One law enforcement agent told me he never uses the criminal forfeiture process because the civil asset forfeiture process is much easier. You don’t have to convict the owner of a crime.
How can government do that, you ask? Well, to get around constitutional issues, lawmakers at both the state and federal level have created a dual system whereby the assets of an individual are named in a case, not the individual. Our state also has a low threshold to show that the property may have been used in illegal activity. Moreover, the owner of the seized property is presumed guilty until he or she can prove their innocence in obtaining the property legitimately. Many owners do not even try to recover their assets because the cost of obtaining legal representation may exceed the value of the confiscated property.
If government officials were omniscient and could never make mistakes, this would not be a problem. One official could be lawgiver, king and judge. Criminals could be stopped immediately and efficiently, and no innocent citizens would be punished.
But like citizens, government officials are not angels, so our constitution limits their power and separates it. It requires that they pursue justice justly, knowing that their power can, wittingly or unwittingly, treat innocent people like criminals.
Our constitutional restraints on government power are like fences; they keep the honest people honest. Where our fences of presumed innocence and due process have been torn down, we should rebuild them.
Wednesday, December 24, 2014
Simpson on civil forfeiture: Where fences of presumed innocence and due process have been torn down, we should rebuild them
State Rep. David Simpson had a column in the Dallas News this week (Dec. 22) decrying civil asset forfeiture. His article concluded: