Doug Berman at Sentencing Law and Policy threw me for a loop with this post. Doug is a self-proclaimed fan of alternatives to incarceration. Me too! But that doesn’t mean any alternative is a good alternative.
Doug, on the other hand, thinks this proposed Kentucky statute is a good thing.
The proposed sex offender law would work much like those already on the books for taking the property of convicted drug dealers. “If they use an asset in a crime they run the risk of forfeiting their property,” Kerr said. Under the bill, officials would also be able to take the sex offender’s home, or other property, if that is where the sex crime took place.
The notion being sold is that the cost of imprisoning sex offenders (which may well be even higher in Kentucky if sheep could talk) is too high, so it would be better to punish them by forfeiting their assets than making them a public charge.
Under the bill, property would be seized by law enforcement, held and then sold. The funds would go to police and prosecutors, minus any liens on the property, such as car loans. “This will help prosecutors by giving them additional funds to prosecute the offenders,” said Kerr. Kenton County Commonwealth’s Attorney Rob Sanders, who, according to Simpson, requested the bill, said that under the bill 15 percent of the money that comes from sex offenders’ confiscated property would be earmarked for prosecutors, who could use the funds for expert witnesses, forensic investigations and the like. Law enforcement agencies investigating such crimes would collect about 85 percent of the money brought in from sex offenders’ seized assets.
Incarceration, the false god of security, is being called into question because some politicians are finally beginning to recognize that its cost exceeds its continued marketability to the public. This isn’t news. What is news will the newly discovered ways to fix the problem, with asset forfeiture rearing its ugly head.
Why is this bad. This requires a list, so here goes:
1. It will not be a substitute for incarceration. It may start out with that intent, but no one is going to be the fellow who stands up in public and says, let all the sex offenders out of jail to rape your children. Then we’ll have both punishments available, and both will most assuredly be used, because asset forfeiture brings in money and they still get to imprison the sex offenders.
2. The funds will be used for prosecution and law enforcement benefit. History teaches us all too well that when money does toward the cops budget, they suddenly find religion. This provides police and prosecutors with a strong incentive to overreach, to come up with arguments to capture assets bearing no relationship to any crime. How so? For example, the defendant was sitting in his home when he used the computer, therefore his home is an instrumentality of the crime. And he pays the mortgage for that home from his savings account, so the savings account is the instrumentality. It goes on.
3. The impact is not limited to the sex offender. What of the offenders wife and children? Let’s assume that you couldn’t care less about a sex offender, and have no problem with taking everything he’s ever had from him. Does his innocent wife and children get thrown out on the street because of what he did?
4. The assets are seized before conviction. The assets are used to retain counsel to fight the charge, but if they are seized pre-conviction, in order to preserve them for forfeiture, then the defendant will lose the ability to retain counsel of choice. This has always been the catch-22 of asset forfeiture, glorifying the post hoc ergo propter hoc school of prosecution.
5. Sliding down the slope. Once criminal punishment is disconnected from its legitimate purpose, there is no rational starting or stopping point. Asset forfeiture, based upon a legal fiction that the res (“thing”) offends the sovereign, only makes sense if it is the proceeds of crime. But there are no proceeds when it comes to sex offenders. Therefore, the asset forfeiture would be based upon the “instrumentality” approach, which opens the door to widespread seizure without any legitimate sentencing purpose to be gained. It is, from the defendant’s standpoint, purely punitive. From the government’s standpoint, it is pure gravy.
6. Another situation rife with potential for corruption. Cops are sitting on a sex offender, and now have the power to seize all his assets, a purely financial impact. What might they suggest to this miscreant as an alternative to justice? Does anybody want to bet that it will dawn on a cop at some point (likely very early) and then spread like wildfire that these perps will happily fork over some very big bucks to avoid losing everything? The opportunity for graft in this idea is huge, and history again teaches that when the opportunity for corruption is present, someone will seize it. A lot of seizures going on here.
This is just a horrible idea, and one if accepted that is likely to spread across offenses, while the nature and scope of criminal offenses itself continues to expand at an ever-increasing rate. The power that this will give government to wreak havoc over people will be shocking, and the negative by-products are overwhelming.
I’m with Doc Berman in his quest to find viable alternatives to incarceration, but this just isn’t a good one. I’m still a little shocked that Doug would consider it, no less support it.
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
As long as you’re staging this horrible parade, how about the parent that molests his own children? What then? The sheriff comes in and takes the house away from the kids so he can buy two new police cars?
