Asset forfeiture

February 20, 2018 The Noffs Team Comments

Imagine you’re a US citizen, travelling across state lines with a large amount of cash. You’re not doing anything wrong - you’ve seen an ad for a second-hand car in another state and are making your way there with the cash to purchase it. On the way the police pull you over. You have nothing to hide, so you are slightly confused yet ultimately confident it’s just a routine traffic stop. Yet they are suspicious of the large amount of cash. You tell them what it’s for, but they instead accuse you of trafficking drugs, due to the large amount of cash and the fact that you happen to be in close proximity to the Mexican border. You tell them repeatedly that you have no drugs on you and the cash is for legitimate purchase of a car. The police finally let you go, but not before confiscating more than half your money in the name of “forfeiture”, a policy implemented as part of the war on drugs.

This is what happened to Rudy Ramirez [1]. What followed next was a lengthy court process involving him having to pay 10% of the value of his money seized simply to bring his case to court, and find a lawyer willing to take on a legal concept most lawyers run from - civil asset forfeiture.

Asset forfeiture was introduced in the US as part of the war on drugs in 1970 [2]. It was originally designed to prevent criminals using modes of transport - like cars and boats - to transport drugs, but was expanded in 1980 to include the proceeds of actual crimes, ie cash.

There are two types of asset forfeiture - civil and criminal. Criminal asset forfeiture is triggered only after a person is found guilty of an offence, for example drug trafficking or money laundering [3]. Civil asset forfeiture is much more controversial. An individual does not need to have been found guilty or even charged with an offence; rather, the property involved in the alleged offence is treated as the criminal, and is confiscated until the owner can prove in court that it wasn’t the result of any criminal activity [4]. This turns the principle of “innocent until proven guilty” entirely on its head.

And whether or not the person may actually be innocent doesn’t really matter. Unlike in criminal cases, property owners seeking to bring their case to court under civil forfeiture laws are not guaranteed legal representation and must hire a lawyer or file a claim. If they lose, which is a likely outcome in many cases, their property is automatically and permanently forfeited, and they must pay court costs. Compounding this is the fact that a provision known as “equitable sharing” means local law enforcement receives a percentage of the profits from assets if they request federal help with seizing them [5], so there is a monetary incentive for enforcing it. As a result, there is a high potential for abuse of process [6].   

Since 2007, the US Drug Enforcement Administration (DEA) has seized $3.2 billion in cash without filing charges, and with no judicial oversight [7], and often with the help of local authorities taking advantage of equitable sharing. Eric Holder, attorney-general for the Obama Administration, banned equitable sharing, however current Attorney-General Jeff Sessions has revived it. Not only does this increase the potential for many more unjust cases of assets being seized from innocent civilians, it allows state and local law enforcement to circumvent laws in states that require a criminal conviction before forfeiture, if they get federal authorities involved [8].

Rudy Ramirez’s case occurred back in 2000, but a more recent case in 2016 involved a man called Eh Wah, who manages a Burmese rock band and was heading home to Texas from a five-month tour across the US. His band had also raised over $50,000 from the tour for a number of charities. He was pulled over by police in Oklahoma, ostensibly for a broken tail light. A drug dog allegedly “alerted” to Eh Wah’s car and it was searched. The police found the donations and seized them, alleging they were drug proceeds. Eh Wah was arrested and interrogated for hours, and although police eventually let him go, they kept the money [9]. What’s worse, within a month, the County District Attorney filed a civil forfeiture action to permanently retain all of it.

And it hasn’t just been an issue in the US. Robert Moloney is from a small town in Victoria, Australia. He has lived there all his life, in a house he built himself. Eight years ago however, he and his children were left homeless after their house was seized under Victoria’s asset forfeiture laws.

A bit of background - The Victorian Confiscation Act was introduced in 1997 to replace a previous, less effective Act. it broadened the powers of police and the DPP to target profit-motivated crime and gave them the power to seize proceeds and instruments of crime. The result includes $45 million seized by the Victorian government between 2012 and 2015. This is up from $2.6million between 1999 and 2001 [10].

Mr Moloney had been growing cannabis for years in his backyard. It was a large amount, but only for personal use and there was never any indication that he was dealing or trafficking it [11]. Aside from this, the community knew he was a cannabis user and didn’t appear to have a problem with it. Despite this, the Victorian Office of Public Prosecutions (OPP) made an order to seize his property under state asset forfeiture laws, on the charges that he was growing a commercial quantity of cannabis, and trafficking it.

During the lengthy court process, the trafficking charges were dropped due to lack of evidence, yet Mr Moloney pleaded guilty to cultivating a commercial quantity of cannabis. He had told police he was a heavy user and let his plant grow wild, and the prosecutor acknowledged that the case “was not a definite proceeds of crime case”, owing to the lack of any evidence of commerciality [12]. However, because Mr Moloney had pleaded guilty to possessing a commercial quantity of cannabis, his property was automatically forfeited under the law. His lawyer has argued that the blanket nature of asset forfeiture laws meant no discretion was applied to Mr Moloney’s case where there should have been; he is a small-time user of cannabis, not a career criminal, and his family has been negatively impacted by the seizure of his house.

These are just a few examples among many of the serious consequences for innocent individuals who have been wrongly implicated in asset forfeiture laws. Whilst the intention of these laws is to deprive criminals of unlawfully acquired property in such a way that it may deter them from offending [13], the cases of Rudy Ramirez, Eh Wah, Robert Moloney and others [see here: 14] indicate that the laws often don’t target the people they were intended for.

So, why is asset forfeiture so readily used by governments and law enforcement? One of the strongest motives appears to be financial - law enforcement benefits directly from forfeited property, particularly under the provision of equitable sharing [15]. This becomes an especially attractive strategy when local policing budgets are tight  [16]. Governments also benefit from asset forfeiture, if the $45 million seized by the Victorian government over a three-year period is anything to go by. Considering all this, we might ask ourselves, how can the voting public accept such laws? Investigations over the way civil forfeiture has been applied has lead to an increased public outcry, however in recent years - particularly since the financial crisis of 2008 - there has been a spike in use of forfeiture laws [17]. Up until now though, US politicians haven’t made it much of an election issue, and most Americans have no idea what it actually is, let alone how it repeatedly violates the rights of innocent civilians [18].

However, when the collateral damage is serious enough that people lose their homes and livelihoods, how can governments and law enforcement justify it? If we consider it within the context of the war on drugs, the fear that has been stoked about drugs and drug use has enabled police and the criminal justice system to continue targeting people with the laws, regardless of whether they are guilty or not, and gives great power to those individuals and bodies perpetuating the war. It’s the reason why the DEA was able to do what it did to Rudy Ramirez, and why Donald Trump can be elected on a platform of expanding forfeiture laws [19]. It’s also the reason why, in Australia, an office of public prosecution can seize the modest property of a poor man with no ties to organised crime.

As long as the war on drugs is kept on life support, civil asset forfeiture is just one of numerous ways that innocent lives are caught in the crossfire.
























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