> “If you want the car, and you really want to put it in your fleet, let me know — I’ll fight for it,” Mr. McMurtry said, addressing law enforcement officials on the video. “If you don’t let me know that, I’ll try and resolve it real quick through a settlement and get cash for the car, get the tow fee paid off, get some money for it.”
> In an interview, Mr. McMurtry acknowledged that he exercises a great deal of discretion. “The first offense, if it’s not anything too serious, we’ll come up with a dollar amount, depending on the value of the car and the seriousness of the offense,” he said. “I try to come up with a dollar amount that’s not so high that they can’t afford it, but not so low that it doesn’t have an impact. If it’s a second offense, they don’t get it back.”
What a fucking asshole. That guy is a thug stealing from the public, and he doesn't even try to hide it. He even admits that he's using the practice to impose fines without due process, in direct violation of the constitution.
He's a criminal, and should be treated as such.
> Prosecutors estimated that between 50 to 80 percent of the cars seized were driven by someone other than the owner, which sometimes means a parent or grandparent loses their car.
They're even aware that they're stealing from innocent people, and that they'd likely never get any sort of seizure upheld through having to actually file charges.
Doesn't this completely go against the trias politica principle? The police effectively playing judge and determining the penalty, without due process and even worse, for their own benefit?
Frankly I'm at a loss for words here. It's wrong on every imaginable level. The most worrying to me is, that there seem to be so many people who do NOT see anything wrong with it.
Do so many people miss a basic grasp of right and wrong, of the building blocks of our society? And what are they doing in the police force?
I'm very disturbed by the callousness with which he brags about violating the constitution to get extra-legal justice.
I'm also confused why people always (largely rhetorically) wonder why Americans don't trust officials and are withdrawing from the political process when there are ample examples of officials bragging about their illegal activities without any consequence.
I agree, that right and wrong are the building blocks of society -- of all societies. But you can also see in history and in other nations, what the result is, when those building blocks are missing or when they are repeatedly violated. That is something that makes me fear for the US. When they train those people, that shall uphold right and wrong to be wrongdoers, when legislation fails, because there are to many interest groups, when even judges are judging for money .... the way downhill will be steep!
Already today, as others also posted, the trust into officials is rapidly going downhill in society. Broader and broader parts of society disband legal living, because legality is also often only an excuse for wrong doing. The officials give the example and the complete nation goes downhill step for step.
Government systems that become as large as those in the US, inevitably devolve into gangster tactics. Nothing can ever stop such an outcome, it occurs the same way throughout history. Once so many laws and regulations are on the books, all people become criminals by default; then with so much money floating around it just becomes a matter of stealing it for the people with the guns and free pass to use that force with little to no consequences.
The notion that you could give a government such extreme power, and inflate to such a vast size, and then not suffer these kinds of consequences, is worse than naive - and yet a huge number of Americans think the government needs to get larger and more powerful.
A large number of them are definitely criminals. Unfortunately, it's politically risky for legislators to make even the slightest criticism of "our fine men and women in uniform."
Maybe it's time to get rid of sovereign immunity for the police and make them personally liable for infractions on the rights of the citizens they're allegedly serving. In the last 30 years, it's remarkable how much more police forces nationwide have turned into paramilitary organizations.
I actually think it's simpler: create a special kind of tort citizens can bring against police departments for illegal policing (or other crimes against citizens) which is funded (at least partially) out of the bonuses of the officers in question, and their supervising command staff, all the way up to the chief (regardless of direct command staff involvement, as an infraction against citizens is a sign of negligence); restructure officer pay by cutting it to 60% of the current value and giving them 50% back in bonuses, which can be phrased as a 10% raise; require that any officer which loses their entire bonus for the year through this mechanism be dismissed for being a liability and not be rehireable anywhere in the state. You'd probably also want to add in a law that created a special crime (or even just enhancement to suit damages) akin to evidence tampering for failing to create, lying in, losing, or damaging police records once a suit has been brought or is brought later and it's discovered those records were tampered with or negligently handled. (You could probably even tack in a requirement that police departments not hire officers which are fired from other precincts or who resign within X days of a scandal or as part of a settlement to that scandal.)
Enough states have initiative laws that you could probably pass it based on popular sentiment. In the state I'm from (WA), the legislature requires 2/3rds vote to change an initiative within the first 2 years. This provides enough political cover for inclined state legislators to support it, as all they have to do is do nothing because "the will of the voters". It's also politically dangerous to overturn an initiative within those two years, because it's going to be phrased by the press as suppressing the "will of the people" or what have you.
This structure is actually how many of us are paid (a base rate, a bonus for a good job, and being fired if we can't do the job right) and only requires that the majority of voters think we should hold police accountable for crimes.
I don't think all police officers are trying to be bad people, but I do think that the system is set up where they're basically forced to join in conspiracies to commit and cover-up crimes against citizens.
There are, however, lots of little ways we can change the system to make it more reasonable and punish bad actors.
U.S. Bill of rights, article 7: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;[...], nor be deprived of life, liberty, or property, without due process of law;"
I am not a lawyer, but I do have to wonder, how is 'civil forfeiture' as a whole compatible with the U.S. constitution (or for that matter, that of any country with both rule of law and capitalist property rights)?
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
I don't get how this is still considered constitutional.
I agree with you, but people readily throw out common sense for exact definition over the wider sense of a clause.
In this case I'm sure the word 'unreasonable' can be twisted to where-ever people gaining advantage through want should they continue to face limited resistance.
There's very little incentive for the people who get to decide how the Consititution is interpreted to adopt interpretations that favor individual rights (or even broader social benefit) over state power.
