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Comment by senorprogrammer | Hacker News Reader

I'd argue the fundamental problem is that 'civil forfeiture' is 'guilty until proven innocent', an inversion of the way the rule of law is meant to work.

Requiring charges is a very small step in the right direction. I suspect what will happen is that people with money will now be charged for small, ridiculous offences, misdemeanours, as a way for law enforcement to skirt the law.

A real improvement is to seize, hold, require conviction, and then enforce forfeiture. If a conviction cannot be made, the forfeiture should be invalidated.

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> I'd argue the fundamental problem is that 'civil forfeiture' is 'guilty until proven innocent', an inversion of the way the rule of law is meant to work.

That's not an inversion of the way "the rule of law" is supposed to work, its an inversion of the way criminal punishment is supposed to work, because of the particular character of criminal sanction. But civil forfeiture isn't criminal punishment, and doesn't have the features for which that protection exists.

Further, civil forfeiture mostly isn't "guilty until proven innocent"; while the burden of proof is the typical civil burden of proof ("preponderance of the evidence" rather than the criminal "beyond a reasonable doubt"), the government bears the burden of proving that assets are subject to forfeiture in a contested forfeiture.

(The one aspect of civil forfeiture that has a bit of "guilty until proven innocent" is the "innocent owner" defense, on which the owner bears the burden of proof, where property that is subject to forfeiture -- e.g., because it has been proven to be proceeds of a crime -- is nevertheless immune to forfeiture because the owner either did not know of the conduct justifying the forfeiture or took steps to stop the use of the property giving rise to the forfeiture once they did know.)

> in a contested forfeiture

And to "contest" it requires an attorney at about $200/hour. I would say that counts as a "burden" to 99.99% of the population.

But civil forfeiture isn't criminal punishment, and doesn't have the features for which that protection exists.

It technically isn't, but the intent is to give the government options to punish criminal behavior and criminal organizations without having to meet the same standards of proof or respect the same set of rights they would under criminal law. Traditional civil law deals with breaches of contract and torts where someone has been harmed and needs to be made whole, not the government attempting to maintain order. Civil asset forfeiture is fundamentally "getting a conviction here would be too hard, let's take their stuff instead".

Most people talking about the burden of proof are misusing the term, but the protections guaranteed to a criminal defendant are reduced or absent in civil asset forfeiture. Using civil law in this manner should give us pause, as there are good reasons for the limitations and guarantees of criminal law.

> It technically isn't, but the intent is to give the government options to punish criminal behavior and criminal organizations without having to meet the same standards of proof or respect the same set of rights they would under criminal law.

The behavior at issue (which often is the same behavior covered by tort law) is not the reason for the additional protections of criminal law; the sanctions available under criminal law are the primary reason for the protections.

That's a great clarification. Thanks for that!

I'd argue that while it may technically not be "criminal punishment", that is ultimately the final outcome. People for whom a criminal conviction cannot be guaranteed are instead "punished" by having their goods taken. However IANAL, and that is simply my perception of the effect.

* I suspect what will happen is that people with money will now be charged for small, ridiculous offences, misdemeanours, as a way for law enforcement to skirt the law.*

That could happen, though I think some reformed laws require it to be a felony, while others require proof beyond a reasonable doubt that the property is tied to the crime.

I think the greater injustice is that it requires the person whose assets were seized to prove a negative.

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