In civil asset forfeiture, the property, not the owner, is accused of the crime. Prosecutors are not required to advise a defendant as to how to defend their property, or what timeline must be followed. If the owner does not file their documents in a timely manner, their property is seized by default.
Between 1985 and 1995, the federal government through the Departments of Justice and Treasury, has seized over $4,000,000,000.00 (4 billion) from U.S. citizens, many of whom have never even been charged with a crime. In a single year, fiscal year 1994, the DEA alone made 13,631 seizures with a total value of $646,786,850.00.
Federal and many state forfeiture laws empower overnments to take people's private property without ever charging a crime. Legally, the property is accused of a crime, not the owner. Lawyers call that in rem -- Latin for "against the thing." One odd result is case names such as "U.S. vs. $2,452" or "U.S. vs. A Parcel of Land Known as 4492 South Lavonia Road."
Civil asset forfeiture laws allow the government to seize property without charging anyone with a crime, and then keep it without ever having to prove a case. Seized property is presumed guilty and may be forfeited based upon mere hearsay, or even a tip supplied by an informant who stands to gain up to 25% of the forfeited assets. Since police get to keep nearly all the proceeds from forfeited property, officers often succumb to budget pressures and the temptation of bounty in the form of seized assets for their departments. Beyond the Drug War and following in its wake, over 200 federal forfeiture laws are attached to non-drug offenses.
The corrupting influence of unbridled greed has led to many personal tragedies. Innocent rancher Donald Scott, killed by police when a forfeiture grab for his 250 acre ranch went awry. Byron Stamate lost his 44 acre ranch when he was caught growing medical marijuana for his wife, who committed suicide in remorse rather than testify against him in court.
Property can be seized if the police claim that it was:
In federal forfeiture cases, law enforcement gets to keep the assets. Some states provide that a portion goes into their General Fund.
No hard evidence; just probable cause - the same standard required for a search warrant or arrest. Police can use hearsay evidence, such as a tip from an informant whose name is not revealed. Hearsay is not allowed in criminal trials, where a defendant has a right to question his accuser.
You must file a "claim" that you are the owner of the seized property and, except for real estate or property worth more than $100,000.00, post a cash bond equivalent to 10% of the value of the seized property.
At trial, the burden of proof is on you, not the government. You must prove that your property is innocent by a "preponderance of the evidence" - a higher standard than the "probable cause" standard used by police to seize the property.
It might help. Until recently, it was held irrelevant to the forfeiture case (where you must prove your money or property was legally obtained or is innocent of facilitating a crime). Now some courts have applied double jeopardy to forfeiture, so certain parts of the Bill of Rights are finally being revived.
Before their arrest, the Kubinskis were active members of their farm community.
Kenny cut and delivered firewood to elderly neighbors, volunteered his landscaping skills to Habitat for Humanity through the church, and provided jobs through his family construction company. Jackie was an active member at her church, a volunteer at her children's school, and a local board member for the American Diabetes Association.
Due to asset forfeiture, the Kubinskis have lost everything: their home, their business, their freedom, and - for now, at least - each other. Following a traumatic separation, the children are learning to cope. They are able to visit Jackie once a month for a few hours at a time. Due to the long distance to the prison, however, they can only visit their father every three or four months.
Jackie wrote about her son's frustration: "Adam would get so mad, because he couldn't do anything to help get his mom and dad out of jail....
On Thanksgiving day, he cried, 'I just want my own mom and dad and my own turkey and my own table.' They always ask ,'When are you coming home?' "
"Civil asset forfeiture laws are being used in terribly unjust ways, are depriving innocent citizens of their property, with nothing that can be called due process. ...You never have to be convicted of any crime to lose your property. You never have to be charged with any crime. In fact, even if you are acquitted by a jury on criminal charges, your property can be seized."
-- U.S. Rep. Henry Hyde (R, IL)
"A law designed to give cops the right to confiscate and keep the luxury possessions of major drug dealers mostly ensnares the modest homes, cars and hard-earned cash of ordinary, law-abiding people. This was not the way it was supposed to work." -
- U.S. Rep. John Conyers (D, MI)
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