The people who ultimately get to decide that are the Supreme Court justices. They aren't incentivized to act in any particular way, except in accordance with their own philosophical values.
Drug war hysteria may have given us this wave of robbery, but it's sustained by law enforcement's realization that they can, and (IMO) by political unwillingness to raise money for operations through legitimate taxation. "Read my lips, we're taking your car."
Don't blame the parties. The parties react quite readily when called on something - when the electorate demands it. Look into the civil rights - is there any politician now openly opposing equal voting rights? No. Why - because all politicians are suddenly so high minded? No, because it's an extremely unpopular position and will get one's behind kicked on the election day. Now look at more controversial issue - say, gay marriage. Here we have politicians which wouldn't dream of taking position for or against - in certain places - and politicians readily taking the same position in another place. Why? Is it just random? No, it's because their electorate wants it, and politicians whose position does not match their electorate do not get elected. In fact, the president himself notably changed his position quite recently on the issue. Etc., etc. - I could name dozens of issues where politicians did whatever their electorate asked, and changed their tune when the electorate changed their opinion.
So why civil forfeiture is not an issue that effects change? Not because politicians are bad - they are bad in different ways, but at least in the US, their badness still can be controlled to a large measure. But because US citizens are not threatening to kick their politician's asses if they don't fix it. Like they do with many other hot topics of the day, quite successfully, one way or another. Why is that? I'm not sure. Maybe because civil forfeiture is something that usually happens to people that either linked to the criminal world or live in the places which are "sketchy" or don't have money and connections to raise the hype. Maybe because people are reluctant to criticize law enforcement. Maybe because it is served as a part of "war on drugs" and "think of the children", etc. Maybe there's another reason I completely miss - but whatever it is, the problem is not the politicians, the problem is that this issue is not taken as a serious problem by the society. If you want to blame somebody who could effect the change - blame the press. They probably could raise the profile of the issue if they wanted to. But they do not.
So the answer to the question of "who can stop them" - US citizens can. If only they'd want to.
Maybe that's the problem. The two parties are at best reactive. If we'd have a third or fourth party, we'd get parties actually pushing for something and raising awareness about a problem. Most people can't be bothered with this because "it doesn't happen to them".
More parties wouldn't fix anything. Under the US voting system they end up eating each other anyway, because whichever two parties are most alike do better to not run viable candidates against each other since that gives the election to the least similar party.
I'm almost tempted to think that all the gerrymandering they've been doing could be a good thing because it takes the parties out of it. If your district is 80% one party then the primary is the election. Then you can vote for a primary candidate from that party who wants to fix the things you want fixed over the ones who don't.
The problem is then they go to Washington and end up in a Congress which is approximately half of each party and everyone has a safe seat but there are no moderates, so instead of compromising somewhere in the middle you get winner take all and screw the other guys. But when you need House, Senate and President to pass a bill, that means unless one party controls all three nothing gets passed and if one party does then we get some kind of unaccountable shit tornado that one way or another kills thousands of Americans and adds five trillion dollars to the debt. So I'm going to have to say the gerrymandering is net negative (and half of the problem).
The other half is that the federal government is doing things that it shouldn't. Even if you think recreational drugs should be illegal, how is that a federal issue whatsoever? There are still dry counties in this country and there is nothing wrong with that, because that's what the people of those counties want. And judging by recent referendums, federal drug policy is not uniformly what the people want.
You're right that the voting system implies a two-party system; it's a strong reason to consider changing the voting system to something like ranked ballot.
Aren't voting systems, all the way up to the electors in presidential elections, under control of the states, except for where they might impinge on voting rights?
Yes. This is actually a good thing about the electoral college - it decouples the states and tells us what to do when we've got a pile of plurality votes from Wisconsin, instant run off votes from Florida, and range votes from Rhode Island. Imagine trying to pick a winner from those otherwise! You're still faced with finding a majority of electors, which repeats some of the same issues, but as I understand it could involve conversation - which enables deliberate avoidance of some failure modes.
Well yes, the whole voting system in US needs to be overhauled. US may have one of the most human-rights-friendly Constitution in the world, but out of all the "democratic" countries it has one of the least democratic voting systems. Heck, people don't even vote their candidates directly in US. You can hardly get any less democratic than that, in any other democratic country.
But my point was the US needs a proportional party system, which better represents (in aggregate) the wishes of the people. The two current parties don't represent the wishes of a lot of people right now, especially when it comes to issues like foreign policy and surveillance.
A proportional party system would also make it easier for new parties to rise up and become the "major" parties, while the current "major" parties like the Republican and Democratic Party to die off.
For example, a more libertarian party could kill the current Republican Party, which is very little libertarian, especially when you consider the conservative Republicans pretending to be libertarians, but still are pro-surveillance, pro-police state, pro-"tough on crime", pro-wars, pro-christianity, pro-coal - which have nothing to do with libertarian-ism.
Also a more progressive party could kill the Democratic party, with a much bigger push for renewable energy, civil liberties, gun control, campaign finance reform, stronger bank regulations and prosecutions, and so on.
It's all about competition, even in elections. Right now there's no competition to Republicans on the right side, which is why they can afford to vote for bigger budgets for the military and pro-surveillance, despite pretending to be a party of "small government", while on the left side, the Democrats also have no competition when it comes to ensuring banks get punished and are well regulated, and so on.
A proportional party system together with a really good voting system (perhaps approval voting or range voting) could fix most of those problems.
