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gwd

Looking briefly through the "habeas corpus" stuff, it looks like the way it technically works is this:

- Police arrest you

- You can request a Writ of Habeas Corpus

- The judge then issues the Writ

- The police either have to accuse you of a crime or let you go.

You could do the same thing wrt the stolen goods:

- Police sieze contraband

- Owner requests Writ of Habeas Stuffus

- etc

In the case of an owner in another country and is pretty sure they'll get arrested if they show up to claim their stuff, then they'll choose to leave the stuff where it is rather than apply for a writ. After a year, the police could consider it forfeit by default.

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In rem jurisdiction over property is the exact basis of civil forfeiture - this isn't a solution, it's the problem.

Unfortunately I can't understand what you're saying (perhaps beacuse I'm missing the appropriate background). Can you please explain what you mean?

Where courts make a "thing" rather than a "person" the subject of a case, this is called "in rem" (which is Latin for "against a thing").

The legal theory which underlies civil forfeiture is "in rem jurisdiction" where it's not the owner, but rather the property, which is the defendant in the case. If the case is at a Federal level, then it will be something like "United States of America vs. $50,000 in United States currency".

The standard of proof is not at the criminal standard ("beyond a reasonable doubt") but instead the civil standard ("preponderance of evidence").

Right, so the sibling reply was correct. The person I was replying to said that the "problem" they were trying to solve when they invented the practice in the 1800's was things like seizing smuggled goods off a ship, where the owner is overseas and you don't have an extradition treaty with them.

So, seize the goods in anticipation of convicting the owner. Make a law that says the owner can apply for a writ, and a case must be made. If the owner doesn't show up, then the goods are abandoned property. That allows the case described to be prosecuted, while not opening up the insane abuses we've all heard so much about.

I think gwd's point is, the "thing" wouldn't be the subject of a case. It would be siezed as evidence of a crime, with the subject of the case being the John Doe owner. If the owner is identified/comes forward, they must be charged with the crime. If not convicted, their property is returned. If no owner is found after some period (say, a year or more), the "thing" is considered abandoned property. Basically, eliminating "in rem".

The thing about civil forfeiture is it's not about contraband; the property is usually perfectly legal in itself, however, there is an alleged criminal nexus.

The situations it's intended to address are things like this:

Bob meets regularly with known members of Mexican drug cartels, but doesn't actually seem to be involved with the illegal sale of drugs. Bob files his taxes every year and makes a modest income. However, every day, Bob drives over the border at El Paso in his car with a million dollars of cash in a briefcase.

If the DEA stops Bob, he asserts that the cash is his. Since it's not obvious that Bob has actually committed a crime, shouldn't there be some mechanism to allow the obvious profits of crime to be confiscated without having to convict Bob?

A lot of reasonable people think the answer to that is "yes"; but it is apparently hard to create a mechanism that doesn't also result in the police confiscating your car because your friend that's riding with you has $500 of cash, a bunch of empty baggies in his pocket, and prior drug dealing conviction.

No, there shouldn't be, because if you haven't convicted Bob of a crime it's not "obvious profits of crime". It could be perfectly legitimate and you haven't proved otherwise. You can certainly seize the cash as possible evidence of a crime, but if you don't charge Bob then you've got no justification to penalize him by keeping the cash, and it should go back to him.

You're missing the point here.

I was attempting to describe a situation where, if the law permitted it, you could bring in a jury and let a prosecutor make the case that Bob's briefcase constitutes the proceeds of crime, and have a solid chance of success at the "beyond a reasonable doubt" standard of proof which is required for a conviction.

But you can't prosecute a briefcase full of cash; and Bob's actions are not in themselves criminal. Without some kind of asset forfeiture system, nothing can be done.

There's a pretty reasonable public policy argument that this is not an acceptable situation.

I don't think I'm missing anything. You want to be able to claim the briefcase as proceeds of a crime, without actually prosecuting a crime. That is unreasonable. If, as you say, "Bob's actions are not in themselves criminal", you've got no justification to take his stuff. You may think it's proceeds of a crime, and you can treat it as evidence of a possible crime. But if you haven't got enough evidence to convict Bob, then you also don't have enough evidence to keep his stuff. Pretending otherwise is a mockery of justice.

> you could bring in a jury and let a prosecutor make the case that Bob's briefcase constitutes the proceeds of crime ... But ... Bob's actions are not in themselves criminal.

