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The Constitutionality of Civil Forfeiture (2016)


This, along with the private prison systems, creates perverse incentives in criminal justice.


It should be noted that the DOJ started phasing out private prisons last year, and most states don't have any significant number of people in private prisons: Additionally, the prisons folks tend to hear about in terms of abuses, like Rikers in NY, are good old public prisons.


Rikers is a jail, not a prison. It might seem like I'm being pedantic but when you're talking about problems in the criminal justice system it's important to recognize the difference between the two and how the problems and solutions may be different.


I agree that’s true in general. But people can be in Rikers for months and sometimes years (average is over 9 months). So the capacity for the government to abuse prisoners is demonstrated:

I don’t think we should have private prisons, but the level of focus on them is about politics. It’s an issue that unifies the economic left, who support unions and oppose privatization but may or may not care about prisoner abuse, with the criminal justice movement.

But at the end of the day, most prisoners (over 90%) are not in private prisons, and there is little evidence that private prisons are worse than public prisons. The reality is that our government run, union-staffed prisons are really bad. But prisons are a major source of jobs, and public unions that represent prison employees are powerful—and Americans are punitive—so it’s difficult to tackle the real issues.


For someone from Europe...what's the exact difference?


I believe the timeline is that Obama started phasing them out, Trump halted that, and then Biden started phasing them out again. Good reminder that executive action isn’t worth the paper it’s written on either way.

(Perhaps most importantly, most private prisons are not federal)


> Good reminder that executive action isn’t worth the paper it’s written on either way.

That doesn’t at all follow from your previous statement that the executive orders of the last three presidents regarding private prisons have in fact been followed


Seems like they just pivoted:

> Among the immigrant detention population, 40,634 people – 81% of the detained population – were confined in privately run facilities in 2019. The privately detained immigrant population grew 739% since 2002 to 2019.1) Biden’s executive order does not limit private contracts with immigrant detention facilities.


Private prisons are good at silencing prisoners.


[citation needed]


In Justice period. The victims often have no relation to crime or criminal prosecution.

It's not a bug, it's a feature. The system is working as intended. It is no accident that the US has #1 incarceration rate on the planet. A significant portion of the population and and even higher portion of those in government believe manipulation and control of certain groups in the population is more important than any notion of justice or law an order. Their love for their country pales in comparison to their hatred and greed.


> The victims often have no relation to crime or criminal prosecution.

What does this mean?


Let's say someone smoked weed outside your house and right off your property, your house can be taken by the police even if you have no relation with the person and they did not enter your property because your lack of relationship or their history at your property is contested by the government and your house itself is the accused and the evidence therefore being an inanimate object that can't defend itself it now belongs to them. Can't make this up lol


Somebody else used their property to e.g. transport contraband. Often enough, stole it.

Wasn't long ago a twin engine Beechcraft was stolen, used, and confiscated. The owner never got it back because the DEA argued they needed it.


As a current prisoner, one of the nice things about private prisons is that they are so thirsty for profit that a lot of them bypass all the asinine rules about security that government prisons have in order to sell you anything and everything, e.g. games consoles, steel-stringed guitars, etc.

So, while you are more likely to come to grief in a private prison due to them under-spending on guards, health care, physical plant, etc, you will die in luxury as long as your family have money to send you.


When they outlawed general slavery, they specifically enshrined the type of slavery taking place at state penns every day.


And let's not forget the plea bargain. Very few other places use it, and those that do, use it a very tiny fraction of what the US does.


Please bargains themselves aren't terrible. They're only bad because the trial wait times and bail conditions are so bad that innocent people are accepting a plea bargains. If the rest of the system was fair, like with reasonable bond and not waiting years for a trial, then it could still be a valid tool. I won't hold my breath though.


Although I am not a lawyer, One weakness I see in this analysis is that it is taking as precedent things enforced mainly extra-territorially (smuggling) and using it to justify actions that have been mainly enforced domestically (civil forfeiture).

I personally would have a lot less problem with civil forfeiture if it were mainly something enforced at the borders. If someone attempts to smuggle in a bunch of cocaine at the US-Canada border and gets their car and the cocaine confiscated, is not as troubling.

I do have a bunch of issues if someone is driving along in the US, gets pulled over and then gets his car confiscated.

The Constitution and Jurisprudence has made a distinction between actions performed extra-territorially and domestically.

This analysis ignores that distinction and as such IMO does not establish that civil forfeiture as practiced currently is constitutional.


One example of this distinction is piracy. When America was first founded, pirates captured on the high seas were often summarily executed. However, the practice could not be used to justify the police doing that domestically.


> If someone attempts to smuggle in a bunch of cocaine at the US-Canada border and gets their car and the cocaine confiscated, is not as troubling.

But in this case, the person could be arrested and it should be (is?) possible to confiscate the possessions they have on them. But the confiscation should be "against the person", not the object. And if the judicial system can't prove the person was guilty of a crime, and that those possessions were involved, then they should need to return them.