I'm not saying it's all going to be perfect, but for example, if the Republican party wins with a 40 percent share, and the Libertarian Party takes 12 percent, the Republicans will most likely have to ally with the Libertarians to control Congress, otherwise Democrats and Progressives will have a bigger majority than them. And if they do that, then they'll have no choice but to compromise with the Libertarians. They may agree on some issues, such as lower taxes for everyone, but the Libertarian Party could force them to cut military spending or backtrack on surveillance.
And if Republicans continue to be generally Evil Incarnate, then Libertarians could take the Democrats and Progressives' side on civil liberties or renewable energy issues, even without a formal alliance, and could pass strong civil liberties laws even if some Democrats (like now) are against them.
All of the things that you discuss have in fact happened, albeit slowly. It all happens at the state level, because our system is designed to really have no national office beyond the presidency.
Look at mid-20th century politics. The democratic party had a liberal, labor/machine, and southern machine wings. The Republicans were half western libertarian, part monocle-polishing "business". The southern democrats flipped republican after being frustrated by civil rights reforms, and basically took over the republican party.
At the state level, there are often more parties or more evolution within the big parties. For example, New York has a bunch of minor parties that represent sub-groups. These parties don't elect anyone, but can drive votes and the agenda.
It's worth looking at first-generation prohibition through the proper historical lens: it was a womens' issue, largely a proxy for addressing domestic violence and unemployment as a result of untreated alcoholism in men (this was before AA).
Prohibition may be immoral and/or counter-productive, but to those who have experienced the worst elements of alcoholism (personally or societally), the drive to outlaw it is at least understandable, whether or not it is irrational.
Parties don't do that. And they shouldn't. Parties are just tools to convert the individual preferences into policy. There's nobody to do it but the people. The US constitution starts with the words "we, the people". That's who is ultimately responsible. Blaming some external entities may allow people to shift responsibility - it's not me that voted for a congressman who supports war on drugs and never even bothered to send him a letter to say I oppose it, it's "the system", it's "the parties", it's anybody else but me. But in a society like the US, with functioning democratic system and obvious examples of change happening, it's not possibly to honestly blame "those guys". The responsibility is shared by everybody.
Is there a reason it needs to be the parties that push for change. If the parties are reactive to popular opinion, then we can influence policy through some non-party organization, such as the ACLU.
No. In America, you can do a "write in" vote whereby you can vote for anyone you want. So the problem is with the voters. If you voted for Obama, then you're partly responsible for this. The problem is people who will only vote for parties that are expensively advertised.
While it is true that you can "write in" anyone you want, the reality of all voting means that the winner is (Generally) going to be the person who is most well known - and like it or not that means campaigning aka advertising.
So in practice, this doesn't get you anywhere.
What we need is a nationwide NOTA (None of the above) vote option, wherein if the NOTA vote gets a plurality, the race must re-occur with different candidates. Like in Brewsers Millions.
This is the best that normal people can understand... unless you trick them in to being smart.
Voters, thanks to mainstream media, understand the concept of 'voting off' or expressing whom they have the most dis-approval for.
Thus get voters to construct a ranking from least to most liked; which you can invert to get the most to least liked. IRV also has poor behavior in the process for selecting whom to remove. My personal solution for that is to remove 'winners' until all that's left is a single candidate; that is the candidate that failed to win any election possible in that round and the one to drop. Re-calculate until there are the target number of candidates left and you have the set of IRV plurality winners (I wasn't even aware of the term plurality until CGPGrey's wonderful series on voting brought up the methods of voting in Robert's Rules of Order).
It's not even true in general that you can write in anyone you want. Many jurisdictions require write-in candidates to register themselves, and write-ins with any other name or text are invalid ballots.
The thing I don't get about approval voting is when do you stop voting for your second choice? It seems like every vote with approval voting is a strategic vote, whereas with IRV you just always vote for your preferred candidates in order.
Yes, favorite betrayal is possible, but it requires a very specific set of circumstances, and the only gaming of the system is people throwing their top vote to the opponent, which is very risky and requires a freakish amount of insight into the race to know if the conditions of a spoiler are even possible.
To me, strategic voting seems much more likely with approval voting than it does with IRV, and it's that strategic voting that is maintaining the two party system. I think the possibility of a possible spoiler effect under IRV is small, and that its chances of actually allowing 3rd party victories are much higher, and thus worth the risk, especially because, to me, approval voting doesn't really remove the spoiler effect, but just delays it.
I like approval voting, but IRV seems like a better solution, overall.
Also, I disagree that approval voting is much easier to understand. IRV isn't significantly more complicated than approval voting, and neither are significantly more complicated the current plurality/FPTP system.
TL;DR - In my opinion, IRV's rewards outweigh its risks and IRV > approval voting > FPTP.
>The thing I don't get about approval voting is when do you stop voting for your second choice?
I actually think splitting parties into which ones you like or dislike is a far more natural process than ranking them. Especially when you start getting more variety.
That said, I tend to prefer Range voting, since it gives people the most flexibility to actually express their relative preferences.
>Yes, favorite betrayal is possible, but it requires a very specific set of circumstances
I don't think they're that uncommon circumstances. But more importantly, even the possibility of a spoiler is enough to make people think twice about putting their actual favourite first. It's nowhere near as bad as FPTP, but there's still some pressure to choose a popular party.
It's strategic voting under first past the post that maintaining the two-party system, not strategic voting in general.
In approval voting you are always best off voting your preference. The only thing you have to decide is your cutoff for how many people you want to approve. From what I've read, people are pretty good at that intuitively.
In particular, IRV satisfies the important "majority criteria," e.g. if the majority of people vote for a candidate, that candidate should win. Approval / range voting fail this criteria. See, again, Arrow's Theorem. http://archive.fairvote.org/monotonicity/.