So you're saying:

* You have evidence enough to prove beyond a reasonable doubt that Alice, the owner of the cash, has committed a crime, and that this cash is the result of that crime

* Bob himself hasn't done any crimes at all.

We can't prosecute Alice because she's in Mexico; and we can't prosecute Bob, because he hasn't done anything wrong.

Well then, seize the cash, and let Alice come for it. If Bob claims it's his and applies for a writ, show the evidence to the judge that Bob isn't actually the owner. If Alice applies for the writ, present your case against her. If she doesn't come for it after a year, treat it as abandoned property. Everybody gets due process.

If you don't have enough evidence to prove that Bob isn't the owner, you don't have enough evidence to convict Alice of a crime, and therefore it's a violation of human rights to take her money.

What you're describing is functionally exactly the same as civil forfeiture that everyone is complaining about!

Civil forfeiture works fine for this case, which is the whole point, because indeed neither will Bob be able to demonstrate it's really his, nor will Alice be arriving to collect.

Where it all goes wrong in other cases is "Bob claim it's his and applies for a writ". i.e. it becomes Bob's responsibility to prove his ownership in court, rather than the government's job to prove anything at all.

i.e. the government performs an administrative seizure without any proof obligation, and then reverses the burden of proof onto the person from whom the assets were seized

In the real world, for small-time asset forfeiture, the amount involved is too small to be worth the effort; or Bob often doesn't have the money for a lawyer to bring that action; or this all happens while he's traveling away from home, so the court appearances are going to involve air fare, time off work etc. Or Bob is presented with the problem of proving something that is difficult to evidence, like "I have been saving this shoebox full of cash in the closet for a long time for my daughter's quinceañera"[1].

Ultimately, yes, due process is available but it's not free, it's not low-friction, and it's many a time not worth it.

[1] https://thehill.com/opinion/criminal-justice/578798-the-high...

> Where it all goes wrong in other cases is "Bob claim it's his and applies for a writ". i.e. it becomes Bob's responsibility to prove his ownership in court, rather than the government's job to prove anything at all.

I said at least twice that it's the government's job to prove that it's Alice's and not Bob's.

You proposed a hypothetical scenario where there is plenty of evidence to prove beyond a reasonable doubt that this cash was the result of a crime by Alice. So, when Bob comes and claims the cash is his, present that evidence. It's not a matter of Bob proving that it's his; it's a matter of Bob proving that this "beyond reasonable doubt" evidence you have of Alice's crime is bogus.

We're getting really into the weeds here; I'd expect a lot of the precedents to be established by a series of cases. But I would think that a reasonable starting point would be that possession implies ownership by default; and that if the government wants to prove that the money that was in Bob's possession is not Bob's, then the burden of proof is on the government to prove that. In your hypothetical scenario, there is plenty of evidence that the money is not in fact Bob's, so it's not an issue.

If it turns out the evidence that the money is really Alice's drug money is actually pretty thin, that's a reason Bob should get the money back.

I think you are conflating "forfeiture" and "seizure".

> If the DEA stops Bob, he asserts that the cash is his. Since it's not obvious that Bob has actually committed a crime, shouldn't there be some mechanism to allow the obvious profits of crime to be confiscated without having to convict Bob?

Obvious to who?

If it's so obvious then charge Bob. If it's not then no confiscation.

Why do we want some weird half conviction? And if do you want that then do a plea deal.

> Since it's not obvious that Bob has actually committed a crime, shouldn't there be some mechanism to allow the obvious profits of crime to be confiscated without having to convict Bob? A lot of reasonable people think the answer to that is "yes";

No, those people are absolutely not reasonable! Those people want a magic world where we have crystal balls that tell us exactly who's innocent and guilty. That would certainly be nice, but that's not the world we live in.

It's frustrating when the guilty go free because of the rules we have in place to protect the innocent; but those rules didn't come out of nowhere. They are the result of the hard-won experience of thousands of innocent people being punished. If you remove them then innocent people will be punished again.

> Since it's not obvious that Bob has actually committed a crime, shouldn't there be some mechanism to allow the obvious profits of crime to be confiscated without having to convict Bob?

Absolutely-fucking-not.

Law enforcement should never be able to seize property without the charging of a crime when they know who owns the property.

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