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Comment by kbenson | Hacker News Reader

> You can't accuse non-living property of a crime, you can only seize assets as part of a normal criminal proceeding.

Well, this is the heart of civil forfeiture, and without it there isn't any. Civil forfeiture is also how they confiscate contraband, or anything that is itself illegal to own. I imagine without CF law enforcement would be forced to charge you with a crime to remove illegal property from you. This might be problematic in the case of guns, illegal substances, explosives, etc. I'm not sure about requiring a 16 year old to be charged with a crime for a police officer to take him beer away, so I understand this argument to some degree. It's a case of police discretion being warped into something it wasn't intended to be.

> And under no circumstances can the proceeds from a seizure be given to anybody in the decision-making chain.

This is common sense, but is wrapped up on the idea of using CF to help fund police departments because the public doesn't want to. Personally, I would like to see the money go towards treatment and counseling for people with problems with drugs, addiction, criminal records and mental illnesses, and community building and outreach programs.

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> Civil forfeiture is also how they confiscate contraband, or anything that is itself illegal to own.

If something is illegal to own, then there should be no difficulties charging the owner with a crime.

> I imagine without CF law enforcement would be forced to charge you with a crime to remove illegal property from you.

Exactly.

> I'm not sure about requiring a 16 year old to be charged with a crime for a police officer to take him beer away

Just like an officer can choose not to write up a ticket, they can tell a first-time offender "Throw away the beer right now and I'll let your parents deal with this; otherwise I'll have to charge you." That doesn't require civil forfeiture.

> If something is illegal to own, then there should be no difficulties charging the owner with a crime.

Do we want the law to be this inflexible? It sounds good initially, but I would rather the starving man have the bread he stole gently taken by the police and returned to the owner, and sent on his way (hopefully with some help), than to be arrested. Without civil forfeiture, this turn of events would require the police to either arrest the starving man, or break the law themselves to take the bread. CF is a way for the police to use their discretion to right situations, and to prevent additional harm to victims (such as preventing property from being destroyed, used or spent after the criminal is apprehended but before conviction).

What about the case of stolen property, and the misuse of hiding of it prior to conviction but after arrest? It does the victim little good if the property stolen is disposed of or hidden after arrest.

Don't get me wrong, I'm all for massive reform for the law in these cases, I just think there are cases where it's useful, and careful consideration should be given as to whether we need to keep some portion of it intact, or remove it altogether, and the consequences of that choice.

Edit: Okay, ignore the stolen bread and kid with beer examples. They aren't well thought out, and are distracting from the other examples and and points, which I think deserve attention. I'm only leaving it here because I'm loathe to remove something people are responding to, even if it reflects poorly on me. :/

> Without civil forfeiture, this turn of events would require the police to either arrest the starving man, or break the law themselves to take the bread.

Or tell him he'd be arrested if he didn't hand over the bread...

I would rather the laws be inflexible enough to prevent abuse then rely on the goodwill of the the police to not just use the law for personal gain, which they have proven willing to do repeatedly in the past.

I'm perfectly OK with a cop neither taking a starving person's bread nor arresting him. I don't think the bread maker wants it back.

>If something is illegal to own, then there should be no difficulties charging the owner with a crime.

Owning cash and fancy cars aren't illegal. These laws were suppose to make it easier to stop drug dealers where large amounts of cash were common place.

> I imagine without CF law enforcement would be forced to charge you with a crime to remove illegal property from you.

CF isn't generally used to take illegal goods, but to take otherwise legal goods. For example in a drink driving stop, they may charge the car with a drink driving offence.

That's not true. CF is how assets are seized prior to conviction, including stolen good to be given back to the rightful owner[1]. CF has a lot of problems, but let's not ignore that it can, and has been used to good effect in the past as well. I doubt doing so will lead us to a better outcome.

1: http://www.fed-soc.org/publications/detail/forfeiture-is-rea...

Surely stolen goods still belong to the original owner. Why would they need CF to give it back?

