Windypundit and A Public Defender are having a great discussion of “free” punishments imposed by Legislatures on people arrested for crimes. Without any malicious intend to step on their toes, one particular “free” punishment that has long been hugely troubling is forfeiture.
In the old days, the maxim “The Law Abhors a Forfeiture” was the rule. But one day, somebody got it into their head that the government LOVES a forfeiture, and then everything changed. Think about it. Take a guy while he’s down, take his assets and sell them for cash, which then goes to the government. What’s not to like?
For most people, their view of forfeiture relates to cars, seized during drunk driving arrests. This is but one, albeit the most pervasive and prominent, form of forfeiture. Forfeiture in other contexts can include homes, businesses and bank accounts. Under the guise of “proceeds” of crime, or “substituted proceeds of crimes,” meaning where the money from crime went, or what was purchased with legitimately earned money over a lifetime when the money made from crime can’t be found, anything and everything can end up being the subject of forfeiture.
In New York City, forfeiture was a free-wheeling deal until a federal court put some limits on it in McClendon v. Rosetti, 460 F.2d 111 (2nd Cir. 1972). It started with a 10 day period after a demand was made for the return of property, which later became 10 “working” days after a “proper” demand, which later just fell into another legal fiction to be routinely ignored. Don’t the police work every day? Not in NYC, apparently. Ironically, by the time a vehicle was ready for forfeiture, it had sat for months, even years, in the open police pounds in Queens until the car was nearly worthless. Leave it to the government to screw up a good thing.
But what became of forfeitures in New York City? The proceeds went into the police pension fund, thereby reducing the City’s contribution and fattening the calf for elderly police officers. Do you think this provided an adequate incentive for the Police to seek forfeiture?
In federal courts, the forfeiture procedure was far easier than anywhere else, and the state (CPLR Article 17A) and local procedures fell into relative disuse since the deal with the feds made life easier for everybody. Whether it was direct federal forfeitures, or what was euphemistically called an “adoptive forfeiture,” there was one overarching feature of federal forfeitures: The burden of proof is probable cause. That’s right, you don’t get any lower than probable cause.
So the state and local police would send its paperwork over to the federal forfeiture people, who would require a 10% “bond” to allow citizens the right to challenge the forfeiture, and then proceed by alleging probable cause, which would shift the burden to the claimant. Of course, to claim a forfeiture, the property owner would have to provide an affidavit (with the bond) to show his right to the property, which would happen while a criminal prosecution was ongoing, and serve as an admission in the criminal case creating the classic Hobson’s Choice. It was a brilliant system for the government.
Assuming you got past the procedural hurdles to get into the game of claiming property, the claimant would then be required to submit to all the civil procedural discovery mechanisms while simultaneously defending against the criminal charges. How could this be? Another legal fiction.
In federal forfeiture cases, the “defendant” is not the person, but the “thing” (the “res” as us lawyers call it in Latin to make us feel special). It is the “res” that offends the sovereign, and forms the basis for forfeiture. So there is no jeopardy issues for the defendant person when the defendant thing is at risk. That’s the beauty of legal fictions. They may make no sense at all, but it allows the courts to pretend they do and, by inserting a bunch of legal platitudes where one might otherwise expect thoughtfulness and reason, feel good about themselves for taking property away from people who can’t fight back.
So why do the state and local governments like this adoptive forfeiture method? Because the feds have be far the sweetest deal on forfeitures, so totally skewed in favor of the government and so fraught with criminal liability risk for the person defendant that the very thought of challenging the forfeiture is almost like begging the state to toss you in jail. But the feds are not entirely greedy. Not the citizens, but with state and local police. They split the proceeds with their benefactors, letting the local cops have a small chunk of change while keeping the balance for their “services”. Everybody makes out, except the people from whom it’s taken, or his family, business associates, acquaintances.
As free punishments go, this is a big profit center for the government. And because it puts money in the government’s (and particularly law enforcement’s) pockets without them reaching directly into the taxpayers, they just love it. For those citizens who can’t possibly perceive themselves to ever be the victim of this little government game, it sounds like a good deal all around.
But since anybody, ANYBODY, could end up getting snagged for going one beer over the line, consider how you would feel if your brand new Mercedes AMG was sitting in the Whitestone Pound for 22 months while you were fighting the “zero-tolerance” stance toward drunk driving. Seems a bit excessive? But it doesn’t seem too farfetched, now does it?