Approval/Range voting fail the majority criteria in that they allow a candidate who is the second preference of 90% of people to beat a candidate who is the first preference of 51% of people. Is that necessarily a bad thing?
Your link also discusses the later-no-harm criteria for Approval/Range leading to strategic voting, but all the examples I've seen for this seem to talk about giving a marginally preferred candidate an advantage in the absence of any truly disliked candidates. I think in practice, people will be far more interested in keeping disliked candidates out than furthering their marginal preferences.
Meanwhile, IRV suffers from Favourite Betrayal, which is a much more obvious incentive for strategic voting IMO. (Your link about NP-completeness of strategy only talks about STV.)
In a range voting election, you'd have a lot of people who would bullet-vote for a particular candidate (100/100 points for candidate A). Then possibly lots of other people who would have to think about how people may be bullet-voting for those candidates, and then think about how they might distribute their points so as to ensure those candidates don't win.
If I love candidate B and C, kind of like D, and hate candidate A, but all of candidate A's supporters are bullet-voting, how should I vote? It's ridiculous.
It doesn't allow voters to express their preferences without strategic voting -- it's totally baked into the process. The range voting folks have come up with various metrics that say their system is the best, but completely ignore the most obvious reasons why its flawed.
For the record, though, I'd vastly prefer any system over the current plurality elections (including range voting).
>then think about how they might distribute their points
Just to be clear, you're not imagining people have to share their vote between parties are you? Range voting means you can give every party 100 if you want to.
>If I love candidate B and C, kind of like D, and hate candidate A, but all of candidate A's supporters are bullet-voting, how should I vote?
If you really hate A so badly that you think any one of B, C or D would be vastly better, then go ahead and give them all 100. If A not getting in is that important to you then your "strategic" vote is in fact, an accurate representation of your preferences.
In a range voting election, you'd have a lot of people who would bullet-vote for a particular candidate
www.electology.org/bullet-voting
> (100/100 points for candidate A).
Score Voting (aka Range Voting) does not limit the number of votes. That's WHY it's so resistant to tactical voting. If you give Ralph Nader a "perfect 10", you can still help Gore against Bush as strongly as you want. You could even strategize to give Gore a 10 and Bush a 0.
Agreeing with aninhumer, I don't think that the majority criteria is a desirable property of a voting system if it comes at the expense of more desirable properties like monotonicity. Even if nonmonotonicity is not strategically exploitable, accidentally falling into a losing region by gaining votes would be incredibly aggravating.
I would expect approval voting to reduce the polarization of politics and allow moderate candidates who are reasonably liked by everyone to enter political office. Rather than see our laws and policies flip-flop every 4-12 years due to one or the other party taking control, maybe we would actually have politicians focus on the mutual good of society rather than the parties' individual power.
That first link is written by Warren Smith, a Princeton math PhD who's the protagonist of William Poundstone's book Gaming the Vote, and arguably the world's foremost expert on voting systems.
I really like this idea for a few reasons, though I would begin by trying to pass it at state levels.
First, it is simple to implement. Aside from the special election in the case of NOTA getting a plurality, it requires no change to the existing voting system except for the addition of a NOTA option for each position being voted on in an election.
Second, it is very easy to understand. IRV, Approval, other schemes are not that difficult to pick up once you've seen an example, but just about everyone already has experience with None Of The Above selections, and often on ballot-like forms, no less.
Third, it encourages [the segment of non-voters who abstain from voting due to feeling that there is a lack of viable candidates] to make their positions known, resulting in a better understanding of the wishes of the public.
Fourth, due to the other reasons listed above, it is very hard to argue against. What good reasons are there to NOT have this? The only place I can see a strong argument taking hold against the adoption of this measure is that a special election is required if NOTA wins, and that's a non-trivial change to the system.
In order to see this get widely implemented, I would explore the idea of starting out with NOTA being non-binding. I do not know if this is a good idea. If it starts out "toothless" (in the sense that whichever candidate gets the most votes still gets in even if the candidate is outranked by NOTA), will the realization of the public that the plurality does not approve of any candidate provide enough pressure to update it to something more powerful once it's established? Does the risk of that not being the case outweigh the benefits we get from seeing just how little approval there is for the candidates selected for us before the voting starts?
We know that public pressure is one of the best tools that citizens have to rein in their governments. I believe that starting with a narrow wedge--implementing a non-binding NOTA option at state levels--makes it more likely to be adopted in a larger number of states than otherwise. Seeing in hard, official numbers how disappointed the public is with the choices they are continually offered should be enough to enable further action. Of course if there is a strong enough public will for it, the binding law is better to have from the start. It just seems to me that there won't be enough support for something like this until there's more widespread awareness of how abysmal the current situation is.
I agree with this. My strategy as of lately has been to just write "Libertarian" in the write-in box. I realize that it will have little impact as of now. But if enough people do it, news media will start reporting this. Potential liberty minded candidates may then see an opportunity.
The liberty movement is growing as demonstrated by the success of Ron Paul's campaign in 2008 vs 2012. It just takes time.
As far as I know, most jurisdictions require write-in candidates to officially register as such, and will count yours as an invalid ballot. Literally no one will see your "message" except for the one person counting write-in ballots.
The foundation for this is the War on Drugs, which many well-meaning citizens support. Only if those attitudes can be changed can we expect any change.
Most libertarians, and a healthy chunk of republicans really hate this nonsense. Enough that Republican opposition is explicitly called out in the article.
> I am not a lawyer, but I do have to wonder, how is 'civil forfeiture' as a whole compatible with the U.S. constitution
IANAL: Last I heard, the logic was that you, the owner, are not accused of anything. Your property is accused of being used in a criminal act. Your property is guilty until proven innocent, because it is not a person protected by the bill of rights.