While easy to reason about morally and with common sense, the law is a bit more strict in that in defining when something is or is not a possession, and until proven otherwise by a court, if someone claims property is theirs, to remove it without consent is theft.

There may be plenty of cases where it's obvious who owns what, but it would be illegal to rectify prior to judgement if the perpetrator continues to claim ownership. For example, a bike with a serial number and documentation. If the thief claims the bike was thrown away, and you claim it was locked up and there were no witnesses, then without CF you might have to wait for a judgement before the bike is removed from the perpetrator and given back to you. With Cf, the police might make a judgement that you deserve the bike until judgement. Of course even this situation is open to abuse and mistakes...

> I imagine without CF law enforcement would be forced to charge you with a crime to remove illegal property from you. This might be problematic in the case of guns, illegal substances, explosives, etc.

I see no problem with guns, illegal substances, and explosives being a separately-delineated legal category, allowing them to be seized while not allowing cars, computers and other private property to be seized.

> I'm not sure about requiring a 16 year old to be charged with a crime for a police officer to take him beer away, so I understand this argument to some degree. It's a case of police discretion being warped into something it wasn't intended to be.

I don't think that would be handled through civil forfeiture law, either. They'd just pour it out.

> I see no problem with guns, illegal substances, and explosives being a separately-delineated legal category, allowing them to be seized while not allowing cars, computers and other private property to be seized.

That would be a refinement to CF, where it only applies to specific items, not the complete abolishment of it. There is the problematic case of money, and being able to return it to the rightful owner.

> I don't think that would be handled through civil forfeiture law, either. They'd just pour it out.

It's a poor example. I'll freely admit that. The point was to show that any time the police take something from you without a conviction and without CF, it would be real theft, under the law, not theft in all but name, which we have now. In some cases that's good, and in some I think it's not.

>>this is the heart of civil forfeiture, and without it there isn't any

Good, there should not be.

> It's a case of police discretion being warped into something it wasn't intended to be.

Actually it is not, this is exactly what was intended when they passed the laws, I do not know where you get the idea this was about "taking a beer from a 16 year old"

Without civil forfeiture, any time the police take something from you, it's theft. Without it, the courts would need to be the ones to deal with this issue, and while I think most of us agree that would yield a fairer judgement, it wouldn't necessarily be timely, and time can matter. For example, CF is used to return stolen good to the owner. It's also used to keep criminals from using the fruits of their crime prior to conviction. Should a bank robber be allowed to use the money from their heist to pay for their defense? Should the embezzler be allowed to transfer the money in question to locations where the government has no jurisdiction?

For reasons for civil forfeiture, this[1] might be an interesting read. You don't have to agree with everything in it (I don't), but I believe there are some good points.

Here's an excerpt: Forfeiture is also used to abate nuisances and to take the instrumentalities of crime out of circulation. For example, if drug dealers are using a "crack house" to sell drugs to children as they pass by on the way to school, the building is a danger to the health and safety of the neighborhood. Under the forfeiture laws, we can shut it down. If a boat or truck is being used to smuggle illegal aliens across the border, we can forfeit the vessel or vehicle to prevent its use time and again for the same purpose. The same is true for an airplane used to fly cocaine from Peru into Southern California, or a printing press used to mint phony $100 bills.

1: http://www.fed-soc.org/publications/detail/forfeiture-is-rea...

Ah yes, thanks for invoking "save the children" and the farcical War on Drugs.

Throw the baby out with the bathwater r.e. civil forfeiture.

Civil forfeiture victimizes far more people than it helps protect people and society at large from bad actors using ill-gotten gains.

In fact, I'd say that the bad actors using the ill-gotten gains are overwhelmingly LE itself.

> Ah yes, thanks for invoking "save the children" and the farcical War on Drugs.

That's from an excerpt from a document I referenced. I already noted I didn't agree with everything in it, but there were more examples that just that in the excerpt.

> Civil forfeiture victimizes far more people than it helps protect people and society at large from bad actors using ill-gotten gains.

That would be an interesting point in the argument if true. Can you substantiate that?

