Should Civil Forfeiture Exist?

[Chomsky]

you ignore the obvious ramifications. If people who have made money illicitly can give that money to confederates for safekeeping, and since the confederates themselves are not part of the actual narcotics trafficking, that means the money cannot be touched by the government

But then doesn't the law provide for charging the confederates with criminal conspiracy, still allowing the government to take a criminal tact, vs a summary one?

The concerns here are with confiscation of personal property without criminal conviction.

 

[Cardinal]

not denying that-I am asking if it has a proper use

What it is, is an intended solution for a real problem. Hanoi's rat problem was also quite real, and the solution ended up creating a problem that was worse than the one it was intended to solve.

 

[TurtleDude]

But then doesn't the law provide for charging the confederates with criminal conspiracy, still allowing the government to take a criminal tact, vs a summary one?

The concerns here are with confiscation of personal property without criminal conviction.

yeah but until a jury finds that the cash was not the property of the claimant, there is nothing to charge them with and the standards of proof for a criminal conviction is much higher

 

[TurtleDude]

What it is, is an intended solution for a real problem. Hanoi's rat problem was also quite real, and the solution ended up creating a problem that was worse than the one it was intended to solve.

that's not relevant to this matter. the issue becomes this-should illicit income be retained by the owners or should the government take it

 

[Chomsky]

Yes because you went after it in a court and I presume you used the court to seize it until disposition is made. A jury made that decision. The government did not. That particular case is a dispute on ownership of property.

I like forfeiture as a penalty, after they have been tried and convicted by a jury of their peers. As for seizing assets in total and preventing them from being used to defend oneself in trial before one is convicted. Absolutely not. I believe there must be a conviction that must proceed any forfeiture of funds. The government must PROVE its case. If they have one then they will be able overcome the defense attorneys and convince a jury their case is legitimate and correct, with the benefit of being challenged most likely by competent counsel and subjecting the case in question to the crucible.

These are all excellent points. The reason Turtle went to court was due to it being a property dispute.

I would like the government to have to go one further:

I would want the mother to first be found guilty of conspiracy or some similar money laundering crime, before her (claimed) money was confiscated. This would allow us to remain consistent with requiring criminal convictions before confiscation. (in my preferred world)

 

[jamesrage]

how do you convict someone with a clean record who claims money is his when it was actually given to him for safekeeping by a drug dealer?

The government tries proves it in a criminal court that the money actually belongs to the drug dealer and not the person who claims it's his. If they can't prove it then they have no business keeping it.

 

[PirateMk1]

how do you convict someone with a clean record who claims money is his when it was actually given to him for safekeeping by a drug dealer?

Not my problem. That said you have plenty of tools and unlimited money, I am sure you can find a way to get your man or money in this case that is legitimately constitutional. To answer the question directly, off the top of my head, how about an IRS audit, or an audit by the state or city taxing authorities. That should get the ball rolling. Or just keep a watch on the guy with the money you want so bad.

 

[TurtleDude]

The government tries proves it in a criminal court that the money actually belongs to the drug dealer and not the person who claims it's his. If they can't prove it then they have no business keeping it.

so if the dealer denies it is his, and the government proves that the claimant is lying-do you still have a problem with that?

 

[TurtleDude]

Not my problem. That said you have plenty of tools and unlimited money, I am sure you can find a way to get your man or money in this case that is legitimately constitutional. To answer the question directly, off the top of my head, how about an IRS audit, or an audit by the state or city taxing authorities. That should get the ball rolling. Or just keep a watch on the guy with the money you want so bad.

should civil cases of say wrongful death, medical malpractice-other torts or breach of contract require beyond a reasonable doubt burden of proof?

 

[PirateMk1]

These are all excellent points. The reason Turtle went to court was due to it being a property dispute.

I would like the government to have to go one further:

I would want the mother to first be found guilty of conspiracy or some similar money laundering crime, before her (claimed) money was confiscated. This would allow us to remain consistent with requiring criminal convictions before confiscation. (in my preferred world)

I would agree with that in light of the rampant abuse of the current forfeiture laws. Note I would not agree if there was very limited or no abuse of those laws. In light of reality, I must agree with you.

 

[AlbqOwl]

A few days ago jamesrage posted this thread about how Mississippi wants to make it easier for police officers to take cash and vehicles through civil forfeiture.

Do you think civil forfeiture should exist? Is it a violation of constitutional rights? If you support it, why?

I see it only as legalized theft by police, there is no reason why police should be able to take property without having to prove it first or charge someone of a crime.

A person's property should be sacrosanct and treated as an unalienable right as his/her right to life, liberty, and pursuit of happiness. The government is not allowed to take away a person's right to life, liberty, or pursuit of happiness without due process of law that includes a fair and honest trial and judgment by a jury of the person's peers. Neither should the government be able to confiscate a person's property without due process of law that includes all the safeguards.

I can see holding certain property for evidence, however, when it is involved in the commission of a crime. But if the case is thrown out or the person is acquited, the property should be immediately returned to the person.

 

[PirateMk1]

should civil cases of say wrongful death, medical malpractice-other torts or breach of contract require beyond a reasonable doubt burden of proof?

I believe ALL cases brought into court should be that standard, beyond reasonable doubt. The courts should be the LAST resort and one should have a very good case before proceeding. Most things that are in court both civilly and criminally should not be there.

