Rules Change on I.R.S. Seizures, Too Late for Some
nytimes.com
nytimes.com
'Critics' say? Is there anybody who doesn't concur with this assessment? It seems like a flat, unambiguous fact.
This toxic style of perspective hijacking is a huge part of the problem. It's always, "[government interest] says sky is green; critics say blue. The facts remain elusive."
Many things that one person feels are flat and unambiguous are perceived otherwise by other people. To use an extreme example, some people think torture is unambiguously evil; some people think it depends on the circumstances; others think it's legitimate vengence on enemies.
There are very many law enforcement officials who use this tool, legislators who pass these laws, and a large segment of the public who trusts and supports law enforcement; they all might feel otherwise about these practices.
I think good reporting should challenge our perspectives by introducing us to others that are outside our usual worldview. Be suspicious of reporting that doesn't challenge your beliefs; they might be kissing your a--; you might be in an ideological bubble.
> Critics' say?
The idea must come from someplace, and it's important to say from where so that you can judge its credibility. Either the reporter hears someone else say it or invents it him/herself; the latter is the job of op-ed writers.
I do agree this idea can be taken too far ('experts say that the Sun appears first in the East every morning') but I'm not sure it's a problem in this case.
And I'm not saying either that I disagree with the policy or that I view it as likely to fail in an empirical sense (although both are true).
Instead, I'm pointing out that the fact that allowing law enforcement to keep the proceeds does indeed create an incentive for LEOs to do the wrong thing.
I think everybody agrees on that point. LEOs can point to a number of counter-incentives, as well as their own good intentions, as measures that can ameliorate this bad incentive, but I don't think anybody will disagree that it exists.
What's the "wrong" thing? You and I agree, by the way, but unfortunately I'm pretty certain that many people -- more than I am comfortable with -- do not.
http://www.theguardian.com/us-news/2014/dec/09/senate-commit...
"The report finds that CIA detainees subjected to what were then called “enhanced interrogation techniques” either produced no intelligence, or they “fabricated information, resulting in faulty intelligence”. It says that the CIA’s own interrogators “assessed that the most effective method for acquiring intelligence from detainees, including from detainees the CIA considered to be the most ‘high-value’, was to confront the detainees with information already acquired by the intelligence community”."
You can attempt to ignore this fact and argue whether we should or shouldn't torture people, but at that point you are arguing whether we should or should not submit people to gruesome deaths because we think they may have done something wrong (with little to no evidence.)
A perverse incentive is an incentive that has an unintended and undesirable result which is contrary to the interests of the incentive makers.[1]
It's common to believe that law enforcement makes mostly just decisions, even when deciding whom to accuse[2]. To voters with this view, the incentives are exactly aligned with their interests.
[1] http://en.wikipedia.org/wiki/Perverse_incentive
[2] http://en.wikipedia.org/wiki/Right-wing_authoritarianism
However, for the purpose of understanding the 'interests' of the incentive makers, it's notable that we're talking about executive action, pursuant (however shakily) to law passed by congress, pertaining to the specific act of seizure ("forfeiture") of property.
The 'interest' (or, more charitably, the 'intention') is to combat crime.
Thus, if law enforcement has an incentive to do something other than combat crime, which again, I don't think anyone disagrees they do under such a framework, then the incentive is indeed perverse.
The only way that this incentive is consonant is if the original intention was to enrich law enforcement agencies, which nobody claims was the impetus for these policies.
https://firstlook.org/theintercept/2015/04/16/welcome-unoffi...
Why not? Its economics 101 [1]. Incentives matter, and the existing rules create "perverse incentives."
Or are we talking about offending law enforcement and government agencies? Because fact and ego are two different things.
[1] http://en.wikiversity.org/wiki/10_Principles_of_Economics
Regardless of how well they work, and the success or failure of the policy generally, this particular configuration (law enforcement receiving the proceeds) is indeed an incentive for them to do the wrong thing (ie, "perverse"). I really don't think anybody disputes that.
The fact that downside X can be overcome does not mean X does not exist.
Are the perverse incentives actually problematic in practice? Okay, that claim can be the sole province of "critics", but not the one about whether they exist.
The above article doesn't leave out the fact that this seizure was initiated two months after the policy change. Looks like the policy has only changed on paper.
It also doesn't fail to mention that the justification for the gag order was to prevent tipping off the suspect, but it has already been established that McLellan committed no crime, so its explicitly being used to keep this from the public's attention.
It's unfortunate that NYT is so bad at reporting the relevant facts.
And yet, under Democratic and Republican presidents; under Democratic and Republican House control; and under Democratic and Republican Senate control, the policy persists. Why is that? How much power do these agencies have over the elected officials?
My jaw dropped when I read this.
Dear Mr. West: your job isn't about your feelings. And it certainly isn't about your need to be right or your refusal to admit a mistake. You need to grow up -- and I also think you need a new job.