The idea was to seize the assets of organized crime without having to completely prove they were committing a crime (which is hard). The road to hell is paved with good intentions. (Also, if your plan is to use the bill of rights against a prosecutor, you need a better plan.)
That demonstrates again why people should reject the argument of "if we don't do this, law enforcement would be hard" or "we'd do it only to the bad guys, don't worry". Because as soon as it's allowed to do this to the bad guys, it is amazing who becomes the bad guy when needed.
>Your property is accused of being used in a criminal act.
what happened to that case of the slave who tried to sue for his freedom, but his suit was rejected because he was property, and property couldn't sue?
So does this mean that I can sue the Federal Reserve and 'hold' their assets indefinitely until they prove they are not guilty? do I get to keep the interest generated while the case slowly goes through due process?
Due process isn't the problem. The seizure is sanctioned by a court and you can challenge it, so there's your due process.
The reason it's a total scam is that they're claiming it's a civil proceeding rather than a criminal one. The government is making an accusation of criminal wrongdoing and is ostensibly acting on behalf of the people rather than any government agency but somehow it isn't a criminal case. So then the government claims it doesn't have to prove its case beyond a reasonable doubt, they can just steal your stuff and leave you with the burden of suing to get it back.
>IANAL: Last I heard, the logic was that you, the owner, are not accused of anything. Your property is accused of being used in a criminal act. Your property is guilty until proven innocent, because it is not a person protected by the bill of rights.
This kind of twisting the meaning of explicit passages in the constitution etc, is only fit for a dictatorship and/or a nation of slaves. It means those documents are more or less jokes.
Second, the "property is "accussed"", really? How does that fit with the "nor be deprived of life, liberty, OR PROPERTY"?
The same obvious BS twisting I saw in justifying no gun control, by twisting the "militia" thing to mean anyone at anytime.
That this twisting was made by the higher judges with prestigious degrees, 20 medals and awards, and 40+ year career doesn't mean much.
Edit: In the case you posted, I think this excerpt from Justice Thomas' dissent sums it up nicely:
If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress' Article I powers – as expanded by the Necessary and Proper Clause – have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to "appropria[te] state police powers under the guise of regulating commerce."
There's a series of cases going way back. The first one had to do with the seizure of a vessel used by a Spanish Privateer (The Palmyra, 25 U.S. 12 Wheat. 1 1 (1827)). Although not particularity well reasoned -- it doesn't even analyze the constitutional issues -- it was unfortunately written by a very revered justice famous for the first treatise on American Constitutional law.
The concept was largely limited to the maritime and smuggling context for a fair amount of time, but was eventually extended beyond that in cases involving moonshine.
By the time the 20th century rolled around, there was this long line of cases. Justices, whether politically conservative or liberal, tend to be dispositionally conservative. Every time it's come up it's been reaffirmed largely on the basis of pure precedent, without any analysis from first principles.
Here's one of the most liberal justices in history (Brennan) discussing civil forfeiture:
At common law the value of an inanimate object directly or indirectly causing the accidental death of a [416 U.S. 663, 681] King's subject was forfeited to the Crown as a deodand.16 The origins of the deodand are traceable to Biblical17 and pre-Judeo-Christian practices, which reflected the view that the instrument of death was accused and that religious expiation was required. See O. Holmes, The Common Law, c. 1 (1881). The value of the instrument was forfeited to the King, in the belief that the King would provide the money for Masses to be said for the good of the dead man's soul, or insure that the deodand was put to charitable uses. 1 W. Blackstone, Commentaries.18 When application of the deodand to religious or eleemosynary purposes ceased, and the deodand became a source of Crown revenue, the institution was justified as a penalty for carelessness.
...
Decisions reaching the same conclusion have continued into this century. In Goldsmith-Grant Co. v. United States, 254 U.S. 505 (1921), it was held that the federal tax-fraud forfeiture statute did not deprive an innocent owner of his property in violation of the Fifth Amendment. There, the claimant was a conditional vendor of a taxicab that had been used in the removal and concealment of distilled spirits upon which the federal tax was unpaid. Although recognizing that arguments against the application of the statute to cover an innocent owner were not without force, the Court rejected them, saying:
"In breaches of revenue provisions some forms of property are facilities, and therefore it may be said, that Congress interposes the care and responsibility [416 U.S. 663, 686] of their owners in aid of the prohibitions of the law and its punitive provisions, by ascribing to the property a certain personality, a power of complicity and guilt in the wrong. In such case there is some analogy to the law of deodand by which a personal chattel that was the immediate cause of the death of any reasonable creature was forfeited. To the superstitious reason to which the rule was ascribed, Blackstone adds `that such misfortunes are in part owing to the negligence of the owner, and therefore he is properly punished by such forfeiture.' . . .
"But whether the reason for [the forfeiture] be artificial or real, it is too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced." Id., at 510-511.
Calero-Toledo v. Pearson Yacht Leasing Co. 416 U.S. 663 (1974)
One could be forgiven for thinking that he's reading a Scalia opinion instead of a Brennan opinion!
> whether the reason for [the forfeiture] be artificial or real, it is too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced.
Jesus... this from a supreme court justice, no less.
This is an excellent example of how systems comprised of humans become perverse over time.
Let's be honest, here. This is just highway banditry. If the same thing was reported in 1950s central america, people would shake their heads over what a much more advanced society the U.S. was.
It's because of the inherent "slipperiness" of language.
