Civil forfeiture still requires due process - it is just conducted under civil court rules rather than criminal court. It is no more unconstitutional than the fact that OJ was acquitted of criminal charges, but convicted of wrongful death in a civil suit. Here's a bit of irony for you: before Oregon gutted our civil forfeiture law, a high percentage of the civil trials ended with the defendant bailing out and not contesting the suit.
As I recall, government abused forfeiture by grabbing assets at the time of arrest, long before any trial. The only way you could get them back after you were found innocent was to hire a lawyer and take the government to trial, which took a couple of years. If the asset was your business, well you were out of business. If there was no trial because your arrest was trivial, you still had to do the same for a couple of years to retrieve your cash and assets. So the cops would stop a black guy in a nice car for not using his indicator and confiscate cash, watch, phone, and anything else expensive. It wasn't cost-effective for him to get a lawyer, especially if he was from far away. (Cops looked for out-of-state license plates.) This isn't in your 3 categories.
Seems counter-intuitive for government to be conducting action under civil court ("preponderance of evidence") rules. The whole point of civil court is for a party who believes they have been wronged to obtain satisfaction for that wrong. In what way has the government been wronged in these civil forfeiture situations? Seems the government shouldn't have any standing to pursue civil action unless they have been directly defrauded.
Government's "standing" isn't as direct as you'd think. http://www.foodsafetynews.com/2015/04/u-s-government-sues-wholesome-soy-after-listeria-outbreak/
OK, so the government is responsible for ensuring the safety of the populace, and that lawsuit falls completely within that purview. Makes sense. I should have clarified the difference between suits intended to stop am action versus suits intended to recover damages. If individuals or corporations suffer monetary damages from a criminal's activities, the wronged party has standing to sure for recovery, not the government. They should only have standing if the public as a whole is being wronged.
It seems the law has forfeiture provisions that are intended to allow the government to disrupt criminal enterprise. Those give it standing. At issue is the government can seize assets, send you a notice, and you have to prove your innocence to get them back. Guilty until proven innocent. Like with the IRS. That's the part that seems unconstitutional. The government can confiscate property via eminent domain, too. That's actually in the constitution. I don't see how that really applies here.
Which differs from what OMG was claiming, which I was contesting. OMG claims that civil forfeiture follows civil court due process. Asset seizure prior to completion of due process is unconstitutional. Furthermore, I disagree with the notion that said government action should not be subject to the more stringent requirements of criminal court. Long story short, I'm agreeing with you. Why are you trying to argue with me?
I'm not arguing with you. You're asking about government standing. I gave you my best understanding of how it has standing. I know the RICO statues extend standing to the government for civil lawsuits. SImilar in scope.
http://endforfeiture.com/ What is Civil Forfeiture? Civil forfeiture—a process by which the government can take and sell your property without ever convicting, or even charging, you with a crime—is one of the greatest threats to property rights in the nation today. Civil forfeiture cases proceed under the legal fiction that cash, cars, or homes can be “guilty”—leading to such bizarre case names as United States v. 434 Main Street, Tewksbury, Mass. But because these cases are technically civil actions, property owners receive few if any of the protections that criminal defendants enjoy. To make matters worse, when law-enforcement agencies take and sell your property, they frequently get to keep all the proceeds for their own use. This gives agencies a direct financial incentive to “police for profit” by seizing and forfeiting as much property as possible.
I understand the philosophical argument - here's the pragmatic rejoinder. People rob banks because they keep money in banks. They sell drugs because it is seen as a get-rich-quick scheme. Most "white collar" crime is nothing but pathological greed. If crime didn't pay, you would have a lot less of it. Civil forfeiture is not a magic cure all. Like all police activity it needs to be monitored to protect against abuse. It also works. It is no random accident that after Oregon weakened their CF law the number of meth labs in the state rose dramatically. The problem got so bad, they instituted new regulations on the sale of over-the-counter cold meds. In other words, we went from a system that targeted the bad guys to one that harassed Joe average citizen.
So what's the problem with requiring the government sue the person before taking the assets? Or to make asset forfeiture part of the remedy in a lawsuit, or as part of the criminal penalty if indicted and convicted? If the person moves the assets to hide them, that would be criminal. Or allowing the police to seize property for 72 hours during arrest and a judge would have to agree it's evidence for the trial.
Asset seizure as part of a criminal court sentence does occur - but in many states it has its own loop-hole that is subject to abuse. In a civil forfeiture, the state targets a specific asset. (eg a bank account with $x amount in it). In a criminal case, the judge can often order "restitution" in any amount he pleases. You made $100K dealing drugs? Tough - your restitution is $1 Million to cover the cost of investigation and prosecution. If you live in one of those states, the civil forfeiture procedure can actually grant you more legal protection! As I said at the beginning - it is more complicated than people often think. The alternative would be for the Feds to impose a single standard that all states must follow. I'm guessing that would offend your political sensibilities as well.
Federal laws and rules trump the states, as long as their constitutional. The constitution (mostly) trumps all. So if it's the feds telling the states what they're doing is unconstitutional, I don't have a problem with it.
