[rayiner]

> Civil forfeiture is plain unconstitutional. The legal idea behind it, that property is charged with a crime, and so it doesn't matter if a person is guilty/inocnent or even charged is simply absurd.

Civil forfeiture isn't a punishment for guilt or innocence. It's an adjudication that, more likely than not, nobody has an interest in the property that the law will protect.

Say the police raid a mob stash house and find $10 million in cash. Even if the court cannot figure out exactly who owns the money, it can determine by a preponderance of the evidence that nobody has a legitimate property interest in it because it's more likely than not the proceeds of a crime. Same thing if the property is contraband (drugs, automatic firearms, child porn etc.) There is no need to figure out who owns the property then charge that person because nobody could have a legitimate legal right to contraband. Due process doesn't require anything more than that.

The idea that the "property is charged with a crime" is mistaking the form of the action for the underlying rationale. The cases are styled "U.S. v. 10 cupcakes" because the case is about the legal status of the property, not about any particular person's guilt or innocence.

Now, I think civil asset forfeiture creates more risk of abuse than it is worth, and we should get rid of it. But it's not based on some outlandish legal theory like you imply. If there was a sensible way to cabin it to its purpose (seizing assets that are found in circumstances where it is obvious they are the proceeds of crime), it might even be a good idea.

[zeveb]

> Even if the court cannot figure out exactly who owns the money, it can determine by a preponderance of the evidence that nobody has a legitimate property interest in it because it's more likely than not the proceeds of a crime. Same thing if the property is contraband (drugs, automatic firearms, child porn etc.).

That really shouldn't be the standard of proof. After all, if the property does belong to someone, then to keep it would amount to a hefty fine — to impose it a criminal standard of proof should be required.

If the property itself is contraband and thus inherently illegal, then merely finding that it is itself contraband (to a criminal standard, of course) should be sufficient for the State to keep or destroy it.

If the property is legitimate (e.g. money), though, the State should only be permitted to retain it a) if the owner does not claim it or b) if it can be taken from the owner in a criminal proceeding.

[dexterdog]

I have always thought of a hypothetical where a police officer takes a stack of cash off of somebody under the name of civil forfeiture and then doesn't arrest. The victim them kills the police officer and claims self defense because he was the victim of an armed robbery. I can't say that I would find a fault in his argument.

[harryh]

We can certainly argue about the legitimacy of civil forfeiture, but your statement is absurd. The current law is the current law. When a police officer arrests someone that isn't kidnapping. When they take possession of property that someone gained through illegal means that isn't armed robbery.

[dexterdog]

It is if them don't charge the person. That is my point. He knows he's not getting his money back and the officer is not going to report it because he can't. It's armed robbery, plain and simple.

[harryh]

Civil asset forfeiture is reported in great detail.

[ceejayoz]

http://arstechnica.com/information-technology/2016/09/nypd-c...

> NYPD can’t count cash they’ve seized because it would crash computers: Despite multimillion dollar evidence system, NYPD have no idea how much cash they seize.

> The New York City Police Department takes in millions of dollars in cash each year as evidence, often keeping the money through a procedure called civil forfeiture. But as New York City lawmakers pressed for greater transparency into how much was being seized and from whom, a department official claimed providing that information would be nearly impossible—because querying the 4-year old computer system that tracks evidence and property for the data would "lead to system crashes."

So, you're technically correct. It's reported in great detail. So great they can't actually query the data at all.

[dexterdog]

Are they putting each bill into evidence as an entry or are they using a Foxpro database, or both?

[dzdt]

You describe the theory. But look at the stories of people whose money is taken unjustly by civil forfeiture and then say the reality matches the theory.

[SilasX]

>Civil forfeiture isn't a punishment for guilt or innocence. It's an adjudication that, more likely than not, nobody has an interest in the property that the law will protect.

"The law will no longer protect the ownership of this cash."

'Ah, cool, so it's basically no-man's land, can't count on police to recognize it as robbable, I'll keep that in mind when I take it ho--"

"NO! That is now property of the US government! Step back, thief of legitimate property!"

[rayiner]

"This land doesn't belong to anyone; the U.S. government can therefore claim it as its own."

[xg15]

> Civil forfeiture isn't a punishment for guilt or innocence. It's an adjudication that, more likely than not, nobody has an interest in the property that the law will protect.

How would that apply to the opening story in the article though? There the woman was rightful owner of the car but the crime was conducted by her son. So it seems to me she would have an obvious law-backed claim to the car as she obtained it lawfully and didn't conduct any crimes with it. Yet the judge still refused to return the car.

(The judge's argumentation seems extremely strange to me anyhow though and I can't imagine it would have survived with an attorney present.

He seems to have elevated the already bizarre requirement "prove that the asset was not involved in the crime" to "prove that the asset will not ever be involved in any crimes in the future", which is insane. That case seems to be protection of asset forfeiture mixed with blatant racism.)

[rhizome]

Even if the court cannot figure out exactly who owns the money, it can determine by a preponderance of the evidence that nobody has a legitimate property interest

Proving a negative? I think the crux of this is why an asset's existence creates a property interest of the state. I'm not sure "finders keepers" is a good trait to have in a bureaucracy.

[MichaelBurge]

What about filing a claim of ownership? If the prosecution doesn't formally charge you with a crime within some amount of time after such a filing, you get it back without any further work. If they do, then it's held until the case is over.

It seems like it would allow them to handle abandoned ocean ships or drugs, which are the classical cases. And it lets everyone else get their property back, if they're willing to take the risk of admitting to owning property possibly used in a crime.

[harryh]

What about times where it's obvious that a crime has been committed but it's not clear who committed the crime? In that case there is no one for the prosecution to formally charge.

[MichaelBurge]

There should be some kind of consistent legal principle that tells you when something should be seized by the government.

It can't be, "Anything which is the proceeds of a crime can be seized by the government", because 90% of dollar bills have traces of cocaine on them and would be seizable.

I believe that "Criminals should not benefit from a crime" is one. Then, if someone files the paperwork to claim ownership of some item that was used as part of a crime, and his admission of ownership is not enough evidence to charge him, then in your case it hasn't been shown that a criminal has benefited from a crime when it's given to this person.

If it's known that either a husband or wife took $10,000 to murder someone, and it's unclear who did it, then neither could claim the money without effectively admitting guilt.

If multiple people claim the item, then the problem resurfaces and the government may end up keeping it. Most of the "police seized my $10,000" cases that work people up aren't like that, though.

It's possible that there are other principles that could be used; I don't know of any others that could apply.