The way things currently work, that same person could be coming across the border with $20,000 in cash on them. The police see it and decide it _must_ be crime related because "who would carry that kind of money on them for any other reason" and confiscate the money... all without actually charging the person with a crime.

And that's bad. And the fact that it's a border issue is irrelevant. At most, the border officers should be saying "we're not comfortable with you bringing that much money over the border in cash, you are denied entry", and sending them back along their way.


Importing cash has other limitations, so your $20,000 example is a poor one. Specifically, imports of financial instruments of $10,000 or more must be declared, following anti-money-laundering laws.


Fun story, you can declare that import of cash. And police can still suspect it of being of criminal origin or purpose.


> mainly something enforced at the borders

Specifically, federal regulations give U.S. Customs and Border Protection (CBP) authority to operate within 100 miles of any U.S. "external boundary."

Roughly two-thirds of the United States' population lives within the 100-mile zone—that is, within 100 miles of a U.S. land or coastal border. That's about 200 million people.

Connecticut, Delaware, Florida, Hawaii, Maine, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island and Vermont lie entirely or almost entirely within this area.

Nine of the ten largest U.S. metropolitan areas, as determined by the 2010 Census, also fall within this zone: New York City, Los Angeles, Chicago, Houston, Philadelphia, Phoenix, San Antonio, San Diego and San Jose.


I think you've hit on the most significant objection to this analysis. The paper even distinguishes between cases decided by the admiralty and "at law," then discards that distinction to push the idea that forfeiture inside of clearly demarcated judicial jurisdictions has precedent.


The smuggler with the car confiscated is a criminal case, not civil forfeiture. The problem is the civil forfeiture with no case.


There is a huge difference between confiscating a bunch of cocaine and confiscating a car. But I do agree that crossing a border is different than not crossing a border (and should be different than simplyb being within 90 miles of the border)


I have to ask on this issue:

Who is in favor of civil asset forfeiture and what is their politics?

When John Oliver airs an episode about it, and Breitbart publishes an oped against it quoting Rand Paul, you can bank on the American public being against it.


The justice system. The unelected police, who profit directly, and the unelected prosecutors and judges who have intimately friendly relationships with those police. When police get a whiff that action could be taken against this funding source, they threaten to drag the politicians as anti-police, threaten stop-work actions, etc. It isn't about what the people want. We live in a police state.


The laws in the US are made by the legislature. If it was as widely opposed as some people believe, it would be done with. The problem is that law-and-order types are always going to side with law enforcement, especially when it concerns them having more power.


It's probably that it doesn't affect most people personally so they don't care, or they have bigger priorities. The legislators don't see it as a big enough issue to act on since it won't win many political points for them.


It's one of those things where nobody will go on record supporting it in abstract but both sides will generally turn a blind eye to it being done to people they don't like.


I'm surprised people still fall for a legal dictatorship masquerading as a democracy that has the audacity to not even teach a TL;DR of law in school to everyone and give periodic updates to the public ensuring all have seen and _agreed_ to the legal dictatorship!

What about the taxation dictatorship? The beauty of institutional dictatorships like Law, Finance & Medicine is they dont die unlike people. Your enemies are the people who control these institutions.

At least the human dictator's like Pinochet, Saddam Hussein, Hitler, Stalin, Franco, and others didnt attempt to hide their existence and their cruelty unlike the institutional dictatorships who pass the buck to another entity if they cant lay the blame on your failings whilst not recognising their own failings!

Trump was more intelligent than most realise when he called for a protest outside the Capitol Building. These faceless individuals who control your life in return for monkey tokens are your real enemies because they control so many people's lives and they only allow you to change the diversionary puppets aka politicians every few years.

When people wise up to whats going on, it always ultimately boils down to the most violent win, with that in mind, be mindful we could all be sleepwalking into another world war to make everyone humble to the puppeteers.


didn't it already get ruled unconstitutional?


No. I believe the most recent high-profile case merely established that state civil forfeitures were subject to the 8th Amendment prohibition on excessive fines:

It's unlikely it would ever be declared unconstitutional. More likely (but still not very) courts will eat around the edges, minimizing the ability of law enforcement to use asset forfeitures as a substitute for proper criminal prosecution. (Note that in the Timbs case he was simultaneously criminally prosecuted, and (IIRC) it was undisputed his vehicle was used in the commission of a crime. Depending on how you look at it, this context could bode well or bode poorly for future judicial reform.) Much more likely still is legislatures passing laws to reign in law enforcement use of civil forfeiture. Still a very long way to go, though.


It occurred to me that civil forfeiture in the US may have been an attempt to regulate highway robbery. The US traditionally had giant swaths of lightly populated territory between population centers. Most other regions of the world with similar dynamics have struggled with lawmen or other highwaymen illegally confiscating property in such situations.