Trying to paraphrase a lot of Wittgenstein here, but basically words only have meaning inside of human constructs. Classic example: customer wants to pay you to create a database to manage customers. You ask: what's a customer? Customer says "Isn't it obvious? Just go use a dictionary"
But it's not obvious. Instead you need to have a relationship with the guy using the term. Over time, you arrive at a common understanding.
Or -- English ain't C.
What this means in systems of humans is that even very well defined terms can "drift" over time and from generation to generation. What we're seeing now in the U.S. is a nation that nowhere resembles being faithful to the social contract, our constitution. Yet if you start teasing apart why it got like that, you find a lot of little, somewhat reasonable re-interpretations of what various terms mean. Don't even get me started on the Commerce Clause.
It's not corruption. And it's not dumb people. It's just the natural drift of meaning, combined with each generation feeling like it's facing some sort of huge existential crisis.
It's the difference between Common Law (case law / precedent) as practised in many English speaking countries, and Civil Law (codified law), as practised in Europe:
I looked into this, as sometimes on Internet fora I saw Americans argue about the interpretations of certain parts of their Constitution (or maybe it was the Bill of Rights). I used to never really pay attention to such discussions (because they do not apply to me) but when I thought about it for a little, it puzzled me very much. I always learned that Law, as it is written isn't supposed to be open for interpretation! That's why it's law, and it's written down very clearly in almost computer-like language in the ... which is when I realized I didn't know the proper English word for "book of law" (I think it's "statute").
Of course it's not nearly quite as clear-cut as that. Many European law systems have partial case law and vice versa in the US. In fact both types of systems are growing towards each other. But it used to be quite a fundamental difference in how law used to be practiced, Common Law being from England, and Codified/Civil Law from Napoleon, inspired by the Romans.
Is there something like a 'civil forfeiture' law which actually allow them to do this? Here in Australia we have something called 'Anti-hoon laws' which states after three major traffic infringements, your car can be seized (and destroyed/crushed in some cases).
De jure, isn't it possible to recover your effects if you're not actually convicted? The process might be too complicated, but it might be possible enough to not infringe on this.
I guess the question is whether civil forfeiture meets the due process requirements.
In many civil rights cases, we get into the difficulty of processes (something might be de jure possible but de facto impossible/extremely hard to go through).
The main issue with trying to go after civil forfeiture in court is that the gov't could simply give you back your goods if you threaten to bring it to court, and you suddenly lose standing
It's also difficult because in a civil case you're not entitled to a state-funded attorney, so you're going to have to shell out a good chunk of change to challenge the case. Which, of course, you may not have as your assets were just seized. You're also facing the "preponderance of the evidence" civil burden rather than "beyond a reasonable doubt," which makes it more likely you'd lose in court.
there was recently a case in which Iowa (my state) seized ~$100K from two poker players passing through the state. (They got pulled over on a bullshit traffic stop). The state only offered them 90K back, but it cost them $30k in legal fees to fight it. Its just disgusting.
So, the state seizes your property over what's presumably illegal behavior on your part, and it is not considered a criminal case? Isn't civil law about disputes between individuals as opposed as individual vs the state? Should it be allowed for the police to bring up a civil lawsuit?
Perhaps today, that's true. Five years from now, civil trials, where one party is the government, might be used regularly as a way to circumvent the protections afforded criminal defendants.
For those that have the money to pursue a lawsuit for the principle of it. Most don't take the time or have the money, or the cost–benefit makes the lawsuit more expensive than the asset itself.
That's part of the reason the cops don't mess with rich people. There are consequences to doing so. They know the line on who they can or can't screw-over without stirring up trouble.
You'd need some very rich and or powerful people to be interested in this problem. Soros has taken a specific interest in the prison system in the US, when it comes to drug laws and punishment extent; maybe someone like that will pick this cause up.
You'd have to have the resources to challenge this on principle, which might be hard to come by if a lot of your money and possessions were recently seized. Furthermore, for asset forfeiture, police departments tend to prey on the weak in the first place, so they are less likely to challenge it - or will give up the challenge once they receive back a pittance from these thugs.
It's a common mistake to believe that due process has to be fair and just. In a civil asset forfeiture case, the owner of the property has the right to take part in the proceedings and contest the seizure. The owner is informed of this. And the owner can appeal the outcome of the proceedings. All this together constitutes due process, even if challenging the seizure costs more than the property in question is worth.
It's incompatible, entirely, with the Constitution.
The keyword these days is extra-legal. That's half of what the government does now, and it does not care that you know it, because there is nobody powerful enough to stop such a menacing monster. The collar is off.
Police abuses of civil asset forfeiture have been around longer than many HN readers have been alive. Here's an example of civil asset forfeiture abuse in 1991 (the practice extends back to at least 1985), which was the subject of congressional testimony in 1996: https://www.aclu.org/technology-and-liberty/statement-rep-he...
There's even an organization devoted to ending civil asset forfeiture abuses: http://fear.org/
But after roughly three decades of this practice, and over two decades of well-documented abuses, nothing has changed. Why this remains the case, even though every politician and judge is aware or should be aware of these abuses, is left as an exercise for the reader.
"and over two decades of well-documented abuses, nothing has changed."
Fourteen years ago in Utah we overwhelmingly passed a citizens' ballot initiative to change the law put an end to seizure abuses. The standards of proof were raised and police were prohibited from using proceeds for themselves; all proceeds were to be passed to the public schools fund.
The state auditor published a report every year about all the county attorneys that were violating the law and the millions they were keeping and the illegal diversion of funds to the police and the total failure to turn over proceeds to the schools. All the major counties' police forces and prosecutors -- from both political parties -- were openly violating the law and making personal use of the seizures -- technically they were taking stolen property.
