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Comment by brianwawok | Hacker News Reader

If you are found with a big pile of drugs and 100k in cash.. it is not unreasonable to take the cash away. Otherwise you would be allowed to profit from an illegal activity.

Giving that money to the guy doing the arresting or the court doing the trial is the problem....

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I'll upvote because you're not entirely wrong. It's entirely reasonable to require that the proceeds of criminal activity be taken from the criminals. Whether it's a stolen car, drugs, or money made from selling a stolen car and drugs. It's all (mostly) similar.

The devil is in the details, though. The rampant "theft by cop" is where you have money, and they take it. No charges, much less conviction.

It's "guilty until proven innocent", which violates one of the fundamental principles of our justice system. It's outright corruption.

> Whether it's a stolen car, drugs, or money made from selling a stolen car and drugs. It's all (mostly) similar.

It's not that similar IMO. Stolen cars have owners to whom you can return the property, or litigants who can sue you to replace it. But selling contraband, unlike theft, doesn't have a victim that can be compensated by returning the proceeds. The government steps in and declares themselves the victims of this crime and claims the proceeds.

So far so good.

The problem is they do it before convicting you of anything.

Yes, this is obviously a problem. I think holding it during a trial could be reasonable, but the burden of guilt should not be "guilty until proven innocent"

Actually, worse: they seize your assets so that you cannot afford to mount a solid defense at your trial. It's a lot easier to convince someone to take a plea (i.e. confess falsely under duress) if they are bankrupt and destitute and can't afford proper counsel.

> But selling contraband, unlike theft, doesn't have a victim that can be compensated by returning the proceeds.

The point is largely that people shouldn't legally profit from illegal activities. Whether the profit is cash or tangible goods, the principle is the same.

That's like being found with a bloody knife and they arrest you and you say you're "guilty until proven innocent". In reality the standard is preponderance of evidence and you are ignoring the fact that courts have ruled that being found with large volumes of cash is itself suspicious.

It is unreasonable. It is legal to own cash. It shouldn't matter how it was obtained. Cash should only be confiscated in the process of executing a criminal or civil sentence against a person after a guilty ruling.

So if you rob a bunch of banks, but launder the money somehow.. it should be untouchable? Serial numbers don't match up with the robbed ones, and they weren't caught while robbing.. so good to go?

That's a fair question. So long as the owner is still the defendant and the owner is charged with an actual crime, I don't have a problem with assets being 'imprisoned' similarly to people to prevent them disappearing during a trial in case they need to change hands in a judgment/sentence. However, they should not become the property of the state, which is what happens in civil forfeiture confiscations by default. An public or private escrow service seems like the most appropriate solution in your scenario.

The difficulty of proving something beyond a reasonable doubt does not justify the lowering of the standard.

It is up to the government to prove guilt. Someone shouldn't have to protect their assets from forfeiture by proving its innocence.

If you allegedly rob a bunch of banks, and allegedly launder the money somehow in some vague unclear way according to a claim made by police, then yes absolutely good to go.

That's the cornerstone of a free society.

If they can prove you robbed the banks or laundered the money, then they get to lock you up.

But yes, in a thought experiment where someone commits the perfect unprovable crime that can't ever be solved then yes they get to go free.

Yes, but the 14th amendment says "nor shall any state deprive any person of life, liberty, or property, without due process of law." You'd think that this would mean that if the government wants to take your property, they have to afford you due process. Instead, they dredge up an obscure concept called in rem jurisdiction from admiralty law. This was originally used in situations where a foreign ship came into port with contraband, and the owner was difficult to determine or couldn't be reached, so they came up with the idea of suing the property instead of the person. Then it was used in non-maritime cases where the owner of the property was unknown or dead. Then they managed to argue that since property isn't a person, it has no constitutional rights -- you're not depriving a person of his property without due process, you're just depriving the property of its liberty. It's unbelievable to me that such an obviously bullshit argument can get past the supreme court.

Has any case regarding civil asset forfeiture actually made its way up to the Supreme Court yet? I'm not sure of any or if the court has actually ruled on the constitutionality of this ever.

Interesting history about rem jurisdiction.

It's not just criminals though, the police can stop anyone with reasonable 'suspicion' and they do. It's legalised highway robbery. Canada issued a travel advisory to their citizens over it, and the police in New York don't even keep records of what they steal.

They do keep records. The article that you were referring to was about how the NY police claimed that the system that they store those records in couldn't handle something like calculating the total amount of cash seized across all records.

Basically, it couldn't handle the equivalent of SELECT SUM(cash) FROM loot but it could handle SELECT * FROM loot WHERE victim = "John Smith"

Contraband should be seized. Legal property that is connected with a crime should be seized as well.

But, the burden should be on the state to establish that the property is the proceeds of a crime.

To play devil's advocate for a moment, if I'm a criminal in the drug business, and I've got a bunch of money on me when you stop me, by the time you meet the burden of proof, I won't have the money any more. If you're going to seize it at all, you have to seize it when you've got the chance.

The best we might realistically ask for is that I get it back once the police can't meet the burden of proof...

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

https://www.law.cornell.edu/constitution/fourth_amendment

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

A particularly hilarious and brilliant take on Civil Forfeiture by John Oliver: https://www.youtube.com/watch?v=3kEpZWGgJks

When you say "found with a big pile of drugs...it is not unreasonable to take the cash away" I'm going assume you meant "were found guilty in a court of law, the money was determined to be a result of illegal activity and was put into a fund managed with transparency and oversight by elected - not appointed - officials".

The problem is the burden of proof, which is the one massive feature distinguishing the topic of civil forfeiture from the rest of the criminal justice system in which it conceptually resides.

In theory, that sounds correct. But the police shouldnt be able to steal stuff and get funding from it. That's is an adverse incentive for them to follow the rules. It's very clear this is a simple thing that they do to raise money, from the many many stories about small police departments pulling over poor people fishing for cash.

Provided you are convicted first. Otherwise you could screw people up by dumping random drugs in their yard and then calling the police.

One way it is used to day is to take the money before the trail so you cannot afford to defend yourself. Pretty effective, if you just want convictions.

This isn't even the normal situation, however. Modest houses, modest cars, and so on can get taken for relatively little amounts of drugs. Have some cash on you to buy a vehicle, and happen to have some pot in your car? Oops, goodbye car.

What you are talking about is unreasonable when you are talking smaller amounts and things.

Or more scarily, have you ever had a passenger in your car and you're not 100% sure if they had drugs on their person? Have you ever had police search your car with a drug dog or consented to a search with a drug dog? Both of those combined has been used to seize cars from innocent people because unbeknownst to them their passenger had a small amount of weed on them.

That is scary - I've been close to that situation, minus the official search. And it is fairly easy to be in that situation. Dating, car-pooling at the job, or simply giving a little-known aquaintance or a friend's family member home can land you in that situation.

My personal experience with that was in the late 90's. I took some folks home. It happened they lived in public housing in a town of around 50k. Suddenly, there were lots of cop cars and dogs about. I was getting asked about drugs and if any passengers had drugs, while being told that they know there was crack in the area and, "they found out that white folks are doing it too". (The others in my care were african-american).

At that point, I realized I didn't know these folks all that well. Youth + giving folks a ride home from a mutual location. I wasn't as worried about my car at that point because I knew nothing of civil forfeiture, but I was intensely worried about them dropping the drugs in the car and denying ownership. It would have been a nearly instant drug conviction for me, from what I understood at the time.

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