Did we simply make highway robbery legal if it’s done with a badge?


You’re very close - it’s started in maritime law. The idea was if the captain of a ship had committed a crime, or incurred a fine, and then skipped town, you could seize the ship.


I think it’s a bit less nefarious than that & mostly just another way to fuck over minorities & make them submissive to authority.

It isn’t too often you hear about joe average white guy getting held up in a civil forfeiture dispute. Completely innocent aside from not being white on the other hand, it comes to light every now & then.

Without trying to incite a political flame war in these comments - you don’t really hear about the US Republican Party of personal freedoms & ability to shoot & kill anybody who steals from you trying to overturn civil forfeiture.


Timbs v. Indiana is a great case. I've seen too many civil forfeitures where someone lost their brand new $60,000 car because they got some sort of minor traffic infraction.

In theory, Timbs has limited that.

I've not seen it used much in practice yet, but most state and local governments are seriously winding down their civil forfeiture practices anyway due to the changing tide of public opinion from abuse.


Civil Forfeiture goes directly against Constitutional rights and protections. This article makes ridiculous excuses for the practice and in my opinion, the article is disregarded without consideration.


Indeed. By common sense, civil forfeiture as it de facto occurs today is a clear violation of fundamental human rights. If an argument can be made that the process is compliant with some document supposedly enumerating fundamental rights of a person - such as the US constitution - either the argument or the document is flawed.


Civil law in general goes against constitutional protections. Most rights one has in a criminal case don't exist in the civil side.


There is nothing civil about civil asset forfeiture. It is straight up robbery, about the most uncivil government action you can imagine short of rounding suspects up and shooting them.




That's lot of reaching around to dilute and negate the 4th, 5th and 14th Amendments.


All of our rights are under attack. “The End of America” by Naomi Wolf [0] provides a compelling outline of how this has unfolded, and the situation has only gotten worse since its publication.





Civil law is being increasingly used to avoid rights. Right to a lawyer, right to proof beyond a reasonable doubt, right to be present at your hearing, etc. We see it with this, we see it with red flag laws, we see it with the abused of restraining orders in divorces.

If they can't get it done in criminal court because rights get in the way, then they just create a civil path for it.


A great example of this circumvention is Texas permitting civil cases to target individuals that get abortions, because their criminal laws got stomped as unconstitutional.




This is on the long list of reasons why the US sometimes seems to be hostile to its own citizens.


Sometimes? The US is and always has been hostile to some of its citizens.




>> and the fact that claimants are not afforded the procedural protections that the Constitution requires for criminal defendants.

This is a hit piece on the constitution. The secure in our possessions language is plain and simple. To pretend those protections are more nuanced is disingenuos.






That’s because forfeiture is a civil claim against assets not a criminal procedure against a defendant. It’s argued that those assets were not the defendant’s to begin with.


Its basis is in abandoned property that was likely illegally obtained, where they can't find an owner. Such as a ship in a harbor full of illegally imported goods.

It's been stretched to include having $2k in cash in your car while driving.


According to the article, it looks as if it originates in admiralty "prize" law, which seems to be about buccaneers like Francis Drake; and later extended to the colonies, to allow seizure of ships and their contents trading with a colony without authorisation (e.g. not a British ship, or duty not paid).


Except for all the cases when they obviously are, making the whole process a blatant end run around the fourth amendment.


That would be fine with me if the onus was on the government to prove the assets weren't legally acquired. Now it is up to the person to prove the assets were legally acquired.


I’m just explaining the rationale. At this point it’s a moral discussion rather than legal: does the “war on drugs” et al trump individual rights? If yes, you’d be in favor of forfeiture, if not, you’d be against.


A thief can always explain why he was perfectly justified in stealing.


Probably won’t cut it.


In a civil suit, you don't get the assets until you win (and maybe not even then).

Here, the government takes them by force immediately, and you have to fight for them back. Not the same thing.


And you have to fight even for the ability to prove you have "standing" to fight for them back.


>> That’s because forfeiture is a civil claim against assets not a criminal procedure against a defendant.

The constitution makes no distinction between criminal or civil here. It makes a blanket statement that the government won't take your stuff.


No, "in rem" civil forfeiture says that the items are a guilty party in the criminal action. It is no different to putting a person in pretrial detention until their case reaches trial.


I did not read the article and do not care whether civil forfeiture is constitutional. It is in my eyes one of the most disgusting things government does to its constituents and has no place in any civilized country. It is a crime. If constitution allows it then the constitution got to be fixed,


You might not care whether it is constitutional, but the law sure does.


Oh please, the people in power in the system ("the law") don't care because it'll never affect them.


Law can declare that the Earth is flat. Does not mean I have to believe in it.


And they'll confiscate the earth because it transgressed the law by being round.


The fact that the practice exists would seem to argue against that.