The continuing forfeiture scourge

A federal crime wave is sweeping the nation, and prosecutors and G-men could not be happier about it. The Wall Street Journal reported that government “forfeiture programs confiscated homes, cars, boats, and cash in more than 15,000 cases [in 2010]. The total take topped $2.5 billion, more than doubling in five years, Justice Department statistics show.”

Beginning in 1970, Congress enacted legislation to permit the seizure of property of Mafia organizations and major drug smugglers. In succeeding decades, more laws were passed, expanding their scope far beyond organized crime. Federal agents can now seize private property under almost 400 different federal statutes.

In the old days, possession was nine-tenths of the law. Nowadays, gossip has become nine-tenths of possession. Under asset-forfeiture laws and regulations, thousands of American citizens are being stripped of their property solely on the basis of rumors and unsubstantiated assertions made by government confidential informants. Due process for property rights nowadays amounts to a policeman’s giving a citizen a receipt for the cash the policeman seized for no reason from the person — and allowing the citizen to sue the police department to get some of his money returned.

In the movie Monty Python and the Holy Grail, one of King Arthur’s knights stumbles upon a mob of peasants wrangling over whether a suspect is actually a witch. The leader of the mob proposes using the most scientifically advanced test available — checking to see if the accused witch weighs more than a duck. After the suspect fails the duck test, the joyful peasants drag her off to be burnt.

Justice has made great progress in the subsequent 1,000+ years. Nowadays, law enforcement is not allowed to seize a person’s life savings unless a dog wags his tail — or barks — or paws the ground — or otherwise shows a positive alert.

The Wall Street Journal last year reported the results of a Delaware drug sniff:

"Jorge Jaramillo, a construction worker, says he couldn’t afford a lawyer after more than $16,000 was seized from him last year in a traffic stop. “I had all of $20 left,” he says. In a Delaware federal-court filing, the Justice Department argued the money was related to drug dealing. It pointed to air fresheners in the car, which could mask the smell of drugs, and a fast-food bag containing cigar tobacco, which the filing said was often a sign that the cigar wrapper had been used to smoke marijuana. The filing also said a police dog had signaled that the cash carried residue of illegal drugs. Such “dog sniffs” are a common but controversial feature in forfeitures."

Jaramillo eventually got his money back — but only because one of the nation’s top forfeiture defense attorneys, David Smith, took his case on a pro bono basis. In most cases, defendants cannot afford the price of an attorney to fight the government to reclaim their property.

Federal judges have denounced dog sniffs as an unreliable test for drug trafficking at least since the 1980s. But federal prosecutors still invoke such tests to create a pretext to stuff the government coffers with private property. (The Supreme Court is currently deliberating on a case involving canine alerts.)

Original report here




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