The new standards of proof were ignored by the courts. The two state attorneys general -- two from both parties -- deliberately ignored the reports that the state auditor was publishing. The press ignored the reports, too. The public re-elected the district attorneys involved.
Eventually the state legislature simply reversed the citizen initiative and restored the old civil forfeiture rules.
This is a bigger issue than just civil asset forfeiture. This kind of conflict of interest encompasses ticket "quotas" (technically disallowed but tacitly followed) or when someone with an out-of-state license plate is targeted on the assumption that they're less likely to fight the ticket. I've heard of cops bragging about the tickets they write and how they're putting money in the city's coffer.
But I'm at a loss what to do about it. Is there a way to disassociate enforcement from penalizing?
You have to make it so that the money doesn't go back into the political unit's general funds nor a fund where the enforcing agency gets access to it directly or indirectly. Perhaps the money goes to a pool of charities, or is earmarked to remedy the victims of crimes, or is simply returned to the Federal Reserve (though that might just circulate back to the banks).
The idea is to remove the monetary incentives from enforcement actions.
That's exactly how enforcement of federal crimes works. The money goes to the Crime Victims Fund [0], which is then disbursed to services that support the victims of crime. It's a remarkably well-run federal program.
> Is there a way to disassociate enforcement from penalizing?
You could just not give the government the revenue. If you get a traffic ticket the fine is paid to your choice of any 501(c)(3) nonprofit organization.
In theory you could still have police issuing tickets because they want to increase donations to the Red Cross or something, but the cops have no control over which organization gets the money, and they certainly don't get to ride around in toys the money bought.
I initially liked that concept, but the soon as someone started being a jerk and picked a 503(c) that represented something distasteful, the police would have political ammunition to use.
The trick is that choice must somehow be removed from the equation. I'm starting to like the federal reserve concept more since they initiate the circulation of money in the first place, they would be the most neutral party and it would be economically neutral at the national level (though it would suck money out of local economies... hmmm...).
> I initially liked that concept, but the soon as someone started being a jerk and picked a 503(c) that represented something distasteful, the police would have political ammunition to use.
I don't really see how people choosing to donate the money to particular organizations should be any more controversial than allowing the organizations to be tax exempt in the first place.
And using the money for a governmental purpose generally is a bad idea because it causes the people responsible for making and enforcing the laws to be the ones who benefit from issuing unjustified penalties. Giving it to the federal reserve is no different; it will cause them to soak up more government paper which allows Congress to spend more money which Congress likes and thereby provides them with the perverse incentive to pass bad laws.
An interesting alternative would be to dedicate the money to something that would otherwise be chronically under-funded, like the public defender's office. Which you could then sell as criminals funding the cost of their own defense.
The federal reserve would then have to create new money to replace what was destroyed or it would cause deflation (which is very bad), so what you're suggesting is equivalent to giving the money to the federal reserve.
I'd much rather the punishment was in the form of time (community service, etc); a monetary fine disproportionately punishes the poor over the rich, but losing four Saturdays stings for just about everybody.
> But I'm at a loss what to do about it. Is there a way to disassociate enforcement from penalizing?
One way is jury nullification. If a small fraction of the jury pool refused to let the state prosecute these cases, that could be an effective check on certain abuses.
One of the problems here is that these confiscations are done in civil trials, where the right to a jury trial is not always guaranteed (depending on the state).
And even in those states where it is guaranteed, it's often a poor choice for the person whose property has been stolen, since jury trials add significant time and expense.
> Is there a way to disassociate enforcement from penalizing?
Do a Google search for "predatory agency." It's an idea that's been kicking around the law+econ community for 20+ years. Think the GAO on steroids, and at the state level too.
It says 'the value of assets seized has ballooned to $4.3 billion in the 2012 fiscal year' which means that, spread across every American, is an extra $1400 tax which is off the books. For perspective, on the highest minimum wage of $9.32 per hour, that's around 150 hours of work. THAT'S AN EFFECTIVE MONTH OF 40 HOUR WORK WEEKS TO AN ILLEGITIMATE, OFF THE BOOKS, EFFECTIVELY UNREGULATED, AND FOR PROFIT TAX.
Disgusted should not even begin to describe the mood of the American people.
EDIT: My math is bad and I feel bad. Its ~$14 a year which is still an hour but oh my, that was an order of a magnitude error!
You can't compare an average 'tax' against the lowest working wage. So I did some rough figuring based on annual income. Assuming forfeiture is spread across all income levels evenly, it would be better to compare against mean income. Looks like (based on 2004 numbers) mean household income was 60,528, mean household size 2.57, for a mean income of 23230 per person. That puts forfeiture ballpark 6%, assuming it all comes from on-the-books assets. So for people working one full time job, about 3 weeks equivalently. Actually pretty close to what you got, I'm sad to see.
Wouldn't want to be living in the us right now, based on those numbers. That sounds like it adds up to a whole lot of corruption.
IANAL, but in Commonwealth countries this seems to be mitigated by the use of consolidated revenue funds[0].
It's explicit in s81[1] and 83[2] of the Australian Constitution that all revenues must be deposited into the CRF and you then need a law to appropriate the revenue elsewhere. Similarly, state law seems to point to revenue from civil seizure is paid into treasury.[3]
I always feel like an asshole when I say this, but... Much of the constitution and guiding American legal principles (as much as they diverge from Common Law at the time) were built on distrust of The Crown. And since then they've managed to fuck it up spectacularly. Elected public prosecutors instead of something like the Crown Prosecution Service. Insane semi-militarised police instead of a force whose ethos continues to be "policing by consent" (http://en.m.wikipedia.org/wiki/Peelian_Principles). ANZAC and the UK are far from perfect, but there's a bitter irony that a country built to escape oppression from the state now feels it more keenly than the other countries born of that state.
