Paul Jacob

The “innocent until proven guilty” concept is at the very heart of our legal system. Government ought not be able to exact punishment for a crime until proof has been established, beyond a reasonable doubt, by a jury of one’s peers.

But this foundational principle of justice has been tossed out the window in recent years, at least in one realm, that of civil or asset forfeiture. Civil forfeiture allows police to seize more than $1 billion worth of property each year — cash, cars, boats, etc. — that is alleged to have been used in the furtherance of a crime.

The problem is that police don’t have to prove a crime has actually been committed in order to seize someone’s property. Or that the owner of the property committed said crime.

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And once your boat or car is stolen by your government, the burden falls to you to prove your stuff innocent.

The current practice, which has its origins in pre-republican, authoritarian law, inverts common law justice. Upside down and backwards, justice becomes its opposite: tyranny.

But it’s a profitable tyranny. Police departments are getting rich on the proceeds from all the loot they seize from folks never convicted of a crime. As the Institute for Justice argues, civil forfeiture laws provide an ugly incentive for police “to enforce the laws in ways designed to maximize forfeiture income rather than to minimize crime.”

Now a challenge has reached the U.S. Supreme Court. Alvarez v. Smith concerns six people whose money or cars were seized by Chicago police, though three of them were never charged with a crime.

The question is whether they received due process. The Illinois federal district court ruled they did. The Seventh Circuit Court of Appeals, however, reversed the lower court, and mandated a “prompt” hearing process to determine the validity of the seizure, concluding, “The point is to protect the rights of both an innocent owner and anyone else who has been deprived of property.”

Filing briefs in favor of more free-wheeling civil forfeiture are a number of state governments, the National Conference of State Legislatures, the National Association of Counties, the National League of Cities, the U.S. Conference of Mayors and other groups representing government entities. It is no coincidence that these groups are those that have become somewhat dependent on spending the ill-gotten gains.

The friend of the court brief signed onto by city and county groups argued, “The State has strong interests in seizing forfeitable property and having sufficient time to assess whether it should be forfeited.”

No doubt. Lots of them.

The Institute for Justice, the Cato Institute, the Reason Foundation, and the ACLU have filed amicus briefs arguing due process had been denied. “Giving closer scrutiny to the actions of public officials and agencies when they have a direct financial stake in the outcome of proceedings,” advised the Institute for Justice, “is nothing new for this Court.”

During oral arguments, it seemed the court’s left was right and right was wrong. Justice Steven Breyer questioned the government’s police powers, “Do I have to wait for up to six months, before I have any magistrate, any neutral official, pass on my claim there was no probable cause to take my car?”

But Justice Sam Alito countered on behalf of the government: “They may have him on wiretaps. They may be preparing to arrest him. Now, you want to force them to come into court within 10 or 14 days and disclose the details of a pending criminal investigation?”

Judge Sonia Sotomayor asked the pertinent question, “You take the car and then you investigate?”

The answer, alas, is Yes. And the property is almost never returned.

You might think we were talking about a tin-pot dictatorship, but this is life, today, in these United States. Unless the Court overturns this practice, we might as well stop referring to our republic as a “democracy” and call it what it is: a kleptocracy.

Our governments, local, state and federal, have proven themselves guilty, guilty, guilty.


Paul Jacob

Paul Jacob is President of Citizens in Charge Foundation and Citizens in Charge. His daily Common Sense commentary appears on the Web and via e-mail.