I still can’t believe forfeiture is constitutional…and that the people doing it haven’t been attacked by angry mobs…
The Spinning of The Pew Report
The Pew report has been the subject of intense interest around the blawgosphere.
The Spinning of The Pew Report
The Pew report has been the subject of intense interest around the blawgosphere.
I actually have wondered about the constitutionality of forfeiture statutes, but I’ve thought about the propriety of framing the argument as a 6th Amendment right to counsel claim rather than a 5th Amendment due process/takings claim.
In essence, it would take Scott’s argument #4 above, and contend that seizing the assets before conviction may prevent many defendants from their counsel of choice, and may force many to take public defender counsel.
While a truly indigent defendant does not have a right to counsel of choice, a defendant whose indigence is manufactured by the government by seizing property without any process by virtue of charging them with a crime is truly deprived of their constitutional right to choice of counsel.
Of course, only those defendants who are convicted will be able to avail themselves of this challenge. Unfortunately, by then, the government will have proved a significant part of their prima facie case for seizure, and will be able to justify their pre-conviction seizure by noting that these ill-gotten proceeds would otherwise have been used.
Sorry for the tangent, but this is a thought I’ve been mulling and was curious about anyone’s thoughts.
Appreciate the thoughts. Thanks.
SCOTT: Think about this issue this way: If we start now to favor more property-deprivation punishments over liberty-deprivation punishments, criminals with relatively more property (i.e., rich criminal) will likely be subject to relatively more punishment.
I sincerely believe that, because we now punish mostly through liberty-deprivation punishments, it is the poor who disproportionately bear the brunt of our punishment systems.
Doug,
There are two forms of property deprivation, asset forfeiture and fines. The former usually occurs independent of conviction, prior to conviction and in addition to liberty deprivation. The latter occurs after conviction, based upon conviction and may or may not be in addition to liberty deprivation.
If the point is that the wealthy should be able to buy their way out of jail, which strikes me as a potentially highly racist approach, the poor will still bear the brunt of liberty deprivation.
If the approach was fine or incarceration, then this discussion would go a different direction. But asset forfeiture is not a substitute for fines or imprisonment. It has always proven to be too potent a weapon for the government and caused great detriment to defendants without any relative benefit in terms of reducing incarceration.
So if we want to trade off liberty and property, let’s talk fines rather than asset forfeiture.
Two quick replies:
1. The wealthy already buy their way out of jail though having better lawyers and better ways to encourage the legal system not to put them in prison.
2. Since nobody wants to talk about fines (except in Europe) I want to start the conversation in terms of asset forfeiture. And in the computer crime arena, this seems to have great potential IF the forfeiture is done right — e.g., all pervs who do dirty illegal stuff with computers should have their computers taken away and given to inner-city schools that need computers.
1. The wealthy already buy their way out of jail though having better lawyers and better ways to encourage the legal system not to put them in prison.
So-so. Tell that to Martha or Dennis. There is truth to this, but at least they come by it honestly. Buying their way out with assets in lieu of prison (which does happen from time to time) as a direct quid pro quo is just too cynical.
2. Since nobody wants to talk about fines (except in Europe) I want to start the conversation in terms of asset forfeiture. And in the computer crime arena, this seems to have great potential IF the forfeiture is done right — e.g., all pervs who do dirty illegal stuff with computers should have their computers taken away and given to inner-city schools that need computers. \
Is anybody talking about an asset forfeiture law that is limited solely to the computers used for the commission of a computer crime? I’ve done a lot of asset forfeiture work, and I’ve never see such “restraint”. Like I said, asset forfeiture is an addiction.
1. Well, Martha (Stewart, I presume) make more money (though stock holding increases) in her 5 months in prison than she did in the previous 5 years. Of course, she got to keep this money instead of having to give it to folks who are less fortunate. She said while in prison that she was going to work for reforms when she got out, but we are all still awaiting the Stewart foundation on sentencing reform. Maybe you will check with Martha about how bad her bottom line was.
I’m not sure about the “Dennis” you are referencing, but let’s stick with the perjury issue. In all likelihood Barry Bonds and Roger Clemens will pay millions to their lawyers to try to avoid prison for their perjury. Why don’t we just offer a plea deal that allows them to “forfeit” millions made because of their steroid use to an anti-steroid-use foundation. Neither are clearly guilty, but both will give other rich people (their lawyers) lots of money instead of having that money go to a much more deserving cause. I also wonder how much Scooter Libby sent on lawyers without even having to spend a single day in prison.