In the old days, the maxim “The Law Abhors a Forfeiture” was the rule. But one day, somebody got it into their head that the government LOVES a forfeiture, and then everything changed. Think about it. Take a guy while he’s down, take his assets and sell them for cash, which then goes to the government. What’s not to like?
For most people, their view of forfeiture relates to cars, seized during drunk driving arrests. This is but one, albeit the most pervasive and prominent, form of forfeiture. Forfeiture in other contexts can include homes, businesses and bank accounts. Under the guise of “proceeds” of crime, or “substituted proceeds of crimes,” meaning where the money from crime went, or what was purchased with legitimately earned money over a lifetime when the money made from crime can’t be found, anything and everything can end up being the subject of forfeiture.
In New York City, forfeiture was a free-wheeling deal until a federal court put some limits on it in McClendon v. Rosetti, 460 F.2d 111 (2nd Cir. 1972). It started with a 10 day period after a demand was made for the return of property, which later became 10 “working” days after a “proper” demand, which later just fell into another legal fiction to be routinely ignored. Don’t the police work every day? Not in NYC, apparently. Ironically, by the time a vehicle was ready for forfeiture, it had sat for months, even years, in the open police pounds in Queens until the car was nearly worthless. Leave it to the government to screw up a good thing.
But what became of forfeitures in New York City? The proceeds went into the police pension fund, thereby reducing the City’s contribution and fattening the calf for elderly police officers. Do you think this provided an adequate incentive for the Police to seek forfeiture?
In federal courts, the forfeiture procedure was far easier than anywhere else, and the state (CPLR Article 17A) and local procedures fell into relative disuse since the deal with the feds made life easier for everybody. Whether it was direct federal forfeitures, or what was euphemistically called an “adoptive forfeiture,” there was one overarching feature of federal forfeitures: The burden of proof is probable cause. That’s right, you don’t get any lower than probable cause.
So the state and local police would send its paperwork over to the federal forfeiture people, who would require a 10% “bond” to allow citizens the right to challenge the forfeiture, and then proceed by alleging probable cause, which would shift the burden to the claimant. Of course, to claim a forfeiture, the property owner would have to provide an affidavit (with the bond) to show his right to the property, which would happen while a criminal prosecution was ongoing, and serve as an admission in the criminal case creating the classic Hobson’s Choice. It was a brilliant system for the government.
Assuming you got past the procedural hurdles to get into the game of claiming property, the claimant would then be required to submit to all the civil procedural discovery mechanisms while simultaneously defending against the criminal charges. How could this be? Another legal fiction.
In federal forfeiture cases, the “defendant” is not the person, but the “thing” (the “res” as us lawyers call it in Latin to make us feel special). It is the “res” that offends the sovereign, and forms the basis for forfeiture. So there is no jeopardy issues for the defendant person when the defendant thing is at risk. That’s the beauty of legal fictions. They may make no sense at all, but it allows the courts to pretend they do and, by inserting a bunch of legal platitudes where one might otherwise expect thoughtfulness and reason, feel good about themselves for taking property away from people who can’t fight back.
So why do the state and local governments like this adoptive forfeiture method? Because the feds have be far the sweetest deal on forfeitures, so totally skewed in favor of the government and so fraught with criminal liability risk for the person defendant that the very thought of challenging the forfeiture is almost like begging the state to toss you in jail. But the feds are not entirely greedy. Not the citizens, but with state and local police. They split the proceeds with their benefactors, letting the local cops have a small chunk of change while keeping the balance for their “services”. Everybody makes out, except the people from whom it’s taken, or his family, business associates, acquaintances.
As free punishments go, this is a big profit center for the government. And because it puts money in the government’s (and particularly law enforcement’s) pockets without them reaching directly into the taxpayers, they just love it. For those citizens who can’t possibly perceive themselves to ever be the victim of this little government game, it sounds like a good deal all around.
But since anybody, ANYBODY, could end up getting snagged for going one beer over the line, consider how you would feel if your brand new Mercedes AMG was sitting in the Whitestone Pound for 22 months while you were fighting the “zero-tolerance” stance toward drunk driving. Seems a bit excessive? But it doesn’t seem too farfetched, now does it?