>That would be an interesting point in the argument if true. Can you substantiate that?

https://en.wikipedia.org/wiki/Civil_forfeiture_in_the_United...

in 1986 reported civil forfeiture assets were $93.7M

in 2010 that figure was $2.5B

"Over 12 years, agencies have taken $20 billion in cash, securities, other property from drug bosses and Wall Street tycoons as well as "ordinary Americans who have not committed crimes."[31] One estimate was that in 85% of civil forfeiture instances, the property owner was never charged with a crime"

emphasis mine.

> One estimate was that in 85% of civil forfeiture instances, the property owner was never charged with a crime"

That needs more explanation, as large shipments of contraband that are seized would likely fall under that category. How do you charge the owner of a shipping container, or an abandoned boat, or illegal items left at the scene of a crime, when the owner is not present, or is in a location you have no jurisdiction, or you don't know who the owner is? You don't, you use Civil Forfeiture and seize the illegal goods without a criminal case, because that's the mechanism the law provides.

• In 2008, for the first time in history, the U.S. Department of Justice’s Assets Forfeiture Fund (AFF) held more than $1 billion in net assets—that is, money forfeited from property owners and now available for federal law enforcement activities after deducting various expenses. A similar fund at the U.S. Treasury Department held more than $400 million in net assets in 2008. By contrast, in 1986, the year after the AFF was created, it took in just $93.7 million in deposits. "• State data reveal that state and local law enforcement also use forfeiture extensively: From 2001 to 2002, currency forfeitures alone in just nine states totaled more than $70 million. This measure excludes cars and other forfeited property, as well as forfeitures from many states that did not make data available for those years, and so likely represents just the tip of the forfeiture iceberg.

• Equitable sharing payments to states have nearly doubled from 2000 to 2008, from a little more than $200 million to $400 million.

Source: Williams, Marian R.; Holcomb, Jefferson H.; Kovandzic, Tomislav V; and Bullock, Scott, "Policing for Profit: The Abuse of Civil Asset Forfeiture," The Institute for Justice (Arlington, VA: March 2010), p. 7.

http://www.ij.org/images/pdf_folder/other_pubs/assetforfeitu...

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I'm not saying that there are not legitimate reasons to seize assets during criminal investigations, or in clear cases of contraband.

The problem is clearly that LE agencies are heavily incentivized to purse civil forfeiture as a means, in best case, to bolster budgets and support - in Generous Forfeiture states, public school budgets etc, and worst case, as slush funds. See Maricopa Country Sherriff's office. And Local PDs and Sheriff's depts nationwide.

The legality of these seizures needs a comprehensive overhaul. For every Madoff or HSBC or shipping container filled with coke or knockoff prada bags, there are a thousand people like the family in the OP.

> I'm not saying that there are not legitimate reasons to seize assets during criminal investigations, or in clear cases of contraband.

Then you aren't disagreeing with the spirit of anything I've said.

> The legality of these seizures needs a comprehensive overhaul.

I've said as much multiple times in this thread, which I started by saying exactly this. I'm merely suggesting a rational look at the pros and cons and not to jump to the conclusion that there's no benefits of the law as it currently stands. It's obvious it needs overhaul though.

Also, how can you explain the steady linear growth of forfeiture assets in the face of declining crime rates?

You've been talking out of the side of your mouth up and down this thread.

> Also, how can you explain the steady linear growth of forfeiture assets in the face of declining crime rates?

I can't. But I'm not saying it's not a problem, or that it hasn't been growing, just that I wasn't aware of the value of seizures that victimize people exceeding that of seizures that don't. I never refuted your claim, just pointed out a problem in the source of it that makes the specific number ambiguous for that claim. it's still entirely possible you are correct. It may even be likely.

> And I started by saying that in lieu of an overhaul, it would be better for society as a whole that civil forfeiture be outlawed entirely.

And you ended with "The legality of these seizures needs a comprehensive overhaul."

> You've been talking out of the side of your mouth up and down this thread.

