Rethinking Civil Asset Forfeiture
Have we discussed this matter on BU? Here is today’s Barbados Advocate Editorial – Barbados Underground
As appears to be customary in these parts, what Trinidadians are wont to call a “vaps” sometimes takes hold of officialdom and we are assured that the existing unsatisfactory state of affairs in a particular context will soon be at an end.
Breathalyzer testing for drunk driving; the enactment of integrity legislation for public officials to restrain corruption; the passing of essential services legislation to minimize public disruption caused by industrial action; and enhancement of the regulatory control of the private public service transportation sector. In all these respects and others too, we have been notified time and again of an imminent change to the status quo.
The latest phenomenon to be added to this catalogue of promises is the enactment of civil asset forfeiture legislation. According to a report in Wednesday’s press –“ The days of criminals living openly lavish lifestyles should be coming to an end soon if the island’s top judge has his way”.
This extract is misleading in at least two ways. First, the proposed legislation is likely to encompass not criminals only, but any individual whose lifestyle does not appear to comport with his or her apparent income or other means.
Second, the notion of civil asset forfeiture does not lie within the exclusive jurisdiction of the Chief Justice but is, rather, a matter for Parliament that will be responsible for enacting the relevant legislation.
Apart from the legislative process, the entire idea will have to be sold to the public, given its nature that is highly invasive of individual rights. While the initiative may indeed be effective to take the profit out of crime where the forfeited gains are so derived, there need not be the commission of any criminal offence at all, and the forfeiture of an asset may occur without the need for the prosecution to establish beyond any reasonable doubt that that ownership of that asset was obtained through criminal activity. A mere suspicion suffices.
Clearly, such a regime may lead to some horror stories as is recounted in one case from Arizona, USA, that employs a similar scheme. In Arizona, civil asset forfeiture allows police to seize — and then keep or sell — any property they allege is involved in a crime. Owners need not ever be charged with or convicted of a crime for their cash, cars, or even real estate to be taken away permanently by the state.
In this case, Pinal County law enforcement used this scheme against Rhonda Cox, an innocent county resident, to seize and keep her used truck. In order to keep her truck, the state didn’t have to prove that she did anything wrong – let alone criminal.
Cox had spent months seeking the return of her used pickup truck from the Pinal County attorney. The truck had originally been seized by sheriff deputies because her 20-year-old son borrowed it one night and replaced the hood and cover with stolen parts. Cox had no connection to the theft and didn’t know about it until the deputies told her they had arrested her son. Although she owned the truck and was innocent of the crime, the deputies refused to return her property.
According to the ACLU, “Ultimately, protecting innocent property owners from overreaching law enforcement requires the abolition of civil forfeiture altogether.”
The scheme does have its supporters, however. Writes one legal scholar, “forfeiture undeniably provides both a deterrent against crime and a measure of punishment for the criminal. Many criminals fear the loss of their vacation homes, fancy cars, businesses and bloated bank accounts far more than the prospect of a jail sentence. In fact, in many cases, prosecution and incarceration are not needed to achieve the ends of justice.”
We should discuss this further.