Civil asset forfeiture: Government piracy
A good friend sends along this George Will column:
Russ Caswell, 68, is bewildered: “What country are we in?” He and his wife Pat are ensnared in a Kafkaesque nightmare unfolding in Orwellian language.
This town’s police department is conniving with the federal government to circumvent Massachusetts law – which is less permissive than federal law – in order to seize his livelihood and retirement asset. In the lawsuit titled United States of America v. 434 Main Street, Tewksbury, Massachusetts the government is suing an inanimate object, the motel Caswell’s father built in 1955. The U.S. Department of Justice intends to seize it, sell it for perhaps $1.5 million and give up to 80 percent of that to the Tewksbury Police Department, whose budget is just $5.5 million.
The Caswells have not been charged with, let alone convicted of, a crime. They are being persecuted by two governments eager to profit from what is antiseptically called the “equitable sharing” of the fruits of civil forfeiture, a process of government enrichment that often is indistinguishable from robbery.
Since 1994, about 30 motel customers have been arrested on drug dealing charges. Even if those police figures are accurate – the police have a substantial monetary incentive to exaggerate – these 30 episodes involved less than five one-hundredths of 1 percent of the 125,000 rooms Caswell has rented over those more than 6,700 days.
So we now have the local government and the federal government complicit in using this abysmal rights-violating drug law to take the property of the Caswells without giving them legal recourse to fight the charges.
By charging the property with a crime.
The government says the rooms were used to “facilitate” a crime. It does not say the Caswells knew or even that they were supposed to know what was going on in all their rooms all the time. Civil forfeiture law treats citizens worse than criminals, requiring them to prove their innocence – to prove they did everything possible to prevent those rare crimes from occurring in a few of those rooms. What counts as possible remains vague. The Caswells voluntarily installed security cameras, they photocopy customers’ identifications and record their license plates, and turn the information over to the police, who have never asked the Caswells to do more.
The Caswells are represented by the Institute for Justice, a libertarian public-interest law firm. IJ explains that civil forfeiture is a proceeding in which property is said to have acted wrongly. This was useful long ago against pirates, who might be out of reach but whose ill-gotten gains could be seized. The Caswells, however, are not pirates.
No the pirates are among those in government and law enforcement who are attempting this travesty.
Constitutional? You tell me:
They are violating the Eighth Amendment, which has been construed to forbid “excessive fines” that deprive individuals of their livelihoods. And the federal “equitable sharing” program violates the 10th Amendment by vitiating state law, thereby enabling Congress to compel the states to adopt Congress’ policies where states possess a reserved power and primary authority – in the definition and enforcement of the criminal law.
“Equitable sharing” – the consensual splitting of ill-gotten loot by the looters – reeks of the moral hazard that exists in situations in which incentives are for perverse behavior. To see where this leads, read IJ’s scalding report “Policing for Profit: The Abuse of Civil Asset Forfeiture” (http://ow.ly/aYME1), a sickening litany of law enforcement agencies padding their budgets and financing boondoggles by, for example, smelling, or imagining to smell, or pretending to smell, marijuana in cars they covet.
This happens more often than you might think, has been going on for decades, is immoral, unconstitutional and just flat wrong. I really don’t care what you think about the drug war. Civil asset forfeiture as it is done today is unacceptable regardless – or should be. I really don’t give a rip about whether or not it is “legal”. Many a dictator has made murder legal but it didn’t change the morality of the act, did it?
This must stop.