September 15, 2015

Civil Asset Forfeiture - A Reply to Rachel Alexander at The Stream...

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 
- U.S. Constitution, Amendment IV

No person shall be ...deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
- U.S. Constitution, Amendment V

This provision seems indispensable to the full enjoyment of the rights of personal security, personal liberty, and private property. It is little more. than the affirmance of a great constitutional doctrine of the common law. 
- Joseph Story, Commentaries on the Constitution, Amendment IV

      At the interesting new website "The Stream," author Rachel Alexander (founder of Intellectual Conservative and author of pieces in other places, as well) pens a blog answering the question "Does Civil Asset Forfeiture Really Go Too Far?" In doing so, I think Alexander does not address the broader issues at stake in civil asset forfeiture and reform, therefore and should take more into consideration in the analysis.

      Part of what John Duffy has called "virtues of conversation"is, I believe, taking the other person seriously, as an independent thinking agent. Part of that virtue, when writing a response such as this, is to attempt to understand and accurately summarize the other's argument. Therefore, I take Alexander's attempt to answer the question as follows:
  1. Civil asset forfeiture consists of seizure of property without (necessarily) charging anyone with a crime, when the property is suspected of being part of some illegal activity, thus preventing its further use in criminal activity.
  2. Civil asset forfeiture is legal, as it has been upheld by the Supreme Court.
  3. The ACLU believes that asset forfeiture has been abused, and presents two cases for consideration, but those cases are only two examples, and not good ones, of mistakes.
  4. While seized assets are often used to fund police departments and other agencies, organizations like the ACLU and Cato go too far in hinting that this is profiteering on the part of such agencies.
  5. Oklahoma counties seized $4 million in cash from 114 people in a five-year span, providing the basis for the ACLU's complaints; however, the ACLU provides only two examples, which aren't good enough, especially since they are not calling for a criminal investigation in OK.
  6. While there are ways to rein in abuses, such as limiting how seized property may be used, improving privacy requirements, and improving transparency, bills such as that proposed by OK Sen. Kyle Loveless go too far in requiring a criminal conviction.
  7. This problem is not as serious as Loveless, Cato, the ACLU or other proponents of criminal convictions claim, because they have failed to support their claims with appropriate evidence.

If this summary is inaccurate, I hope that Alexander or any of my readers will take the time to let me know, so I can revise it, and any other parts of this reply.

First, I think Alexander should expand her view to deal with the entirety of the problems asserted concerning abuse of civil asset forfeiture. Many of the proponents of reform indeed point to lack of criminal charges, but  this is also as a symptom of abuse, rather than a root problem. For instance, I doubt that many reform proponents would contest Bernard Madoff's civil forfeiture of assets. However, proponents become concerned when the government proceeds to people that had dubious connection to the criminal activity. Reformers become even more concerned when civil forfeiture is claimed in cases far exceeding the actual harm, or simply based upon the idea that the amount of money on a person ispo facto indicates the likelihood of a drug deal. When Alexander accuses the ACLU, Cato, etc. of failing to provide enough evidence that civil asset forfeiture is abused due to lack of conviction, she may be correct in this limited view, but she does not appear to have taken steps to review the totality of claims of reformers, nor the idea that laws may be unjust even if only one person has ever been ensnared by them. For instance, the Institute for Justice, here, gives a very good overview and in-depth discussion of the issues they perceive with civil asset forfeiture.

Second, and relatedly, I think Alexander needs to grapple with the question of why requiring criminal charges to be filed is a bad idea? She believes the reformers show a lack of evidence, of bad faith ("the ACLU seems to be insinuating that the police must be corrupt and greedy"), of lack of logic and hidden agenda ("It is telling that the ACLU never provides this full explanation"), and of being hasty ("premature to change the law to require criminal convictions in order to seize property"). However, all of these fail to deal with the reformers' issues concerning seizure of property from the truly innocent, and the difficulties those innocent individuals experience in attempting to recover their property. 

In the end, Alexander seems to have no real argument against civil asset forfeiture reform, nor in favor of it.  She needs to address the larger issues at stake in order for her discussion to have more force and be more convincing to those arguing in favor of reform.

No comments:

Post a Comment