DOJ: Civil Asset Forfeiture Is A Good Thing That Only Harms All Those Criminals We Never Arrest

from the nothing-good-to-say-but-all-the-space-in-the-world-to-say-it dept

Deputy Attorney General Rod Rosenstein has taken a brief vacation from his “Responsible Encryption World Tour” to defend the merits of something equally questionable: civil asset forfeiture. [h/t Meaghan Ybos]

As is the case with any article defending the practice of taking “guilty” stuff from people without even bothering to determine whether the people were actually guilty of anything, Rosenstein’s WSJ editorial glosses over the thousands of abuses to home in on a high profile case: the prosecution of Bernie Madoff.

Thanks to civil asset forfeiture, the Department of Justice is announcing today the record-setting distribution of restitution to victims of Bernard Madoff’s notorious investment fraud scheme. We have recovered $3.9 billion from third parties—not Mr. Madoff—and are now returning that money to more than 35,000 victims. This is the largest restoration of forfeited property in history. Civil forfeiture has allowed the government to seize those illicit proceeds and return them to Mr. Madoff’s victims.

To be clear, assets taken from Madoff were seized via criminal asset forfeiture, which requires a conviction. Rosenstein’s decision to open with this glosses over this difference, allowing the reader to think civil/criminal asset forfeiture are barely distinct entities. His op-ed doesn’t actually say how much of that $3.9 billion came from civil asset forfeiture — a process that has nothing to do with a criminal prosecution like Madoff’s.

From there, Rosenstein says the expected stuff: civil asset forfeiture is just a way of crippling criminal enterprises, despite it being predicated on one-sided accusations about the allegedly illegitimate origin of seized property and tied to a judicial process that discourages citizens from attempting to reclaim their possessions.

The opening paragraph also makes it appear as though civil asset forfeiture is often used to return unlawfully obtained assets to victims of crime. Nothing could be further from the truth. While this occasionally happens in criminal forfeiture cases, the lack of criminal charges in civil forfeiture cases makes it extremely unlikely there will be any “victims” to “return” seized assets to.

In most cases, the agency performing the seizure is allowed to directly benefit from it. Whether it’s used to pay for new equipment or offset investigatory expenses, seized property rarely ends up back in the hands of victims.

But you won’t be hearing any of that in Rosenstein’s pro-forfeiture pep talk. Instead, he presents civil forfeiture as a skillfully-wielded scalpel, rather than the property-grabbing cudgel it actually is.

Some critics claim that civil asset forfeiture fails to protect property rights or provide due process. The truth is that there are multiple levels of judicial protection, as well as administrative safeguards.

First, money or property cannot be seized without a lawful reason. The evidence must be sufficient to establish probable cause to believe a crime was committed. That is the same standard needed to justify an arrest.

Second, if anyone claims ownership of the property, it may be forfeited only if the government presents enough evidence in court to establish by a preponderance of the evidence it was the proceeds of crime, or was used to commit a crime.

Courts apply the “beyond a reasonable doubt” standard only in criminal cases. That high threshold of proof is appropriate when the stakes involve a person’s criminal record and potential imprisonment. But all other lawsuits, no matter how much money is at issue, use the normal civil standard. There is no logical reason to demand the elevated criminal standard in a lawsuit about illicit proceeds.

First, the money can be seized for any reason, with justification supplied after the fact. Stating law enforcement needs “probable cause” to seize property is simply untrue. Rosenstein knows this because he points out the standard of evidence needed to secure the forfeiture is actually lower than the standard needed to secure a warrant: “preponderance of evidence.” If probable cause were actually needed, drivers and travelers wouldn’t have to worry nearly as much about having their cash seized by highway patrol officers during traffic stops or by DEA agents while passing through airport security. Pretextual stops and scanning passenger manifests for one-way ticket purchases are no one’s idea of “probable cause.”

Furthermore, if the standard of evidence needed prior to seizure was actually the same as the requirement to secure an arrest warrant, more seizure victims would be arrested. But they’re not. They’re usually free to go, minus whatever law enforcement officers have taken from them.

As for the last part, Rosenstein is right: we shouldn’t need to change the standard of evidence in civil cases. But that’s not where the change is needed. If property is being taken from criminals — as Rosenstein and other forfeiture supporters claim — then all seizures should be of the criminal variety: a conviction should be required. This leaves civil lawsuit evidence requirements unchanged… just the way Rosenstein prefers it.

Then there’s this, which Rosenstein offers up as some sort of proof that the government is in the right at least 80% of the time when it takes property from citizens without charging them with crimes:

About 80% of the time, nobody even tries to claim the seized assets.

Well, let’s look at this. Rosenstein talks billions in his Madoff anecdote, but the reality of civil asset forfeiture is a majority of seizures fall well under the $1,000 mark. Considering the long, uphill battle facing forfeiture victims, anything short of several thousands dollars usually isn’t worth the effort. In those cases, the expenses of challenging the forfeiture would outweigh the the value of the property recovered. This is a stupid stat that proves nothing.

The years of documentation of widespread forfeiture abuse by law enforcement agencies? It’s reduced to this by the Deputy Attorney General:

To be sure, law-enforcement officers sometimes make mistakes.

Come on, Rod. This is just embarrassing. You want the private sector to trust you and get on board with DOJ encryption key escrow, etc.? Maybe stop lying to the public. Maybe discontinue this gross minimization of repeated, abusive law enforcement behavior. Maybe do something more to curb forfeiture abuse. Hell, try doing anything at all. The only thing the DOJ has done in recent months is open back up the federal forfeiture adoption program — something that has been abused for years by law enforcement agencies looking to route around restrictive state laws.

