When the Department of Justice announced that it authorized an extension of authority to the Bureau of Alcohol, Tobacco, Firearms and Explosives to engage in the forfeiture of property related to controlled substances, it seemed like a non-event. At worst, it ended the charade of agencies handing off property to other agencies to do as they will, and wouldn’t make a ripple as far as the victims of forfeiture are concerned.

But the efforts of Eapan Thampy, head of Americans for Forfeiture Reform, who has been guest-blogging up a storm at Radley Balko’s Agitator, has kept forfeiture on my mind.  In a Cato video,  Walter Olson gives a good overview of some of the more outrageous uses of forfeiture.  At the same time, a Tennessee backwater  wants a drug dog to get in on the action, lest they miss out on the gravy train.

Civil forfeiture is a disaster, one of the most abusive, and easily abused, powers the government gives itself. It makes for a good press release and easy justification, as it purportedly takes the profit out of crime. Any government action that can reduced to a pleasing slogan is an easy sell to the public. What’s not to like?

Despite efforts like Eapan’s and Wally’s, the public has little clue what this is all about and why it’s a problem.  After all, there is no advocacy group arguing in support of a drug dealer’s right to keep his ill-gotten gains, and that’s what it’s all about, right?  Theoretically, true, and if the government could manage to limit itself to property that was truly the proceeds of crime, no one would shed a tear.

But it’s a cash machine for the government, justified by what appears superficially to be a worthy cause,

So why bother writing about it?  After thinking more about the DOJs extension of authority to ATF, and despite the fact that this has no practical impact, it reflects the fact that the Obama Administration, by Attorney General Eric Holder, has chosen not to reform the atrocity of civil forfeiture, to honor meaningful due process and to protect the rights of innocent Americans from having the government steal their property under color of law, but rather to make a bad thing worse. 

After the nightmare Bush II years when it came to “tough on crime,” and screw civil rights, the election of Barack Obama seemed to offer “hope” and “audacity,” at least on the constitutional front.  There would be a president in the White House who would appoint federal judges who, although not quite friendly to our arguments, wouldn’t be overtly hostile.  And abuses, from torture to rendition, would be seen through the eyes of a man who appreciated and understood the Constitution. 

It’s bad when people you expect to be antagonistic to your beliefs takes office.  It’s crushing when the man you believe will be better, the only hope you’ve got, is no different. President Obama has taken forfeiture and pushed it even further.

This is not a political blog, and I do my utmost to steer clear of political disputes. This has nothing to do with the arguments favoring one party over another, but has to do with the current administration’s announcement, in the midst of campaign season, of a course of action that further embeds civil forfeiture in our system.  Would the other team do the same, or worse? Perhaps.  But Holder did it now, and made his position clear.

There was once a time when the courts severely frowned on forfeiture. This wasn’t so long ago. But in the course of a generation, it’s become part of our legal fabric, given little thought and allowed, indeed enabled, as a matter of course. It doesn’t have to be this way.

The mere possession of large amounts of cash are presumptively drug-related.  The government made clear in the 1980s that it hated cash, as it couldn’t track it for tax evasion and criminal proceeds purposes. The subsequent use of credit and debit cards followed, where every dollar spent could be easily traced and counted.  Now, anyone found in possession of substantial amounts of cash can expect it to be seized, and the burden is on the citizen to prove that his money is legally derived and untainted by criminal conduct.

The concept has gotten so crazy that cars belonging to one fellow are seized when driven by another who is alleged to be drunk.  They are the “instrumentality of the crime” of drunk driving, even if the owner of the car, who will be the person to suffer the loss, was nowhere in sight.  Or what of the family home that housed the computer on which an obscene picture was found? Instrumentality, baby. The “thing” offends the sovereign, and the sovereign is cleaning up.

I don’t know why I bother mentioning some of the irrationality of forfeiture, as a thorough discussion could take many thousands of words, and the best I can do here is scratch the surface.  My point is that this otherwise irrelevant act by Holder leaves no doubt that our current administration, which tries to distinguish itself from the other guys as the saviors of civil rights, is shown to be a load of crap. Neither team has the slightest interest in slowing down the gravy train, no less stopping it.

I might suggest that the best answer to forfeiture is not to commit a crime, but then, crime has nothing to do with it. And that’s the heart of the problem.  Instead, I hope you don’t have the misfortune to meet forfeiture on some backroad.  And the only thing you can count on is that it’s not going to get any better, as Eric Holder just made clear.