state laws which – at least in some cases – make it just as easy to snatch and grab the goods without the suspect having their day in court.

But perhaps more to the point, Balko correctly notes that none of this addresses the underlying flaw with this theory of government intervention.

The fundamental unfairness of civil asset forfeiture is its basis on the legal fiction that a piece of property can be guilty of a crime. Therefore, forfeiture proceedings are civil, not criminal. This means you can lose your property despite never being convicted of a crime. In fact, in most civil forfeiture cases, the owner of the property is never even charged. Holder’s trying to trim the abuses, but law enforcement agencies at every level are too dependent on the lucre to cut out the process completely. Since the announcement, a few readers have asked on social media what would need to be done to eliminate the practice. It’s pretty simple: Congress could pass a law to tomorrow to require a criminal conviction before the government can keep seized assets. That would end civil forfeiture at the federal level. Any state legislature could do the same thing to end it within a particular state.

It is a cornerstone of the American justice system that you – the individual – are innocent until proven guilty. Your punishment may not be meted out until you’ve had the chance to defend yourself and been found in violation of the laws of the land. But in incidents where these civil forfeitures take place, your property is, in essence, guilty until proven innocent. Once they have their hands on it, you often can not get it back unless and until you can prove that the property is legally yours. In the case of the diner owner linked at the top of this article, the IRS has been sitting on her money for ages with no pending action against her. She simply couldn’t afford the legal costs associated with proving that they needed to return her money.

This is a flatly unamerican way to do business. And as Radley says, it could be stopped almost immediately if the government at both levels had any incentive to do so. The problem is that they have become so addicted to the cash flow to fund their various programs outside of the normal appropriations process that they don’t want to give up the skim. Since there is no motivation for police departments to do the right thing on their own, voters at the state and local level will need to find candidates for mayor and governor who are willing to run on a platform of repealing such abuse and holding them to those promises if elected.

Either way, this is an abomination which needs to stop. Clearly the government should be able to seize (and keep and use) the assets of actual criminals who are convicted in a court of law. But that’s an important qualifier and the bar should never have been lowered on it.