 

[Chomsky]

yeah but until a jury finds that the cash was not the property of the claimant, there is nothing to charge them with

Well, I assume that would be the result of a successful criminal complaint against (in this case) the mother. Right? If she's involved in actively harboring her son's drug proceeds, it seems to me she criminally conspired and would be liable to charges. No?

and the standards of proof for a criminal conviction is much higher

That's exactly the point, my friend!

 

[TurtleDude]

I believe ALL cases brought into court should be that standard, beyond reasonable doubt. The courts should be the LAST resort and one should have a very good case before proceeding. Most things that are in court both civilly and criminally should not be there.

that's a cop out.

 

[TurtleDude]

Well, I assume that would be the result of a successful criminal complaint against (in this case) the mother. Right? If she's involved in actively harboring her son's drug proceeds, it seems to me she criminally conspired and would be liable to charges. No?

That's exactly the point, my friend!

the issue is this

we award millions to tort victims based on a mere preponderance of the evidence

we award millions to parties in breach of contract cases based on a mere preponderance of the evidence

why should civil forfeiture be different?

now I do not support the war on drugs. but it exists and right now-illegal narcotics proceeds are not something a person legally has a right to own

 

[Cardinal]

that's not relevant to this matter. the issue becomes this-should illicit income be retained by the owners or should the government take it

That asset forfeiture has been used to steal from people is exactly the matter. Let's put this in terms you're better able to digest. There are bad people with guns. Bad people with guns is a real problem. Therefore, it's okay to take confiscate all guns on the basis that bad people with guns is a problem.

 

[TurtleDude]

That asset forfeiture has been used to steal from people is exactly the matter. Let's put this in terms you're better able to digest. There are bad people with guns. Bad people with guns is a real problem. Therefore, it's okay to take confiscate all guns on the basis that bad people with guns is a problem.

that's silly. we are talking about civil cases where a claimant has a right to a jury trial and the burden is on the government to prove that the property is more likely than not to be illicit

 

[Cardinal]

that's silly. we are talking about civil cases where a claimant has a right to a jury trial and the burden is on the government to prove that the property is more likely than not to be illicit

And using the "gun confiscation" analogy, you're free to spend your time and money in litigation in order to get your guns back.

 

[TurtleDude]

And using the "gun confiscation" analogy, you're free to spend your time and money in litigation in order to get your guns back.

that's silly. the government would have to prove its case-and unlike narcotics proceeds, there is a constitutional right to own guns

 

[Chomsky]

the issue is this

we award millions to tort victims based on a mere preponderance of the evidence

we award millions to parties in breach of contract cases based on a mere preponderance of the evidence

why should civil forfeiture be different?

now I do not support the war on drugs. but it exists and right now-illegal narcotics proceeds are not something a person legally has a right to own

Alright, you made what's in my opinion a strong legal argument here.

Of course we're not talking about private party civil cases here, but rather about government attachment. I may not be able to make a legal argument here, but I would like to see the government held to higher standards than that of between private citizens, similarly to the way we apply the 1st A. So in this case (drugs), I'd prefer the government be held to provide a criminal conviction firstly.

I otherwise see too much danger of government encroachment & abuse here.

 

[TurtleDude]

Alright, you made what's in my opinion a strong legal argument here.

Of course we're not talking about private party civil cases here, but rather about government attachment. I may not be able to make a legal argument here, but I would like to see the government held to higher standards than that of between private citizens, similarly to the way we apply the 1st A. So in this case (drugs), I'd prefer the government be held to provide a criminal conviction firstly.

I otherwise see too much danger of government encroachment & abuse here.

i'd rather end the war on drugs. BTW the government often engages in "affirmative civil enforcement" that only requires civil standards of proof but which can cost businesses or individuals millions of dollars.

 

[Carjosse]

that's silly. the government would have to prove its case-and unlike narcotics proceeds, there is a constitutional right to own guns

The 4th amendment against unreasonable search and seizure of property. Do you just not care about any of the the amendments after the 2nd?

 

[Cardinal]

that's silly. we are talking about civil cases where a claimant has a right to a jury trial and the burden is on the government to prove that the property is more likely than not to be illicit

Irrelevant, because your guns have been arrested in connection with a possible crime, not you. However, you can get your guns back quite simply. As this page on asset forfeiture lays out...

"Begin the process of recovering your property guns by contacting an experienced civil or criminal defense attorney, who should have previous experience in recovering property guns seized through asset forfeiture."

https://criminal-law.freeadvice.com...orfeiture-confiscated-property-what-to-do.htm

 

[What if...?]

A few days ago jamesrage posted this thread about how Mississippi wants to make it easier for police officers to take cash and vehicles through civil forfeiture.

Do you think civil forfeiture should exist? Is it a violation of constitutional rights? If you support it, why?

I see it only as legalized theft by police, there is no reason why police should be able to take property without having to prove it first or charge someone of a crime.

I am not opposed to it per se.

However, the way it is done now is WRONG!

If one is convicted of a crime, it is not unreasonable to seize the fruits of the crime from them.

But now they do it civilly, which requires one to first post bond, 100% iirc, and then prove one didn't get the money illegally. The state does the usual of drowning one in motions. Miss a response and you lose. None of this requires even being charged, much less convicted, of any crime.

This creates many situations where getting your money/car etc would cost more than their value. So one walks away.

Property successfully stolen.

 

[TurtleDude]

The 4th amendment against unreasonable search and seizure of property. Do you just not care about any of the the amendments after the 2nd?

where do you get this crap from? we are talking about legal search warrants backed up with probable cause.