Pubdate: Sat, 21 Nov 2015
Source: Honolulu Star-Advertiser (HI)
Copyright: 2015 Star Advertiser
Contact: 
http://www.staradvertiser.com/info/Star-Advertiser_Letter_to_the_Editor.html
Website: http://www.staradvertiser.com/
Details: http://www.mapinc.org/media/5154
Author: Jacob Sullum
Note: Jacob Sullum is a senior editor at Reason magazine.

CIVIL ASSET FORFEITURE LAWS DESPERATELY NEED REFORM

During a talk radio debate last week, Tulsa's district attorney, 
Steve Kunzweiler, warned that civil forfeiture reform would invite 
"some of the most violent people in the history of this planet" to 
set up shop in Oklahoma, making decapitated bodies "hung from 
bridges" a familiar sight in the Sooner State.

Last month, Steve Jones, an assistant district attorney, told 
Tennessee legislators "criminals will thank you" for making it harder 
to confiscate people's property.

These are the noises that cops and prosecutors make when people talk 
about restricting their license to steal. A new report from the 
Institute for Justice, which gives the forfeiture laws of both 
Oklahoma and Tennessee a "D-", explains why legislators should ignore 
such self-interested fear mongering.

The I.J. report shows how civil asset forfeiture - which allows the 
government to take property supposedly linked to crime without 
charging, let alone convicting, the owner - exploded after Congress 
started letting law enforcement agencies keep the loot in the mid-1980s.

The Justice Department's Asset Forfeiture Fund collected $4.5 billion 
in 2014, up from $94 million in 1986 - an inflation-adjusted increase 
of 2,100 percent.

Many states followed the federal government's example, giving police 
and prosecutors a financial interest in forfeiture by awarding them 
anywhere from 45 percent to 100 percent of the money it generated.

That gave law enforcement agencies a strong incentive to target 
people based on the assets they own rather than the threat they pose 
- - "to favor the pursuit of property over the pursuit of justice," as 
I.J. puts it.

NEITHER JUSTICE nor public safety was served when cops took $11,000 
in cash from Charles Clarke, a 24-year-old college student, at a 
Kentucky airport last year.

The justification for seizing the money, which Clarke had saved from 
financial aid, family gifts and various jobs, was that his suitcase 
smelled of marijuana.

Clarke, although a cannabis consumer, was no drug dealer, but that 
did not matter under federal law, which allowed seizure of the money 
based on "probable cause that it was proceeds of drug trafficking or 
was intended to be used in an illegal drug transaction."

To keep the cash, the government need only show it's more likely than 
not that the money is connected to drugs in some way.

Even that "preponderance of the evidence" burden, which is much less 
demanding than the proof "beyond a reasonable doubt" required in a 
criminal trial, applies only when the owner contests a civil forfeiture.

According to numbers obtained by I.J., that happens in only 12 
percent of federal cases.

The failure to challenge forfeiture is by no means proof of the 
owner's guilt, since trying to stop the government from keeping your 
property is a complicated and expensive process that often costs more 
than the asset is worth.

And although federal law notionally protects innocent owners from 
forfeiture, they bear the burden of proving they did not consent to 
or know about an illegal use of their property - a reversal of the 
"innocent until proven guilty" rule in criminal cases.

Most states likewise make it easy for cops to take people's stuff and 
hard to get it back. That's why you can lose your home if your son 
sells pot there, lose your pickup truck if he installs stolen parts 
in it, and lose your car if your spouse uses it to find a prostitute, 
even if you knew nothing about the illegal activity that made your 
property guilty in the eyes of the law.

Cases like these have inspired reforms in several states during the 
last couple of years. Most notably, New Mexico and the District of 
Columbia now allow forfeiture only after a criminal conviction and 
channel the proceeds into their general funds.

The latter reform is especially important and especially repugnant to 
cops and prosecutors.

As Steve Jones, the Tennessee prosecutor, explained, law enforcement 
officials rebel at the notion of relying on legislative 
appropriations because "we don't get what we need that way."
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MAP posted-by: Jay Bergstrom