From High Seas To Highway Robbery: How Civil Asset Forfeiture Became One of The Worst Forms of Government Overreach
From High Seas To Highway Robbery: How Civil Asset Forfeiture Became One of The Worst Forms of Government Overreach
From High Seas To Highway Robbery: How Civil Asset Forfeiture Became One of The Worst Forms of Government Overreach
History
Ibid.
Although King Charles II voided the Ordinance upon his restoration to the throne, parliament passed several other acts over
the next half-century that allowed the British to seize ships not
in compliance with the stubbornly nationalist sentiments of the
laws.
In 1733, parliament passed the Molasses Act,5 which imposed
heavy duties on imported molasses. The intent of the Act was to
force American colonists to purchase molasses from the British
West Indies, rather than non-British colonies. The Act was wide-
Ibid.
Ibid.
10
13
14
Ibid.
Profit Motive
2003
$500
2004
$571
2005
$612
2006
$1,207
2007
$1,662
2008
$1,421
2009
$1,450
2010
$1,793
2011
$1,804
Government Accountability Office / Justice Assets Forfeiture Fund: Transparency and Controls Over Equitable Sharing Should Be Improved (July 2012)
17
Ibid.
18
Ibid.
There are minimum thresholds on what property can be adopted by the federal government. The minimum threshold for
vehicles is $5,000 and currency and bank accounts are set at
$2,000, for example.18 The Department of Justices Guide to Equitable Sharing does note, however, that [e]xceptions may be
2003
$218
2004
$268
2005
$271
2006
$324
2007
$400
2008
$437
2009
$396
2010
$388
2011
$445
Government Accountability Office / Justive Assets Forfeiture Fund: Transparency and Controls Over Equitable Sharing Should Be Improved (July 2012)
Ibid.
20
Ibid.
Abuse of Funds
21
Ibid.
22
Ibid.
24
Ibid.
25
Ibid.
28
Due Process
he presumption of innocence is a foundational principle of the American legal system. Although this principle
is not specifically enumerated in the Bill of Rights, legal
scholars have found its roots in the Fifth, Sixth, and Fourteenth
Amendments.29
The Supreme Court, in the 1895 case, Coffin v. United States,30
firmly established the implied principle of a presumption of innocence, which, justices noted, dated back to Roman law and was
reflected in English common law. Justice Edward White, who
was appointed to the High Court by President Grover Cleveland, offered the legal background of the principle in his majority opinion in Coffin, and firmly stated its role in the American
legal system.
The principle that there is a presumption of innocence in favor
of the accused is the undoubted law, White wrote, axiomatic
and elementary, and its enforcement lies at the foundation of
the administration of our criminal law.
White called the presumption of innocence evidence in favor
of the accused and explained the meaning of guilt beyond a
reasonable as understood through centuries of law. It is, of
necessity, the condition of mind produced by the proof resulting
from the evidence in the cause, he explained. It is the result
of the proof, not the proof itself, whereas the presumption of
innocence is one of the instruments of proof, going to bring
about the proof from which reasonable doubt arises; thus one is
a cause, the other an effect.
To say that the one is the equivalent of the other is therefore
to say that legal evidence can be excluded from the jury, and
that such exclusion may be cured by instructing them correctly
in regard to the method by which they are required to reach
their conclusion upon the proof actually before them; in other
words, that the exclusion of an important element of proof can
be justified by correctly instructing as to the proof admitted. The
evolution of the principle of the presumption of innocence, and
its resultant, the doctrine of reasonable doubt, make more apparent the correctness of these views, and indicate the necessity of enforcing the one in order that the other may continue to
exist, White added.
Darpana Sheth, The Need to Reform Asset Forfeiture, Written Statement before the United States Senate Committee on
the Judiciary, April 15, 2015. http://www.judiciary.senate.gov/
imo/media/doc/04-15-15%20Sheth%20Testimony.pdf
31
Clyde, who told his story in a February 2015 House Ways and
Means subcommittee hearing, wrestled with the IRS over his
money.37 He was never charged or convicted of a crime, but
his livelihood was still in jeopardy. I did not serve three combat
tours in Iraq only to come home and be extorted, he told the
committee. He eventually reached a settlement that required
him to forfeit $50,000, not including the $100,000 he paid in
legal fees, to get the remainder of his money back.
36
This ploy became routine for the IRS. In a February 2015 report,
the Institute for Justice noted the IRS seized $242 million in approximately 2,500 structuring cases.38 In about a third of these
cases, no criminal activity other than structuring was suspected.
Dick M. Carpenter II and Larry Salzman, Seize First, Question Later: The IRS and Civil Forfeiture, Institute for Justice,
February 3, 2015. http://www.ij.org/seize-first-question-later
The Institute for Justice noted that the IRS was rather overzeal-
37
38
ous in its actions. Nearly half of the money seized by the IRS
was not forfeited, the report explained, raising concerns that
the IRS seized more than it could later justify to forfeit the cash.
There are many other examples of abuse of federal forfeiture
laws against innocent people. There are, of course, victories in
law by those who fought back against this pernicious form of
government overreach. But these victories often come after the
innocent property owner spends thousands of dollars to fight
the seizure and get their property back in a system where the
odds are stacked against them.
Although this publication focuses primarily on federal forfeiture history, a
separate FreedomWorks publicationCivil Asset Forfeiture: Grading the
Statesoffers a look at state forfeiture laws. In this publication, FreedomWorks found that only four states require a criminal conviction to forfeit property connected to a crime. Thirty-six states put the burden of proof on the
property owner. Only eight states require the government to carry the burden.
Federal Reform
39
40
The success did not last. As ever, Barr explained, Uncle Sam
has moved aggressively to make up that difference in recent
years; raking in more than $1.0 billion in forfeited civil assets in
2013 alone.
More recently, in January 2015, then-Attorney General Eric
Holder announced new restrictions on adoptive seizures and
the Justice Departments Equitable Sharing Program.43 While
the policy change received praise, it was a small move that did
Attorney General Restricts Use of Asset Forfeiture in Structuring Offenses, The United States Department of Justice,
March 31, 2015. http://www.justice.gov/opa/pr/attorney-general-restricts-use-asset-forfeiture-structuring-offenses
45
Scott Shackford, Great News: New Mexicos Asset Forfeiture Reform Bill Signed by Governor, Reason, April 10, 2015.
http://reason.com/blog/2015/04/10/great-news-new-mexicos-asset-forfeiture
46
Reform Principles
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