2. Perhaps society is not talking more about better forfeiture provisions because people like you and other (so-called?) liberals fail to realize that you make the system worse, not better, by being adamantly against any kind of property-deprivation punishments. One reason I like property-deprivation punishments is because it will impact people with more property — like Martha and Bonds and Clemens and Libby — a lot more than people with less property.
We’re now moving into different turf. You ask, “Why don’t we just offer a plea deal that allows them to “forfeit” millions made because of their steroid use to an anti-steroid-use foundation.” First, that bears no relationship to the proposal you endorsed, and does not reflect any law ever proposed anywhere by anyone. And by putting “forfeit” in quotes, I assume that you are now backing off asset forfeiture and supporting a fine in lieu of incarceration, since forfeiture has zero to do with where the assets end up, since the concept of forfeiture (as you of course know) is that they are forfeit to the sovereign.
You then justify your utopian vision of forfeiture by blaming me, “because people like you and other (so-called?) liberals fail to realize that you make the system worse, not better, by being adamantly against any kind of property-deprivation punishments.” I’m not against any property-deprivation punishment. Did you miss the part where I wrote about fines versus forfeiture? But I’m getting the distinct feeling that you don’t understand forfeiture as well as I would have thought you did. Forfeiture is not, by definition, punishment. Fines are punishment. Are we talking the same language?
Trust me, I know the reality (not the legal fiction that forfeiture is not punishment because the land/house/boat/car is “really” what’s being dealt with). The argument that forfeiture is not really punishment is almost as convincing as the argument that residency restrictions are not punishment. If you tell me you do not consider residency restriction punishment, then we can got one with reality and stop worrying about formal labels used by rich criminal to keep down poor criminals.
I also know, by the way, that forfeiture reform is the only significant pro-defendant legislation passed by Congress in the last 15 years, and that’s because people with property (unlike most criminals) have political power AND because asset forfeiture is such a crude punishment device that the harms of over-punishment become clear very fast.
I understand you are stuck in an old-world common-law notion that forfeiture involves “property forfeited to the king.” But we do not have a king; rather we have state governments desperately in need of resource for schools and roads and police forces and other means to help its citizens, etc. I have no problem funding state needs to do good through a “property tax” in the form of a forfeiture for any/all property that is used to facilitate a serious crime. One of many benefit of this kind of property tax is that, if done right, it can crafted effectively be (a) progressive (unlike sales taxes and gas taxes) and (b) it only is applied to law-breakers rather than to everyone (i.e., you can complete avoid this tax by just not breaking the law).
I am pretty darn convinced that we’d have a lot less drunk driving deaths if we forfeited the car of the person driving drunk and/or forfeited the bar of whomever served the drinks to the drunk driver. And I am pretty sure we’d have fewer serious domestic violence cases if we forfeited the house of the wife-beater. And I am pretty sure we’d have less gun crimes is we forfeited the plant that manufactured an illegal gun. And, best of all, the government can then sell all these items to raise money for schools and roads and police forces.
Would I rather do this through fines? Sure. But is Kentucky talking about fines or forfeiture? Try to play better with the cards that are being dealt right now, rather that simply say I wish we were playing with another deck. Ironically, if well-meaning people learn to play the current cards better, maybe that will convince others to think about using the other deck instead.
Now I’m really confused. You recognized the difference between forfeiture and fines, the over-reaching of forfeiture, but are willing to accept it in the hope that it displaces incarceration? I’m still having great trouble understanding how you’re arriving at this conclusion.
Some might say we could eliminate the same problems by getting rid of that silly Bill of Rights too. I don’t buy into result oriented jurisprudence. And by the way, what happens to the wife and children when the wife-beater’s house is forfeited? And how does the first time DWI with no accident or harm get to work when you’ve forfeited his car? How does his family eat when he loses his job? There’s much more to all this than just assuring ever-increasing punishment of one sort or another.
And then you still suggest that the forfeited proceeds are used for schools? Or drug treatment? Or abuse programs. Never. Anywhere. Ever. This is an indulgence. These funds and assets go to law enforcement, as Kentucky, the law you support, expressly states.
