Guilty until proven innocent

“It is better 100 guilty persons should escape than that one innocent person should suffer.” — Benjamin Franklin

You and your spouse are eating breakfast in your home of nearly fifty years. Several vans pull up, armed police stream out and tell you that you have 10 minutes to grab your things and leave. Permanently. They are seizing your property. No notice, no warning, no court hearing, no due process of any kind. You might believe that could happen in a dictatorship, but can you believe that it happened in Philadelphia?

A police officer stopped a car and falsely stated that a taillight was out. The officer then claimed that the driver “looked like a drug dealer” and had him searched by a drug dog. The officers asked him if he was carrying drugs, guns, or money. He replied that he had $3,500 in cash. The officer seized the money, claiming that it must be proceeds of drug dealing. The man was never charged with a crime.

Terry Dehko and his daughter Sandy run a small grocery store. In January, 2013, the federal government seized all the money from the store bank account on the theory that his cash deposits might have been a cover for illegal money-laundering. No evidence, no due process. The Dehkos had done absolutely nothing wrong, but the government took their money. A year later, he is still trying to get his money back.

Welcome to the world of civil asset forfeiture, where people are guilty until proven innocent. If police have the slightest suspicion that property, including cars, cash, or even homes, was connected to a crime, then they can take the property, and dare the owner to try to get it back.

The theory behind civil forfeiture was to take the ill-gotten gains of major crime figures even if those criminals could not be caught and brought to trial. But now almost all the seizures involve minor criminals and all too often people who have committed no crime at all.

In most cases, the police act as judge, jury, and executioner. They seize money on the excuse that they think it was going to be used to buy drugs, they don’t charge the “suspect” with even a violation, they just send him on his way. There is no due process, no court hearing, the victim is given no information about how to get his money back.

There might not be even the slightest evidence of any crime but the victim has to sue the state, then prove his innocence to get his property returned. The cost of hiring an attorney is usually more than the amount of money seized so most people give up.

The police, and sometimes the DA, keep the money as their own, and spend it however they see fit, with no oversight in the executive branch or by the legislature. A district attorney in Texas spent forfeiture money on an office Margarita machine. Police in a small Florida town spent $23,704 on trips with first-class flights and luxury car rentals. The Milwaukee County Sheriff’s office used civil forfeiture funds to buy nine flat-screen TVs for $8,200, and two Segways for $14,500.

The late Congressman Henry Hyde exclaimed, “Civil asset forfeiture has allowed police to view all of America as some giant national K-Mart, where prices are not just lower, but non-existent — a sort of law enforcement ‘pick-and-don’t-pay.'”

The abuse of power, absence of due process, and harm to innocent people has created opposition across the political spectrum, from the ACLU on the left to the Heritage Foundation on the right. The non-partisan Institute for Justice has fought many forfeiture cases (all pro-bono) in the courts.

A former Justice Department forfeiture official became so dismayed by the injustice of the forfeiture system that he switched from prosecution to defense. David Smith explained, “We are paying assistant U.S. attorneys to carry out the theft of property from often the most defenseless citizens,” given that people sometimes have limited resources to fight a seizure after their assets are taken.

We do not know whether New Hampshire has experienced some of these abuses – the record keeping requirements are so lax that we cannot know. We do know that our laws are so weak as to allow these same kinds of problems to occur here. Many of us think we should reform the statutes to prevent future problems.

A bill, HB 1609, has been offered with bi-partisan support to reform our forfeiture laws.

The bill requires that a person must have his day in court. He must first be convicted of a crime in criminal court before his property can be forfeited. No one will lose his property on the mere suspicion of a police officer.

Any forfeiture proceeds go to the state’s general fund, not to a police department’s slush fund. This is the same as fines for other crimes – they go to the state, where legislators during the budget process decide how to appropriate them. Police departments and prosecutors cannot divvy up the funds for their own benefit.

If property such as a car or house is connected to a crime, but the owner(s) were neither involved nor had any knowledge of the crime, those innocent owners cannot have their property forfeited.

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