So if I may, I would like to explain the basic problems with asset forfeiture in simple and straightforward terms. In their opposition to it, the editors at National Review said, “Asset forfeiture is a constitutionally questionable practice,” and while it was good to see them calling for Jeff Sessions to get a hold of himself, I would prefer to call it constitutionally damnable. The Attorney General just loosened some of the restrictions on the godless practice that the Obama administration had placed on it . . .
Excuse me. I have to go lie down for a bit.
Over the last decade, the government has seized 3 billion (with a b) worth of goods from people who were never charged with a crime. This can happen because the bulk of cases come from civil cases. That’s right. They can just take your stuff, never charge you, and never return it. Your stuff—the French always have an apt phrase—is les gone.
Just because the police like it, and just because it seems strict, and just because it cracks the heads of some drug kingpins, doesn’t make it good law. It is still vile. It is wicked, and the fact that some Republicans like it doesn’t alter that fact. It is a due process defenestration. If someone in law enforcement thinks that some money he saw in the trunk of your car may have been obtained illicitly (e.g. selling drugs), then he can just take it. His department can spend it.
So we are talking about perverse incentives here. For another example of “policing for profit,” say a municipality sets up traffic cameras in order to catch speeders and “it-was-not-quite-red-yet traffic light ignorers,” and as a consequence they start to get a nice little revenue stream from it. But now the purpose inexorably shifts from traffic safety to maintaining the revenue stream. So now your municipality needs you to speed in the same way that Baskins & Robbins needs you to want three scoops right about now.
Attorney General Sessions adjusted the asset forfeiture rules so that local police departments could get around state laws against asset forfeiture by sharing the loot with the Feds.
So there are three basic reasons to be appalled at this Institutional Larceny.
First, there is the Tenth Amendment to be concerned about. If a state has taken action to protect its citizens against ungodly asset forfeiture, the federal government has no business waltzing in to take that protection away.
Second, the big one, is that this practice insults the practice of, the idea of, and the memory of, due process. Even when a cop finds cash in the trunk of a car of an actual drug dealer, one guilty as sin, it is gross violation of due process to execute part of the sentence, perhaps the heaviest portion of the sentence, before a trial. If there is a trial. Trial? Sentencing before a trial, and sentencing without a trial, is the kind of thing that might fly in Sharkey’s Shire. But why here?
And third, we ought not to agree to live in a society where those charged with keeping order have built-in financial incentives to jigger with the scales of justice. Talk about a conflict of interest. Golly Ned. Sometimes it seems the War on Drugs has resulted in all our rulers taking them. Maybe they seized some of those assets too.