Pubdate: Tue, 18 Nov 2014
Source: Washington Times (DC)
Copyright: 2014 The Washington Times, LLC.
Contact:  http://www.washingtontimes.com/
Details: http://www.mapinc.org/media/492
Author: Andrew C. McCarthy
Page: B1
Bookmark: http://www.mapinc.org/af.htm (Asset Forfeiture)

THE MENACE OF CIVIL FORFEITURE

Runaway Crime Has Been Replaced by Rogue Executive Power

Whether your metric is the use of the executive branch's awesome 
investigative and prosecutorial powers to punish the administration 
critics, the stonewalling and misleading of congressional 
investigations, or the racially discriminatory enforcement of civil 
rights laws in violation of the Constitution's equalprotection 
principles, the Obama Justice Department is the most politicized in 
the nation's history.

But the conversion of the rule of law from a foundation of ordered 
liberty to a political weapon may have at least one silver lining. 
Growing public alarm over the abuse of executive power spotlights 
some wayward prosecutorial practices that have been building for 
decades. Among them is civil forfeiture. It has devolved from a 
useful tool for defunding major criminal enterprises to a dangerous 
gutting of due process for ordinary Americans.

Like many government initiatives that grow harmful owing to 
inevitable mission See page 14

 From page B1 creep, forfeiture seemed like a fine idea at the start. 
That was the early 1970s, when the nation faced a record crime wave 
driven by organized crime and narcotics-trafficking gangs. These 
enterprises can be very difficult to prosecute: Key leaders are 
insulated, witnesses are afraid to come forward and lavish profits 
enable mobsters and kingpins to hire top-flight lawyers and corrupt 
judicial processes.

Civil forfeiture was one clever way of attacking the problem. Rather 
than targeting the thugs through criminal prosecution, the civil 
approach targeted the instrumentalities that facilitated crime and 
the assets that were its proceeds - either cash or the things that 
money can buy. Although government prosecutors brought the cases, 
they were civil in nature, not criminal. That meant the "defendant" 
was the asset itself (e.g., a car, a bank account, a trove of 
jewelry), not the person whose suspected criminal activity generated 
these assets.

This was a coup for prosecutors because the burden of proof in civil 
cases is significantly lower: The case if proved by a "preponderance 
of the evidence" (basically, prosecutors must show merely that guilt 
is more likely than not), rather than the daunting "beyond a 
reasonable doubt" standard applicable for criminal conviction. 
Moreover, there was great risk for the owner of ill-gotten gains 
subject to criminal forfeiture: By challenging the seizure of his 
property, he could end up providing investigators with valuable 
information about himself that could help build a criminal case.

Civil forfeiture thus became a powerful staple of the government's 
arsenal against predatory criminal enterprises. In the ensuing 
decades, however, Congress vastly expanded it. Nearly half a century 
later, it has so metastasized that asset forfeiture is now available 
for virtually every offense of the federal criminal law.

It was understandable that the dismantling of criminal syndicates 
that were tough to prosecute was a high priority in an era of high 
crime. But the dragnet that civil forfeiture has become has had the 
unintended consequence of depriving ordinary citizens of due-process 
rights. In effect, though their property is targeted because of 
suspected criminal activity, they are compelled either to abandon the 
property without challenge or litigate government seizures without 
such protections as the presumption of innocence, the right to 
counsel and the right to have the government prove every element of 
guilt beyond a reasonable doubt.

Perhaps just as worrisome, asset forfeiture now warps government 
incentives. It is one thing if assets that investigators seize in 
civil litigation are simply turned over to the public treasury for 
general public purposes - such as, say, paying down government debt 
(stop snickering). Yet, with no small prompting from the Justice 
Department, asset forfeiture has become something of a bounty for 
investigative agencies, used as prosecutors and agencies see fit to 
buy equipment, pay sources, underwrite investigative initiatives, and 
generally make more cases.

When I was a prosecutor, federal agencies had to clean up analogous 
compensation structures that, for example, made payments to drug 
informants on the basis of how many cases they made or kilograms of 
cocaine their information helped recover. The payment system 
incentivized the informants to exaggerate criminal activity - and 
even when they didn't overhype their allegations, good defense 
lawyers were able to suggest they had, damaging the effect of their 
trial testimony.

Concerns are thus growing that asset forfeiture, even in the criminal 
context, has gone too far. Last month, the Supreme Court heard the 
Kaley case, involving a couple charged with an obscure medical-device 
fraud. On the basis of the allegation, the government froze their 
assets; meaning, they are unable to retain the counsel of their 
choice even though prosecutors have yet to prove that they've done 
anything wrong. Such cases are increasingly common.

Proposals are also moving through Congress that would heighten the 
government's burden of proof in civil-forfeiture cases and more 
tightly regulate its use of forfeiture proceeds.

It is high time for such reform. We are no longer in an era of 
runaway crime. Now, the problem is a rogue executive branch, from 
which Americans need all the protection they can get.
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MAP posted-by: Jay Bergstrom