I have tried to be very clear on my position, from the very first comment. CF are a major problem. They either need a major overhaul, or to be repealed. If repealed, we should look at any valid, useful uses and make sure to account for them. As such, careful consideration of CF is more useful than a simple stance of "CF is bad. Abolish it." Do you see any statements from me that do not follow this?

I've assumed you've been carrying on your side of the conversation in good faith. I would hope you could extend me the same courtesy.

I inferred some equivocation which led me to believe that you find the institution of CF acceptable, despite the abundance of abuse. That the good outweighs the bad, or that seizures themselves are generally acceptable, and not an outright insult to the zombie corpse of the long dead 4A.

I'll admit though that this is my issue, not yours (perceiving your intent negatively). This has been a good discussion, and I should abstain from inference and address you on content alone. For that, I apologize.

As far as how we should proceed institutionally with altering CF to be more in line with the spirit of the rule of law - I'm a cynic, and a pragmatist.

If we're extremely lucky, we'll get a federal redress of CF and how it can be applied.

Clamoring for it to be thrown out is an outright fantasy.

I don't think we'll get either.

And I started by saying that in lieu of an overhaul, it would be better for society as a whole that civil forfeiture be outlawed entirely.

It's an abomination.

>>That would be an interesting point in the argument if true. Can you substantiate that?

http://ij.org/report/policing-for-profit/

Similar to my reply to your sibling comment, this does not break down (from what I could see) whether the the goods were seized as illegal goods or whether there actually was someone to charge. Under critical examination, I don't think the number mean what most people assume them mean, especially in the following statement:

Among DOJ civil forfeitures, 88 percent took place “administratively.” Administrative forfeitures happen automatically when a property owner fails to challenge a seizure in court for any reason, including the inability to afford a lawyer or a missed deadline to file a claim. The seized property is simply presumed “guilty” without a neutral arbiter such as a judge determining whether it should be permanently taken from its owner.

All contraband seized at port without a clear attributable own or person to prosecute falls under this. All drugs and drug money illegally transferring to and from the country that were intercepted without someone present to charge (or that they decide isn't the owner) fall under this.

To be fair, there may not be a lot of information around now to classify these things correctly, but that doesn't mean it's okay to take the entire amount and apply it towards one type of situation when it obviously doesn't apply.

>>Without civil forfeiture, any time the police take something from you, it's theft

Anytime the police take something from you it is theft... Period

With Civil Forfeiture it might be legal theft, but it is still theft.

>> For example, CF is used to return stolen good to the owner.

Citation.. I know of no instances where this is the case.

>> It's also used to keep criminals from using the fruits of their crime prior to conviction.

That is part of the problem with CF, I do not see that as a Good thing. You are denying a person a right to a fair criminal hearing if you take all of their assets before conviction.

>>For example, if drug dealers

I believe all drugs should be legal.... using Drug Dealers as and example of why we need CF is a fail for me

> Anytime the police take something from you it is theft... Period

Is it? If you've stolen the goods form someone else, is it theft? Maybe it is theft, but we condone it because it rights the initial wrong.

> With Civil Forfeiture it might be legal theft, but it is still theft.

I've used almost those exact words elsewhere here at least once.

> Citation.. I know of no instances where this is the case.

The government also uses forfeiture to take the profit out of crime, and to return property to victims. No one has the right to retain the money gained from bribery, extortion, illegal gambling, or drug dealing. With the forfeiture laws, we can separate the criminal from his profits -- and any property traceable to it -- thus removing the incentive others may have to commit similar crimes tomorrow. And if the crime is one that has victims -- like carjacking or fraud -- we can use the forfeiture laws to recover the property and restore it to the owners far more effectively than the restitution statutes permit.[1] I've referenced it multiple times at this point.

> That is part of the problem with CF, I do not see that as a Good thing. You are denying a person a right to a fair criminal hearing if you take all of their assets before conviction.

That's one side of it, and it's definitely a problem in some instances. What about someone using the money they've stolen from you to defend themselves? What about people in organized crime using money from that enterprise to defend themselves?

