It’s my understanding that it originated with Admiralty law. Maritime authorities were given the authority to confiscate money and goods on the spot because very often the perpetrators were based in another nation that would simply refuse to punish criminals based there. While not the best solution, the exigencies of the situation pretty much forced them to it unless they wanted smugglers and such to just be able to sail blithely by with nobody able to do much about it.
Obviously that doesn’t apply to crimes committed *within the borders *of the US. On land it’s just greed; legalized theft.
At present, I argue that no state, and certainly not the federal government, require that the property owner prove their case. Forfeiture is a civil proceeding, and the government bears the burden of proof by preponderance of the evidence. In One Lot Emerald Cut Stones and One Ring v. United States, 409 US 232 (1972), the claim is made that acquittal of the associated criminal charge should operate as collateral estoppel against the civil forfeiture. The Court observes:
(emphasis mine)
Any state law that placed the burden on the owner, and not the government, would run afoul of the Due Process Clause. I certainly welcome citation to the contrary.
Here you go. This was the old law in Washington, but it changed only because the legislature amended to change the burden of proof, not for any constitutional reason.
I don’t have the energy to look right now, but I’m quite sure the burden of proof in the federal system was the same until Rep. Hyde couldn’t stand it anymore.
Fine. The property owner doesn’t have to “prove it”; the government has to “prove it”.
But how does that work exactly? Bob is stopped with, say, $2,000 in cash; Bob says it’s to buy a used car from some guy he got in touch with via Craigslist; the government says it was money from selling drugs; or it’s money to buy drugs with; or at any rate, it’s bad, bad, naughty dirty money that needs to be given a good spanking.
So, after the sheriff’s deputy seizes the money, Bob just goes down to the county courthouse and says “Hey, y’all took my money! Nobody charged me with nothing! You guys have to prove that money was dirty!” and the Government Guys In Suits say “Oops, we can’t! Our bad! Here’s your money back; sorry for the inconvenience, sir!” Is that how it works?
Or does Bob have to hire a lawyer to represent him in this matter? And if so…is this one of those Free Lawyers? Will the lawyers’ fees cost Bob more or less than the value of the money or other property that was seized? If Bob (and Bob’s Lawyer) win the case, does the local sheriff’s department have to pay Bob’s Lawyer’s fee, and give Bob his money back, with interest? (Not to mention help Bob find another suitable used car listing on Craigslist, because that other deal totally fell through after Bob never showed up at the Walmart parking lot with cash in hand to buy the damned car.)
OK - I strongly suspect that the scheme would not have survived much longer without toppling to a Supreme Court ruling, but, as you acknowledge, the law was changed and the current law places the burden of proof on the government.
I hope you agree that the Fourth Amendment prevents unreasonable search and seizure.
But I will tell you now that if the issue were that Bob was arrested without probable cause, the local sheriff’s department does not have to pay Bob for the day he missed work, or help Bob find another suitable used car listing on Craigslist, because that other deal totally fell through after Bob never showed up at the Walmart parking lot on account of being arrested.
So the questions you’re asking do not establish that Bob has to “prove” his own innocence any more than they establish Bob has to prove his ownership of the cash. In both cases, Bob is going before a neutral magistrate to force the government to prove its case.
That doesn’t actually answer any of my questions. When Bob “goes before a neutral magistrate to force the government to prove its case”, he doesn’t have to pay someone–quite possibly pay someone more than the value of the money or other property that was seized–he can just go to the courthouse all by himself?
Well, Bricker, I take it that you believe that there’s no real problem with civil asset forfeiture laws as they currently exist and are practiced throughout the United States, and that these horror stories we read about in mainstream media are all just so much “fake news”, and that the politicians of the left, right, and center who regard these practices as abusive and wrong are just a bunch of soft-on-crime bleeding-hearts and overly excitable chuckleheads?
What i think is: the burden of proof rests with the government doing the seizing, not the owner from whom the property is seized. You can tell that’s what I think, because that’s what I wrote.
Nothing I wrote suggests a more general approval of the process, or an opinion on the abusiveness of in rem forfeitures.
the problem with civil forfeiture does not lay with the burden of proof. The problem is that the onus is on the citizen to act to get it back. In IL after assets are seized the court has 14 days to determine if there was probable cause. Once the decision is made they have 45 days to inform you - via registered mail if they know your address or by public notice if they don’t. Then you the citizen, have 45 days to respond to the court. If you fail to respond in that time YOU LOSE THE ASSETS; whether there was probable cause or not. If you do respond you then have a lenghty, costly, and complex proceedure to endure. If the court decides there was no probable cause and you file timely, you still have to “prove” that the assests belong to you. It’s stacked against the citizen at every turn.