“Due to the cost of lawyers and length of time it takes to fight these battles, many people simply do not have the means to resist.”
I love the United States Constitution, especially the Bill of Rights. The concepts laid out in it are amazing. The belief that we have the right to choose our own destinies, live free of government constraints (in theory), and own our own property is phenomenal. That last one is laid out very clearly in the Fifth Amendment to the Constitution:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
This amendment makes it very clear that the government is forbidden to take anything from you without criminal cause and a trial by which you are found guilty. The key wording here is due process of law. The Merriam-Webster dictionary defines due process as “a course of formal proceedings (such as legal proceedings) carried out regularly and in accordance with established rules and principles.”
It is now time to introduce a new concept into this discussion: civil asset forfeiture. This concept has been around for as long as civilizations have existed. The concept is referenced in the Old Testament, as well as ancient Greek and Roman laws. The theory behind it makes sense. It essentially allows the government to seize property that was used in the furtherance of a crime or acquired through illegal activity.
In the United States, the first codified law regarding civil asset forfeiture was in 1789 and was used to seize illegal cargo smuggled into the US. However, it was the Comprehensive Crime Control Act of 1984 that dramatically changed the landscape. This law introduced the concept of Administrative Forfeiture which according to the Department of Justice,
“is an in rem action that permits the federal seizing agency to forfeit the property without judicial involvement. The authority for a seizing agency to start an administrative forfeiture action is found in the Tariff Act of 1930, 19 U.S.C. § 1607. Property that can be administratively forfeited is: merchandise the importation of which is prohibited; a conveyance used to import, transport, or store a controlled substance; a monetary instrument; or other property that does not exceed $500,000 in value.”
The two key points of this type of forfeiture is that it requires no conviction to be had or even crime to be committed and that the police are allowed to keep a portion of the assets they confiscate.
This should scare any American, no matter what your political stance or values. In fact, this was one of the only areas in which I agreed with the Obama administration. Under the Obama administration there were active steps taken by the attorney general to rein in this practice and there is good reason for this.
When Reagan signed the Comprehensive Crime Control Act of 1984 into law it was done to try to make a direct impact upon the drug cartels bringing their wares into the country via expensive and high-speed boats and planes. Through the use of this law, the DEA could go directly after the assets even if they were not able to achieve a legal conviction. All they needed was probable cause to believe that a crime had been committed. Over the years the law continued to evolve and now most states have very similar laws in place.
However, what started off as a desire to attack the most vicious evils in our society has turned into a cash cow for police and prosecutors willing to turn their backs on the Constitution. The problem is that this law allows for the burden of proof to be literally turned on its head. As long as the police can say that they had probable cause to suspect a crime, virtually any tangible object can be seized and the burden of proof is placed upon the accused to prove their innocence. Due to the cost of lawyers and length of time it takes to fight these battles, many people simply do not have the means to resist.
A story in the New Yorker by Sarah Stillman highlights the problems with these policies. In the story, Stillman tells us about Jennifer Boatright, her boyfriend Ronald Henderson, and her two children. As they were driving through the town of Tenaha, Texas, they were pulled over and their car was searched. The police found the couple’s savings stuffed in the center console. When asked, the couple stated that they were heading to a local town to purchase Jennifer a used car. Due to the fact that the route was a known drug corridor the police asserted that they had probable cause to believe a crime had been or would be committed.
When the couple was taken to the police station, they saw two tables in the corner covered in what appeared to be seized money, jewelry, electronics, etc. According to Stillman, “The county’s district attorney, a fifty-seven-year-old woman with feathered Charlie’s Angels hair named Lynda K. Russell, arrived an hour later.
Russell, who moonlighted locally as a country singer, told Henderson and Boatright that they had two options. They could face felony charges for ‘money laundering’ and ‘child endangerment,’ in which case they would go to jail and their children would be handed over to foster care. Or they could sign over their cash to the city of Tenaha, and get back on the road.
‘No criminal charges shall be filed,’ a waiver she drafted read, ‘and our children shall not be turned over to CPS,’ or Child Protective Services.” It was later discovered that the police officer who pulled them over had received praise from the city marshal for all the complaints that had come from people whose property he had legally stolen.
Sadly, this is far from the only example. When you allow any organization to seize property for their own gain the risk of abuse is simply too high to prevent it. Especially when the organizations are allowed to keep upwards of eighty percent of the property taken. This is something that one would think to find in the Soviet Union or North Korea.
The reason that this is once again becoming an issue is that Attorney General Jeff Sessions recently rolled back the safeguards the Obama administration had put into place and is currently trying to actually expand the use of civil asset forfeiture. In what I would consider a mockery of justice, his safeguards for individual rights are that the agencies seizing the property should proceed with caution but enact no judicial oversight into the process.
Some states have changed their laws so that they can no longer freely take property from those who are, by all rights, innocent. In New Mexico, North Carolina, Minnesota, Montana, and even in the Socialist Republic of California the states now require a conviction for a crime before assets can be absorbed by the state.
I have been a fairly outspoken supporter of this President and his administration. I believe that for the most part they have fought to return the nation to the core of her principles, freedom for the individual. However, this current move is something so out of touch with values we stand for that I find myself agreeing for once with the snowflakes marching up and down the streets.
This is the essence of Fascism. As Benito Mussolini, leader of the Italian National Fascist Party stated, “The keystone of the Fascist doctrine is its conception of the State, of its essence, its functions, and its aims. For Fascism the State is absolute, individuals and groups relative.” That description sounds pretty accurate when describing this policy that is being renewed by Sessions, and I hope someone in the administration puts a stop to it.