> I believe all drugs should be legal.... using Drug Dealers as and example of why we need CF is a fail for me

Can you not come up with a single other group that you don't agree with? What about contract killers? Or embezzlers? Or con men? I expect if you disagree you should be able to come up with a general rebuttal to what is obviously meant as a general example.

Keep in mind my assertion here is not that civil forfeiture is good, but that there are some useful aspects, and before abolishing it outright, we owe it to ourselves to at least rationally examine the pros and cons, and see if we can mitigate the downsides or possible change the law instead of abolish it.

1: http://www.fed-soc.org/publications/detail/forfeiture-is-rea...

I am an absolutist in this regard.

no one is an embezzler, conman or contract killer until they have been proven to be beyond a reasonable doubt by a jury of their peers, Until then they are innocent and any taking of their property it immoral theft.

Further During Criminal Proceeding a judge can order property secured, i.e if a person is charged with embezzlement the judge can order prior to conviction a bank account be frozen, this is FAR FAR FAR FAR different than CF.

Any Freezing of Assets or property at a minimum should be directly and irrevocably linked to a criminal prosecution of some kind

I see no reason the government should be allowed to cease assets with out even charging a persons with crime

I also see no reason why when those assets are seized the burden is upon me to prove my innocence

CF is an abomination of "Justice" is has no place in any Justice System, any defense of it is promoting unethical practices. Period, End of Discussion

> Further During Criminal Proceeding a judge can order property secured, i.e if a person is charged with embezzlement the judge can order prior to conviction a bank account be frozen, this is FAR FAR FAR FAR different than CF.

Yes, and it also requires time.

> CF is an abomination of "Justice" is has no place in any Justice System, any defense of it is promoting unethical practices.

CF is used to seize intercepted illegal goods at the border, and items left at the scene of a crime where there is nobody around to charge. Is that promoting unethical practices? A grenade is left in a populated area, and the police are called and confiscate it. That's CF. Without it the police are stealing someone's property. Requiring the police to find and convict someone before seizing what is an dangerous or illegal item does not make sense. It needs to be accounted for in some manner, which is the heart of my argument. Revise CF, or abolish it and pass other laws as needed for the useful cases it supported. Abolishment without understanding or examination is irresponsible.

> Period, End of Discussion

Sure. If you know everything there is to know about a topic, and all possible current and future interpretations of it, then that makes sense. Since I don't believe that applies to any human being, I don't think that's a rational stance to take. Apparently you do.

>>>For example, CF is used to return stolen good to the owner. It's also used to keep criminals from using the fruits of their crime prior to conviction. Should a bank robber be allowed to use the money from their heist to pay for their defense? Should the embezzler be allowed to transfer the money in question to locations where the government has no jurisdiction?

Easy fix; hold/freeze the bank robber's funds (or the crack dealers house, or whatever other property) temporarily - if they're convicted, take it permanently. If they're not convicted (be that acquitted, charges dropped, charges never laid, whatever) they should get the property back. Anything else is ridiculous.

That's still civil forfeiture, just an alteration for the rules in which it is allowed and how it must be carried out. Which is fine, and actually supports my position, which is that a critical look needs to be taken before we decide to just abolish it completely.

Really, I just think acting like there will be no negative consequences of abolishing it, or that the negative consequences will be easily outweighed by the positives, without bothering to actually bothering to look at the pros and cons is an unsupportable position.

I understand your appeal to emotions here but wouldn't it be better to go through a court process to seize that property? There could be a process like getting a search warrant to temporarily seize property, but it shouldn't be that the police can literally just snatch anything they want without due process. That is ridiculous and exactly the kind of thing the founders of the USA were upset about.

> I'm not sure about requiring a 16 year old to be charged with a crime for a police officer to take him beer away

Officer: "Pour out that beer immediately or I will arrest you"

I'm not sure about requiring a 16 year old to be charged with a crime for a police officer to take him beer away, so I understand this argument to some degree.

Why confiscate the beer? Dump it out and return the bottles. The officer is just helping the kid to come into compliance with the law.

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