How do I, as a citizen, convince my representative(s) to pursue Mr. West (and the case in question) for investigation?
'Your client needs to resolve this or litigate it,' Mr. West wrote. 'But publicity about it doesn’t help. It just ratchets up feelings in the agency.'"
That's pretty breathtaking. He's admitting that complaining to one's elected representatives in government about what is admitted to be an abuse of government power will result in those agents retaliating against you. So shut up and pay us, peasant.
How do these people sleep at night?
http://www.nytimes.com/2014/11/10/us/police-use-department-w...
http://www.forbes.com/sites/georgeleef/2014/11/25/loretta-ly...
In the President's defense, the USA has a long and sordid history of bad Attorney's General. I'm sure that Lynch is nowhere near the bottom of that list.
Ugh. This language sounds similar to the language thieves use in hitting homes.
But civil forfeiture is definitely constitutional as long as you get due process. The NYTimes is wrong in stating you have the burden of proof in these cases, the government does. It's just not as high as a criminal case. The civil burden is the same that govern all sorts of property issues.
Until these agencies have their budgets severely slashed (like someone would get a fine for breaking the law), there's no hope that these bureaucratic thugs will change their ways.
yep
During that time, many behaviors became routine (with or without actual laws backing the behavior up) that have extremely questionable legal standing, and typically zero moral standing.
As for the constitutionality of asset forfeiture, you'll have to take that up with SCotUS, who've (unfortunately) rather consistently disagreed with you.
If you're thinking that this sounds an awful lot like "guilty until proven innocent" then you can find loads of really fun reading over with our libertarian friends at http://reason.com/tags/asset-forfeiture where they've been raising alarms about the trend since 1989 (long before its abuse in places like Ferguson, MO made talking about it cool)
Postscript: Oh, I think I was spot on about the name; thanks Google. https://www.docketalarm.com/cases/North_Carolina_Eastern_Dis...
Not only are corporations people, money is people, my friend. This means that money has free speech, which probably has recursive implications for campaign fundraising.
Seriously - has the idea of an object without will being named a defendant ever been challenged in the courts? Don't tell me that the person who owned the money has no standing - they certainly had property taken from them.
Funnily enough, the idea of suing the property is actually a well-established legal concept, at least generally [1]. It falls under the "in rem" jurisdiction of the court, which is its power over things, as opposed to power over people (which would be the more familiar "in personam", where a person is named in a suit or complaint).
Where in rem jurisdiction gets problematic is its use in civil forfeitures, for the reasons you say: The presumptive owner of the seized property is in fact readily available (i.e. the person it was seized from), and so any complaint should rightly proceed against them in personam, not against the property in rem.
Also note that the money isn't being named as a "defendant" as such -- a defendant is a party you'd find in a criminal case, and this is a civil forfeiture. In a civil forfeiture, since the complaint is indeed against the property, the owner of the property is a third-party to the case.
At this point the government pretends that the true owner of the property is unknown, so to fight the seizure it's first necessary for you to (a) legally assert ownership, and (b) legally deny the allegations in the seizure complaint. And only THEN can you proceed to the long and costly litigation against the government in which you must actually prove these assertions/denials. If things go well, some months or years later you'll get your stuff back. If you're really lucky, the legal costs won't have exceeded the value involved in the first place.
Meanwhile, in many civil cash seizures, the money has gone straight into the slush fund of the local police department that confiscated it... and the whole thing starts to look like one big end-run around due process and constitutional protection.
BTW, the government/courts also perform criminal forfeitures, which might be what you're thinking of where a confiscation involves a named defendant. For example, a punitive forfeiture doled out to a guilty defendant in a criminal trial.
[1] The legendary case of United States v. Article Consisting of 50,000 Cardboard Boxes More or Less, Each Containing One Pair of Clacker Balls provides an amusing example of the way these suits are styled.
The dictionary definition of 'democratic' includes: "available to the broad masses of the people". Between the cost and the knowledge needed, asserting your rights in forfeiture cases is not practically available to the broad masses, i.e. the socialeconomic class that is targeted. This is not democratic.
So if it's starting to look like a constitutional violation, when are we going to see a lawsuit? ALCU should be on this, right? Or while police departments are on the defensive, do we get the political will to roll back the seizure laws that led to this?
http://www.ij.org/long-island-forfeiture
Our new attorney general (Loretta Lynch) seized the money and just sat on it. Since there was no court case, it was a lot tougher to challenge.
Making a daily bank deposit is not "structuring" it's a common (and a best) practice. So if he was accumulating cash for a week or more and making large deposits, he was being stupid. Not that it justifies forfeiture, if that's all it was. But something isn't making sense here.
So maybe the government should prove it. Like beyond a reasonable doubt or something.
That is not something the government should ever be allowed to do, at all, under any circumstance.
The state should have to prove that the assets are the proceeds of criminality in order to seize them, rather than their owner having to prove otherwise once they've been seized.