Monday, December 28, 2015

Tell Me Something Good

Institute for Justice(The federal government tried to seize this motel worth $1.3 million even though its owner was not accused of breaking the law).  Photo from Institute for Justice.

Okay . . . The recently passed Omnibus Spending Bill, which funded the more than a trillion dollars in federal spending not devoted to entitlement programs like Medicare and Social Security was a disaster for anyone interested in sane spending policy and control of a constantly growing federal bureaucracy.  And it was made possible by an ostensibly fiscally responsible Republican Party giving up the successful sequestration process that had imposed some semblance of fiscal discipline over the past two years.  As THC mentioned in a recent post, the Congressional GOP leadership's enabling of this farce could not have been better suited to promoting Donald Trump's candidacy.

However, as more details of the contents of the Omnibus have leaked out there is a positive note!  You may first inquire as to why we have had to wait for leaks.  It's because the Democratic and GOP leaderships kept the negotiations secret from their own members as well as the general public; after all what possible interest could the average citizen have in the details of how their government is spending more than a trillion dollars?

Where was I?  Oh yes, the good news - with support from both sides of the aisle, Congress has finally put a damper on the outrageous practice of Civil Asset Forfeiture (CAF).

CAF allows federal and state enforcement agencies to seize cash and other assets from people even if they have not been charged with a crime, but are merely suspected or if the authorities assert that their assets were derived directly or indirectly from suspected criminal behavior.  Your first reaction upon learning about CAF is how can it be constitutional but both state and federal statutes have been upheld by numerous courts.

Knowing what we know about human behavior and the Iron Law of Bureaucracy, it should be no surprise that if you give agencies the authority to seize assets without proof of criminal behavior and those agencies are able to retain most of the seized assets to supplement their own budgets that the result will be massive abuse of statutory authority and it is precisely what has happened with assets being seized from citizens who are not only not guilty of a crime but demonstrably innocent!  For details read this, this, this, this and this.

The outrageous abuse of CAF has, in recent years, led several states to put constraints on its use.  However, the United States Department of Justice, which operates its own awful CAF program under a federal statute, had instituted an Equitable Sharing Program (for more details read this piece) which effectively allowed local police departments to bypass state restrictions on the amounts seized which could be retained locally for budget purposes as well as state-level procedural protections for those victimized by this racket.

Here's an example of how equitable sharing works from the case of a Massachusetts motel owner in which a federal court eventually found in his favor.
Caswell, whose father built the motel in 1955, has not been accused of any wrongdoing, and the local Motel 6, Fairfield Inn, Walmart, and Home Depot have had similar problems with drug activity. But the government argues that Caswell was "willfully blind" to drug dealing and could have done more to prevent it.

Caswell, who has been running the motel since 1983, says he has no way of knowing what his customers are doing behind closed doors. He has always cooperated with the police, calling them to report suspicious activity and offering them free rooms for surveillance and sting operations.
In 2009 he got his reward: a forfeiture notice. Police had never suggested additional steps he could take to discourage crime or warned him that the motel—which supports him, his mother, his wife, their son, their daughter-in-law, and their granddaughter—could be at risk.

This cruel surprise was engineered by Vincent Kelley, a forfeiture specialist at the Drug Enforcement Administration who said he read about the Motel Caswell in a news report and found that the property, which the Caswells own free and clear, had an assessed value of $1.3 million. So Kelley approached the Tewksbury Police Department with an "equitable sharing" deal: The feds would seize the property and sell it, and the cops would get up to 80 percent of the proceeds.

Under Massachusetts law, by contrast, police would have received only half the loot, and forfeiture may have been harder. State law says a seized property has to be used not just to "facilitate" a drug crime but "in and for the business of unlawfully manufacturing, dispensing, or distributing controlled substances," which suggests a stronger connection.
The new Congressional spending agreement cut the DOJ funds for the program in 2016 forcing the Department to announce the ending of the Equitable Sharing Program which will force local police departments to act in compliance with state law.  Next step: reform the Federal program and additional state action.

So that's THC's good news for the day.

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