Pubdate: Fri, 19 Sep 2014
Source: Washington Post (DC)
Copyright: 2014 The Washington Post Company
Contact: http://mapinc.org/url/mUgeOPdZ
Website: http://www.washingtonpost.com/
Details: http://www.mapinc.org/media/491
Authors: John Yoder and Brad Cates
Note: 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.
Page: A17
Bookmark: http://www.mapinc.org/af.htm (Asset Forfeiture)

KILL THE PROGRAM WE HELPED START

Civil Asset Forfeiture Was a Good Idea - Until Government's 
Self-Interest Corrupted It

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 oldtime 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.
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MAP posted-by: Jay Bergstrom