Yes, this is the ultimate solution. Fines and forfeitures should never go to the local government responsible for crafting them, or worse, directly to the police department enforcing them.
Remove that incentive, and suddenly the darker motive goes away. The officials can no longer emotionally rationalize excessive fines, misplaced priorities on seizure rather than crime prevention, or even outright theft. The only thing that remains is a desire to actually do the job of protecting the public.
We should stop saying seize. It's "steal". It is outright theft.
Even if by some chance the people they were taking it from were doing something wrong, it is still theft because it is done as them being judge, jury and executioner.
It's great the media at least has woken up to this. So they crank out an article every month or so, basically saying the same thing over again. But even the media isn't willing to fully recognize how much the system has turned, how stacked the deck, how all-seeing, and highly discriminatory, lady justice has now become. "The practice of civil forfeiture has come under fire in recent months..." just comes off as a meek response to the truth on the ground.
Is the system so overrun by spineless pricks there's literally no one left to inject some sanity? No prosecutor who can't understand the irony of sizing up citizens like a thug on a smash-and-grab (go for the flat screens!) Not a soul left in the justice department with enough common decency to make a career out of killing this?
The legislators aren't willing to kill the goose which lays the golden eggs. Is it up to referendums? Who is organizing the offense, and what is the game plan? Where is the coordinated counter-attack? Because without one it's not going to curtail this. I don't think you can simply shame these departments (police and prosecutor) into taking the handcuffs off their belts and slapping them on their own wrists where they apparently belong.
Rapidly expanding increases in quasi-legalized crime by the State.
A $17 trillion economy, with $200 trillion in assets, and all private citizens are now guilty until proven innocent. It's Christmas day for the gangsters in government.
Be careful he doesn't have the laptop you emailed him from seized.
More seriously, although your anger is laudable, complaining to criminals is rarely productive. In this case complaining to whoever can put a stop to this practice is what's really needed. I'm not a lawyer, but stopping it seems unlikely to happen unless it's brought to the attention of the Supreme Court. Pressure in that direction would likely be more fruitful.
What is the likely outcome if a victim of civil forfeiture were to file a lawsuit against the law enforcement body for restitution, on constitutional grounds? Is that legally possible, or is there a precedent for this?
Seems like the ACLU would be all over funding such a suit and taking it as far as necessary.
The likely outcome is that it costs you more than the property which is at stake. It's not that you won't win, it's that it's too expensive to even try!
TFA mentions seizing entire houses? I assume those cases do get filed and won since there's enough at stake. But there's a reason the cops "go for the flat screens" it's a calculated cost/benefit designed to make it just expensive enough to not be worth fighting.
This is why we need large punitive damages awards, but my guess is the law is written specifically to preclude that.
But surely that's built into the structure of the legal system? People I do business with don't routinely defraud me of amounts too small to sue over: why can't the same legal reasoning apply to these cases?
One reason people (and particularly businesses) tend to not defraud you over amounts too small to sue over is that the value of continued business and/or word of mouth is larger than the one-time payout of defrauding you. This effect is obviously diminished when dealing with the state, since the difference in physical power between the two parties in the transaction is immense, and the idea of you ceasing to do business with the state is mostly nonsensical.
All I mean is that the cost of moving to the jurisdiction of another government is generally massive compared to the cost of switching business partners in most situations.
And when all the state you can move to are like this to some degree or other? Moving countries is not simple and certainly out of reach of the majority of the people these laws impact.
Do people actually behave along these lines? Vast majority of people in most places live and die within the same region they were born in. Most people who move countries do so to follow jobs around or get new jobs. The number of people who select countries (that I've heard, at least) for political reasons is negligible. Tho I could see the argument in the extreme case. Cuba and Iraq don't exactly have sizable numbers of immigrants, with their fairly poor political reputations.
States which are less likely to rob their citizens should see an influx of people and businesses. But then again, most people just assume it won't happen to them. The people that are actively managing to reduce this particular risk may not be the peeps you actually want moving in.
So I guess in a perverse way there's a disincentive to fix the problem in just certain jurisdictions.
They don't do that to you because they're concerned for their reputations, for the most part.
I have seen business people that operate like that however, with little regard for their reputation. They screw other people over a lot, and are willing to run the calculation on the cost to sue them vs what the property or contract or whatever is worth.
The challenge here is that people fighting this have to be convinced to pay higher taxes rather than "Stick it to the criminals." When you ask people to pay for higher principles, sometimes they balk. Of course we know about the road to hell, and today it's a drug dealer's car, and tomorrow it's the opposition party's mayoral candidate.
> In an interview, Mr. McMurtry acknowledged that he exercises a great deal of discretion. “The first offense, if it’s not anything too serious, we’ll come up with a dollar amount, depending on the value of the car and the seriousness of the offense,” he said. “I try to come up with a dollar amount that’s not so high that they can’t afford it, but not so low that it doesn’t have an impact. If it’s a second offense, they don’t get it back.”
What a fucking asshole. That guy is a thug stealing from the public, and he doesn't even try to hide it. He even admits that he's using the practice to impose fines without due process, in direct violation of the constitution.
He's a criminal, and should be treated as such.
> Prosecutors estimated that between 50 to 80 percent of the cars seized were driven by someone other than the owner, which sometimes means a parent or grandparent loses their car.
They're even aware that they're stealing from innocent people, and that they'd likely never get any sort of seizure upheld through having to actually file charges.
Criminals, all of them.