Kristeen Hernandez aka Lady2Soothe Follow @OurVoicesEcho
“In rem forfeiture” is a legal term describing the power a court may exercise over property (either real or personal) or a “status” against a person over whom the court does not have in personam jurisdiction; Latin phrase meaning “directed toward a particular person” which arose from medieval ideas, rooted in the ancient law of “deodand” a thing forfeited or given to God, specifically, in law, an object or instrument which becomes forfeit because it has caused a person’s death. The English common law of deodands traces back to the 11th century and was applied, on and off, until Parliament finally abolished it in 1846.
Kings, for example, could seize an instrument which caused the death of another in order to finance the deceased’s funeral mass. The idea arose from a superstitious belief objects acted independently causing death. While the concept of deodand gives rise to the “guilty property” legal fiction, American forfeiture law did not arise strictly from this concept but rather from the British Navigation Acts of the mid-17th century.
In the mid-1600s, a set of laws known as the British Navigation Acts permitted the seizure of any ship refusing to sail under the British flag. The Acts were passed during England’s vast expansion as a maritime power and required imports and exports from England to be carried on British ships. If the Acts were violated, the ships or the cargo on board could be seized and forfeited to the crown regardless of the guilt or innocence of the owner. Later, during the colonial period, Congress based certain laws on the Navigation Acts to help in tax collection. While these early colonial practices helped the government generate revenue Civil Forfeiture Laws, these laws were recycled in the 1920’s Prohibition era when alcohol sales and production were illegal in the United States. Anyone found buying or selling alcohol would be subject to the seizure of the product and their cash.
The practice of civil forfeiture made a booming comeback in the 1980s illegal drug trade became a big problem for law enforcement agencies, and lawmakers were determined to find a solution so in 1984 they enacted the Comprehensive Crime Control Act which overhauled the federal criminal code, allowing federal and state agencies to share the proceeds of seized assets. Though civil-asset forfeiture has a long history, it took off in the U.S. following passage of several amendments to the Comprehensive Drug Abuse and Prevention Act allowing police to keep and spend forfeiture proceeds. This gave law-enforcement agencies a direct financial incentive to expand their reach and confiscate more assets which led the Institute for Justice labeling it “Policing for Profit“. In 1986 the Federal Asset Forfeiture Fund took in $93.7 million.
Teaching Cops Around America To Seize Millions In Cash
http://www.washingtonpost.com/sf/investigative/2014/09/07/police-intelligence-targets-cash/
Desert Snow has trained cops around the US on the art of roadside asset forfeiture, which grants police to take cash and/or other assets they claim have been illegally obtained. Police can expropriate these assets from people even if they’re never convicted of or even charged with a crime.
Desert Snow works closely with Black Asphalt Electronic Networking & Notification System a private intelligence network for police enabling communication between Road Officers, Narcotics Officers and Federal Authorities to share reports and chat online throughout the nation. This association allows Road Officers to pass roadside investigative information to active investigators in source and destination areas, helping them to conduct immediate follow up investigations to identify and apprehend additional criminals and also has serve as a social hub for a new brand of highway interdictors (a military term for the act of delaying, disrupting, or destroying enemy forces or supplies en route to the battle area). In recent years, the network had more than 25,000 individual members that one Desert Snow official has called “a brotherhood.” Among other things, the site hosts an annual competition to honor police who seize the most contraband and cash on the highways. As part of the contest, Desert Snow encouraged state and local patrol officers to post seizure data along with photos of themselves with stacks of currency and drugs.
At least three Desert Snow employees impersonated officers in Caddo County Oklahoma while working with them to stop motorists in exchange for 25% of the cash seized.
The Equitable Sharing Program allows the proceeds of liquidated seized assets by asset forfeiture to be shared between state and federal law enforcement authorities. With Equitable Sharing, state police can skirt state restrictions on the use of funds thereby local police can evade their state’s rules against forfeitures or restricting use of forfeitures by bringing in federal officers thereby receiving as much as an 80% kickback. . By 2010 more than $500 million was distributed through the program and over $5 billion in net assets since the program was launched in 1984. In December 2015 the Department of Justice suspended some equitable sharing however loopholes have allowed several states to continue.
No longer is civil forfeiture tied to the practical difficulties of obtaining personal jurisdiction over an individual. Released from its historical limitation as a necessary means of enforcing admiralty and customs laws, the forfeiture power has instead become a commonly used weapon in the government’s crime-fighting arsenal. Congress and states have expanded its application beyond alleged drug violations to include a plethora of crimes at the federal and state levels. Many Law Enforcement Agencies view civil forfeiture as a fundamental source of income.
The reason law enforcement prefers Civil Forfeiture over Criminal Forfeiture is the procedure stacks the deck against property owners because in civil proceedings the government only needs to prove the property’s connection to alleged criminal activity by a mere “Preponderance of Evidence” not proof “Beyond a Reasonable Doubt” as in criminal cases.
Few property owners can meet the burdens of civil forfeiture and regularly aren’t able to challenge a seizure, especially when government seizes property which exceeds value of time, attorney fees and other expenses to battle the case in court; therefore the government retains the property by default.
In 2000, Congress passed the “Civil Asset Forfeiture Reform Act (CAFRA)”, amending various provisions of federal forfeiture law. CAFRA offered a number of modest reforms, but it didn’t change how forfeiture proceeds are distributed or otherwise alleviate the profit incentive law enforcement agencies employ so many states don’t require their law enforcement agencies to report how much money was raised or how the money has been spent.
Abuse of Civil Asset Forfeiture
Forfeiting ordinary citizens property, the state only needs to show it’s more likely than not the property is related to criminal activity and thus subject to forfeiture. Law enforcement agencies have a colossal financial incentive to “Police for Profit” and they’re taking full advantage of lenient forfeiture statutes and deceptive practice of padding their budget, justifying acceptability to generate revenue putting the property of ordinary citizens at risk. To recover seized property, an innocent owner bears the burden of proving his innocence the property is not derived from illegal activity.
90 percent of U.S. bills carry traces of cocaine which binds to the green dye in money, bank tellers working with cash-counting machines are subjected to cocaine dust. These bank tellers breathe in cocaine daily getting into their system proving a bank teller would test positive. In the course of its average 20 months in circulation, U.S. currency gets whisked into ATMs, clutched, touched and traded perhaps thousands of times at coffee shops, convenience stores and various other businesses and every touch to every bill brings specks of drug residue. How hard is it to prove innocence when bills are tested?
When an innocent person with an interest in the property seeks to protect their interest, the burden should not be on the citizen to prove their innocence but the government to prove criminal liability. There must be a clear and convincing amount of evidence for cash or assets associated with criminal activity to be required beyond just a “reasonable doubt”.
The 10th Amendment of the United States Constitution states “delegate to their political subdivision to enact measures to preserve and protect the safety, health, welfare and morals of the community and any power that is not given to the federal government is given to the people or the states, and protects against government overreach” Civil Asset Forfeiture IS government overreach. So let’s call it what it really is because taking property against someone’s will is not “forfeiting”, it’s LARCENY, the theft of personal property plain and simple.
18 U.S. Code § 981 – Civil Forfeiture
https://www.law.cornell.edu/uscode/text/18/981
18 U.S. Code § 241 – Conspiracy Against Rights
https://www.law.cornell.edu/uscode/text/18/241
Kristeen Irigoyen-Hernandez
Human Rights Advocate, Researcher/Chronological Archivist and member in good standing with the Constitution First Amendment Press Association (CFAPA.org)
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