Although there was not much evidence to support that theory, under federal forfeiture law the government managed to keep Gonzolez's money based on little more than a hunch. A bill introduced last week by Sen. Rand Paul, R-Ky., would make that sort of highway robbery harder to pull off.
Civil forfeiture allows the government to take property from people who are never charged with a crime, let alone convicted, based on the fiction that the property itself is guilty. Gonzolez's case, for instance, is known as U.S. v. $124,700 in U.S. Currency.
A federal judge initially rejected that forfeiture. But in 2006, the U.S. Court of Appeals for the 8th Circuit concluded that the government had "demonstrate(d) by a preponderance of the evidence that there was a substantial connection between the currency and a drug trafficking offense."
Preponderance of the evidence, which requires showing that the government's theory is more likely than not to be true, is a much lower hurdle than proof "beyond a reasonable doubt," the standard used in criminal cases. In between is "clear and convincing evidence," the standard that Paul's bill, the Fifth Amendment Integrity Restoration (FAIR) Act, would require for federal forfeiture.
Nebraska, where Gonzolez was pulled over, actually requires proof beyond a reasonable doubt to complete a forfeiture under state law. But police can avoid that requirement, as they did in his case, through the Justice Department's Equitable Sharing Program, which allows them to take advantage of looser federal standards and keep up to 80 percent of the proceeds.
A 2010 study by the Institute for Justice, a public interest law firm that defends property rights and other civil liberties, found that "equitable sharing" is especially common in states with relatively strict forfeiture rules -- strong evidence of what I.J. calls "policing for profit." The FAIR Act would abolish equitable sharing, thereby preventing police and prosecutors from evading state reforms aimed at reducing forfeiture abuse.
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