The Corruption You Can Fix
by James Vonder Haar
It’s not often that people across the political spectrum can sit around the fire – preferably burning the carcass of some failed policy – and sing “kumbaya”together. It’s not often that a political reform coalesces that hits on every one of the significant tribal markers of each political party, and not oppose each other. It’s rare that substantive political change occurs with resounding majorities and agreement from every major think tank, whatever their politics.
So let’s take a moment to admire New Mexico:
The state Senate [of New Mexico] has just passed a sweeping bill that would virtually eliminate the practice of civil asset forfeiture and on this issue leave New Mexico as the most Fifth Amendment-friendly state in the country.”
So what exactly is civil forfeiture? It’s basically the process by which police can steal your stuff. No really, that’s it.
The doctrine goes all the way back to 1600s British Maritime law, though it unfortunately also has the imprimatur of democracy in the form of the Comprehensive Crime Control Act of 1984, passed at the height of War on Drugs hysteria. At its best, it represents the “fruit of the poisoned tree” sort of thinking- the property of drug lords has to go somewhere, and it might as well fund police departments. In practice, the due process protections are laughable. You don’t even have to be arrested, merely stopped, for civil forfeiture to occur. Indeed, according to the Institute for Justice “Eighty percent of people from whom the federal government seized property for forfeiture were never even charged with a crime.” Thanks to a legal fiction that allows the police to put the property itself on trial, rather than the accused, the already paper-thin due process shields might as well be shredded altogether. The burden of proof shifts to the accused, who must prove. through an arduous legal process, that his or her property was not complicit in criminal activity. The system doesn’t give a fig if the amount seized was too little to justify paying a lawyer or if you’re poor and can’t afford one in the first place. The New Mexico law abolishes civil forfeiture while still allowing for seizures in the event of a conviction, which even this libertarian can’t get too worked up about.
This cuts across the political aisle, to put it mildly. Random guy on the street? Tell him “police can steal your stuff without a conviction,” and he’s up in arms. Conservatives? They aren’t kidding about that whole “private property” thing. Liberals? The people targeted by civil forfeiture laws are most often the poor and minorities who lack the ability to challenge the system, and anyway it’s intimately related to the war on drugs. Libertarians? Having a fetish for private property AND a healthy fear of the police, they’re probably the biggest opponents.
It’s not surprising, then, that the forces of good pitched a shutout in New Mexico. 70-0 in the house. 42-0 in the Senate. I’ve some experience with the ground game of the ACLU-NM, having been a cog in the push for civil unions, and they’re an extraordinarily efficient organization. But you don’t rack up gaudy victories like that without the political fundamentals being substantially in your favor.
Indeed, seemingly all significant non-governmental entities were in favor of the legislation:
The bill was supported by the American Civil Liberties Union of New Mexico, the conservative think tank the Rio Grande Foundation, the Drug Policy Alliance and the libertarian law firm the Institute for Justice (IJ). In an e-mail, Peter Simonson of the ACLU-NM writes, “The sponsor was the Republican chair of the House Judiciary Committee and the bill had strong bipartisan support throughout the legislative process, passing both chambers unanimously.”
It is not, then, political consensus that we lack. It’s political will. This seems like one of those classic barber-licensing schemes political scientists go on about that hurts everyone, but not enough for anybody to actually do anything about it.
Well, screw that, and screw those political scientists. This is one issue that probably isn’t on your state representative’s radar, but who will almost certainly back you once you bring it to his or her attention, whatever their party affiliation. This is the lowest hanging fruit in American politics I can find – one with broad bipartisan support and of undoubted utility which has only languished because of will. Most of the time, the skeptics are right; your voice is drowned out in a chorus of other conflicting voices. But here?
E-mailing or calling your state representative or senator can really move the needle. This is a queer opportunity of limited knowledge and broad political support that doesn’t come along very often. Utilize it, and contact your state representative about the issue.
[Picture via Wiki Commons]
What is interesting about civil asset forefiture is that it seems to have bipartisan supporters and detractors. The worst example I hear about usually come from rural or ruralish areas in red or purple states and also some big cities like Philadelphia.
The big issue seems to be how much of a police department’s budget comes from CAF. In some areas, law enforcement gets to keep all of what they take and this creates perverse incentives. I’ve heard that when CAF goes to the general fund, the amount of CAF decreases substantially. Cities have issues when they can’t raise taxes.
Again this shows the failure of the starve the beast strategy of the right-wing. Government just kept on looking for funding through alternate means because people still expected government to work.Report
Montana seems to have passed a law also:
There is, as I understand, a work around.
Get the FEDS involved. Since they aren’t covered, if they are involved, you still get a slice of the pie when they seize the assets. Fixing THAT will be a bit harder.Report
IIRC, New Mexico put a squish on that too. Something about federal sharing going into the general fund.Report
That’s welcome news!Report
IIRC, the federal law prohibits that as well.Report
I’m guessing the cops got greedy and started going after middle class stuff for it to have come to this.Report
We don’t have a fruit hanging low problem. What we have is a ax deficiency.Report
The rationalization for civil forfeiture I used to hear was that it prevented drug kingpins from using their ill-gotten gains to hire high-priced lawyers to get them off. Of course, even that feeble thing doesn’t justify using it when no one is ever charged or taking pittances from people who in the event would rely on a public defender, or explain why not even a probable cause hearing was required.
Though I’m surprised that the rationale for this injustice is that the crime was committed by the property itself rather than its owner. In general, property has more rights than people.Report
Now if only property had the right to legal representation…Report
Well, the old phrase that’s no longer is use is “the rights of property”. We can get there again. We’re so close.Report
The government used to be able to force people to leave their homes, jobs, and families and choose between jail, exile, and being sent overseas to be shot at. That didn’t cause half the outrage I heard about it being able to make you sell it your house for full market value.Report
Technically, people who criticized the draft were thrown in prison and, when this case went to the Supreme Court, one of the judges said something about falsely yelling fire in a crowded theater and the court unanimously ruled that the guy should stay in jail.
I don’t know how much that that resulted in limited outrage over the draft, but it probably had an effect worth mentioning.Report
That was WWI, which was before even I was born. During Vietnam, which I remember well, you could criticize the draft all you wanted, but it was still a fact of life, and the only people who talked about abolishing it were pinkos.Report
This created the sickest incentives.
I can’t imagine saying “this person was found guilty of murder, therefore we are going to sell his car at auction”. “This other person was found guilty of burglary, therefore we are going to sell his television.”Report