from the recreational-drug-use-is-not-the-same-thing-as-drug-trafficking dept
This could be fun.
Last February, DEA agents took $11,000 from college student Charles Clarke. The funds were to be used to continue his education. The DEA, however, had other plans for the money.
Deciding that Clarke’s one-way ticket, odor of marijuana smoke and the inability to instantly prove all of the $11,000 was obtained legitimately, the DEA seized it. Good thing it did, considering there were 13 law enforcement agencies expecting a percentage of the take.
Clarke was initially charged with assault because he struggled to prevent DEA agents from separating him from the cash he says he spent five years saving. That charge was dropped. No other charges were brought. No contraband or weapons were found on his person.
In asset forfeiture cases, those whose property has been seized by the government must challenge the seizure and provide proof of its legitimate origin. All the government has to do to keep the money is wait the challenge out. In a large percentage of cases, the seizure is never contested. The government has unlimited resources. Those challenging forfeitures do not. In fact, they have even less to work with, thanks to the government’s prior actions, and fighting seizures can be incredibly expensive.
Clarke’s lawyers asked for documents from the government with the intent to prove there are constitutional problems with the practice and that it gives police a profit-driven motive to seize property and funds.
The U.S. attorneys were not able to give all the documents to Clarke’s team and so they took the issue up with Judge Bertelsman. He decide to split the case into two parts:
First; the U.S. attorneys have to prove they have grounds to keep Clarke’s money. I.e., they have to prove that Clarke made the money from drug dealing.
Second; if the government proves the money came from drugs, Clarke’s team will have to argue against the issue of civil asset forfeiture itself. I.e., arguing that the practice is profit-driven or worse.
The burden of proof has been shifted back to where it always should have been, especially when seizures continue without accompanying criminal charges. The government can no longer simply claim Clarke’s ticket, odor and lack of receipts are indicative of illegal activity. It has been ordered to show its work. This will be difficult because, given the lack of charges against Clarke, it most likely has nothing to present to the judge in the way of evidence.
If it somehow manages to round up some evidence proving its “guilty money” theory, it’s still not in the clear. It will then have to defend the idea of civil asset forfeiture if Clarke’s lawyers sufficiently demonstrate to the court the program’s nasty side effects.
But it’s the first part that’s the most important. Given the fact that government agencies can seize property without securing convictions, orders like this one force the government to come up with better evidence than “one-way ticket” or “marijuana odor.” The DEA must now find some way to connect the money it took to criminal activity, something agencies that participate in forfeiture programs don’t have much experience in doing.