Pubdate: Tue, 23 Dec 2014
Source: Dallas Morning News (TX)
Copyright: 2014 The Dallas Morning News, Inc.
Contact: http://www.dallasnews.com/opinion/send-a-letter/
Website: http://www.dallasnews.com/
Details: http://www.mapinc.org/media/117
Author: David Simpson
Note: State Rep. David Simpson, R-Longview, serves District 7 in the 
Texas House.
Bookmark: http://www.mapinc.org/af.htm (Asset Forfeiture)

APPLY DUE PROCESS TO FORFEITURE

Powerful Tool Has Become Another Government Idea Gone Awry, Says David Simpson

"If men were angels, no government would be necessary. If angels were 
to govern men, neither external nor internal controls on government 
would be necessary."

- - James Madison, 1788

Civil asset forfeiture, or forfeiture of contraband as it is referred 
to in Chapter 59 of the Texas Code of Criminal Procedure, is the 
process by which the state may confiscate assets of an individual 
that are alleged to be proceeds or instruments of crime. Current law 
allows such property to be seized even if the property owner is never 
charged, much less convicted. If charges are brought, the seized 
property may be disposed of prior to conviction, or in the case of 
acquittal, does not have to be returned to the owner.

It is a powerful tool in the hands of law enforcement developed and 
often used to attack drug dealers, cartels and human trafficking 
rings. It also has increasingly become a significant source of 
government funds.

Like many government ideas gone awry, the thought behind civil asset 
forfeitures may have had a kernel of sense in it when it was first 
conceived. It is right that the government requires a convicted 
criminal to make restitution, and such restitution should include 
ill-gotten gains. It may well be prudent, too, for civil authorities 
to freeze certain property clearly connected with criminal activity 
until sentencing has occurred.

However, the seizure of property, the fruit of someone's life and 
liberty, in the name of justice, must be performed with care, 
humility and due process, not like highway robbery.

Because of the propensity of government officials to overstep their 
bounds in doing their jobs, our Constitution requires: "The right of 
the people to be secure in their persons, houses, papers and effects, 
against unreasonable searches and seizures, shall not be violated, 
and no Warrants shall issue, but upon probable cause, supported by 
Oath or affirmation, and particularly describing the place to be 
searched, and the persons or things to be seized."

It also stipulates, "No person ... shall be deprived of life, liberty 
or property without due process of law; nor shall private property be 
taken for public use, without just compensation."

Even a cursory reading of those provisions would lead an individual 
to believe that seizure and forfeiture of assets should, at a 
minimum, require a warrant and due process.

But that isn't what always happens. One law enforcement agent told me 
he never uses the criminal forfeiture process because the civil asset 
forfeiture process is much easier. You don't have to convict the 
owner of a crime.

How can government do that, you ask? Well, to get around 
constitutional issues, lawmakers at both the state and federal level 
have created a dual system whereby the assets of an individual are 
named in a case, not the individual. Our state also has a low 
threshold to show that the property may have been used in illegal 
activity. Moreover, the owner of the seized property is presumed 
guilty until he or she can prove their innocence in obtaining the 
property legitimately. Many owners do not even try to recover their 
assets because the cost of obtaining legal representation may exceed 
the value of the confiscated property.

If government officials were omniscient and could never make 
mistakes, this would not be a problem. One official could be 
lawgiver, king and judge. Criminals could be stopped immediately and 
efficiently, and no innocent citizens would be punished.

But like citizens, government officials are not angels, so our 
constitution limits their power and separates it. It requires that 
they pursue justice justly, knowing that their power can, wittingly 
or unwittingly, treat innocent people like criminals.

Our constitutional restraints on government power are like fences; 
they keep the honest people honest. Where our fences of presumed 
innocence and due process have been torn down, we should rebuild them. 
- ---
MAP posted-by: Jay Bergstrom