It’s unsurprising the DOJ would argue publicly that civil asset forfeiture is A-OK and good for America. It’s just unsettling that the arguments are this bad.

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Comments on “DOJ: Civil Asset Forfeiture Is A Good Thing That Only Harms All Those Criminals We Never Arrest”

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AnonCow says:

I’ll wager that there is a significant level of difference in forfeiture rates in jurisdictions where the forfeited assets go back to the agency that confiscated them versus jurisdictions where forfeited asset go to the general fund.

In NYC, forfeited assets go to the police pension fund. How is that not a guarantee that abuse will happen?

trollificus (profile) says:

Re: Re:

lol. Well, it IS a way to get the boys in blue to contribute more to their generous, often-inflated, pensions. A nasty, cynical way that is abusive of the very people they are supposed to serve, but I can see the attraction for politicians looking at the unfunded portion of their pension obligations.

And really, people in New York elect the politicians who give this kind of thing to them. Good and hard.

freedomfan (profile) says:

Civil asset forfeiture is the government saying, "Remember all that happy talk about due process and innocent-until-proven-guilty? HAHAHAHAHAHAHA!"

Civil asset forfeiture should not be a tool of law enforcement. Full stop. If someone has broken the law, then gather the evidence, arrest them, prove it in court, and then a judge decides whether the state can confiscate their ill-gotten gains. That’s criminal asset forfeiture. It’s typically hard to argue against, which is why Rosenstein is trying to conflate it with what he’s defending. Skipping the first three steps (and, in so doing, calling into question the critical "ill-gotten" part of the last step) is civil asset forfeiture and it is an affront to anything one could call justice.

The deceptions and outright lies Rosenstein makes are a reflection of how desperate the pro-theft crowd have gotten. They know that, in the end, arguing that government should be able to take people’s stuff without a trial is a loser. Everytime they have a compelling example of an actual bad guy, the obvious response is, "So, why not convict him, so we can take his stuff and get him off the street?" Every other example is one of either potential or obvious abuse, where they have a hard time showing there was ever an actual bad guy.

trollificus (profile) says:

Re: Re: Re:

Sadly, I can see this as being one actual example of police discriminating by race, ethnicity, etc. If I were a police, looking to get free shit, I’d ignore the white people in nice cars…sure, they got money, but it’s not right with them in the car. Cop can’t walk away with their money.

Ah, but look at the percentages of people (by race) who are, as they say “unbanked”, who deal in cash that is NOT produced by the drug trade…THEY might be worth a “license plate light’s out” traffic stop.

Unlike some other complaints about police profiling and stuff, THIS is an actual abuse actually visited disproportionately on “marginalized groups”.

Ben (profile) says:

Re: Re:

However, those people are only entitled to the amount of money they put into the Ponzi scheme, so any profit is claimable to make the other investors/victims "whole".

So, those people who did well and retired/exited before the whole show fell apart should not get to keep their winnings in the hope that it will at least return some restitution to others.

Daydream says:

Question: What happens if you just say no to having your stuff taken?

Like, if you say “No, you don’t have permission to steal my stuff. If you’re really certain it came from criminal activity, you can get a search and seizure warrant. If you try and take it now then I’ll bring suit against you for trespass.”

Would they back down? Would they arrest you? Would they just ignore you and steal your stuff anyway?

trollificus (profile) says:

Re: Re: Question: What happens if you just say no to having your stuff taken?

Probably would depend on how you presented your argument. I can see some ways getting you arrested, not for anything to do with the money they were gonna steal, but for ‘resisting’.

You MIGHT be able to calmly and clearly register your position without provoking them to do any more that just…going ahead and stealing ur stuff anyway.

That One Guy (profile) says:

Re: "It wasn't a request."

I imagine at that point you would be presented with the ‘offer’ of letting them steal your stuff while you stay silent, or being cuffed, possibly arrested while they steal your stuff anyway.

Bandits(whether with badges or not) generally don’t take very well to people standing up to them, and tend to respond accordingly.

Personanongrata says:

Less Than Zero at DoJ (HAHA)

DOJ: Civil Asset Forfeiture Is A Good Thing That Only Harms All Those Criminals We Never Arrest

Deputy Attorney General Rod Rosenstein is a fraction of an American and a US government tool.

Resign you worthless tax feeding turd.

Bold/italicized text below was excerpted from the website a report titled:

Police Civil Asset Forfeitures Exceed All Burglaries in 2014

Then by 2014, that number had ballooned to roughly $4.5 billion for the year, making this 35% of the entire number of assets collected from 1989 to 2010 in a single year. According to the FBI, the total amount of goods stolen by criminals in 2014 burglary offenses suffered an estimated $3.9 billion in property losses. This means that the police are now taking more assets than the criminals.

It is a complete disgrace that so-called law enforcement officers in the US seek out and prey upon our society’s most vulnerable/indigent in order to steal their meager possessions.

You all look so pretty in your costumes but can you provide professional/constitutional policing?

The Wanderer (profile) says:

Re: Less Than Zero at DoJ (HAHA)

Re your use of “tax-feeding”: I sometimes find it interesting to contrast the image of those receiving a government paycheck as “sucking at the government teat” (with the implication that these people do not contribute to society and that the fewer of them there are the better off the rest of us will be) against the image of those working for government as “in public service” (with the connotation of nobly putting themselves forward to do things that society needs done).

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