No Comment — August 18, 2010, 11:46 am

A License to Steal

In “The Forfeiture Racket,” an essay in the February issue of Reason, Radley Balko took a close look at the use of civil asset forfeiture cases. He starts with the story of a college student pulled over by traffic cops, searched, and found to have $17,500 in cash. The student was not charged with any offense, but the police thought his possession of the money was suspicious, and they decided to keep it, invoking vague asset forfeiture rights. In fact the money was part of some $50,000 that the young man had received in an automobile accident settlement, but it took him more than a year and several trips to court to get his money back.

The case provides a perfect demonstration of the abusive civil asset forfeiture laws now used aggressively by police around the country. The asset forfeiture rules work hard to reverse presumptions of innocence and burdens of proof—effectively forcing citizens to prove that their money really is their money and establishing what amounts to a presumption in favor of the government’s right to take it. Viewed critically, it furnishes a legal aura to what is really no more than theft, by the government, of private property.

Now Balko looks at how attempts by some states, like Indiana, to impose limitations on these abuses are being effectively short-circuited by law enforcement agencies. Indiana legislators decided that it would disincentivize abuse if the assets forfeited were passed over to the state school system, rather than kept by revenue-strapped law-enforcement agencies. This was sound from a policy perspective, but Balko demonstrates exactly how the law is systematically circumvented by Indiana law enforcement agencies—by passing the baton to the feds, through “settlements,” contracts, and imposition of costs.

Given all of these ways around the law, how much forfeiture money is actually getting back to the school fund in Indiana? Almost none…

Civil asset forfeiture is an unjust, unfair practice under any circumstance. The idea that the government can take someone’s property on the legal fiction that property itself can be guilty of a crime is an invitation to corruption, and provides a way for the government to get its hands on private goods under a lower burden of proof than it needs to actually convict someone (criminal forfeiture, different from civil forfeiture, requires an actual conviction). What’s happening in Indiana, where the entire legal system is essentially ignoring the spirit if not the outright letter of state law, only confirms that once you give government license to steal, it’s very difficult to wrest it back.

Asset forfeiture is usually sold as a weapon for battling organized crime—mobsters and drug kingpins. In such circumstances it is a powerful tool that might be resorted to from time to time by prosecutors who exercise reasonable discretion. But prosecutors around the country resort abusively to asset forfeiture measures against ordinary citizens and petty offenders in an effort not so much to battle crime as to supplement their own budgets. A serious retrenchment in the asset forfeiture statutes is long past due.

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