While we would be having a totally different discussion if we were talking about fines rather than forfeitures, these are not comparable “decks”. Once forfeiture has been established as the means to strip defendants of assets pre-trial, pre-conviction and without constitutional protections, the game is over. That’s why your support of the forfeiture (not fines) proposal is so shocking. And it remains shocking. I’m afraid that your arguments have not only been unpersuasive, but bordering on scary. So I guess we’ll have to agree to disagree (strongly) on this one.
What is sad and scary is that, the week after the Pew report shows how many lives are destroyed by our current policies, you are deeply fearful (rather than hopeful) of an idea designed to achieve a paradigm shift in punishment.
As for the wife/kids who are the victims of DV, how about FORFEITING THE HOUSE TO THEM!!! They stay with the wife-beater largely because they do not have the economic resources to get out. Let them have the house — and let the wife and kids threaten the beating SOB that he’ll lose his house if he beats them again — and the modern economic realities of DV changes in a heartbeat.
Unless you think modern tort law violates the “silly Bill of Rights,” you have to realize that we use money all the time to incentivize and punish. However, women rarely have $$$ to hire a tort lawyer to sue a battering husband. But with forfeiture, that lawyer will be state provided — in the form of an experienced prosecutor.
As for the drunk driver, we can let the first-timer just pay a fine and then let him know he loses his car with his second offense. Do you believe REPEAT drunk drivers should be able to keep the property that he is repeatedly turning into a more dangerous weapon than a loaded gun?
I am not content to just “agree to disagree (strongly) on this one.” Anyone not seriously thinking about VERY different solutions to mass incarceration, in my mind, is a BIG part of the problem. (And, as you should know, most criminals in prison now don’t have a car or a house or a job to forfeit.) Why are you more sympathetic to people with property who commit crimes than to people without property who commit crimes.
I have long believed that liberals get in the way of SERIOUS game-changing criminal justice reforms more so than conservatives. This discussion confirms this belief. As I suggested at the outset, I think this is ultimately more sad than scary, because it shows that liberals are so brainwashed or beaten by current realities that that cannot ever imagine a different world in which sounder criminal laws come to dominate.
Doug,
How do you forfeit the house to the wife “and kids” when the wife already owns the house? Don’t husbands and wives own their homes together (unless inherited)?
Why not just stop the war on drugs since that is the sole reason our prisons are overcrowded. You want change but you dont want to fix the problem, you want to add to the problem.
I’d love to stop the war on drugs, and you are right that this would take care of a lot of problems. But that change (which few in power are really advocating) is not going to stop excessive prison sentences for other crimes.
If the wife already jointly owns the house, we can/should forfeit the hubby’s separate interest so she can (if she wants) sell the house free and clear and keep all the profits. And if she already owns the house, we can forfeit the guns or other possessions the beating hubby has if needed.
Again, please understand that I am not arguing that I propose the ideal answer, rather I just am very tired of purported liberals reinforcing the status quo because they are fearful about distinctive alternatives.
I don’t think anyone is fearful that it is a distinctive alternative. If anything, I think some might be “afraid” because there are people out in the world proposing such things.
Let’s assume by some massive stretch of the imagination that drug forfeiture has worked in this country. Let’s also suppose that this new set of asset forfeiture laws gets passed.
Where does it end? Do we become a country involved in asset redistribution whenever someone violates a law?
Suppose Dad hits mom, gets arrested, is found guilty, sent to jail. Mom has the house. But mom is no peach either. Mom beats her children. Kids go to court and become emancipated, as part of their emancipation the judge awards them mom’s house.
NOW the kids can’t afford the house but before they can sell it or before the mortgage company can foreclose (mind you during the whole ordeal private enterprise is being pre-empted by state control) a social worker comes to check on the kids and sees a joint on the table. She notifies the police who arrest the kids and of course take the house for the state under the now quaint drug forfeiture laws.
Thinking outside the box is good. Figuring out how those ideas might actually apply to real world applications is better.
And not to beat a dead horse but you are still having problems with labels/definitions.
Why Definitions Matter: Politics versus Ideology
While I really hate to resurrect old debates, and I really hate to see them come back on some other blawg where a straw man argument is raised that it’s intended to make a point that
can’t be made against the real argument, some discussions keep bringing new issues into the mix that themselves are worthy of further discussion.
And so it happens.
Blawg Review #150
Scott Greenfield says Some Alternatives to Sentencing Are Just Plain Bad.
Another Simple Solution to Prison Costs
As I write these first few words, I dread the harangue that I foresee coming.