Asset Forfeiture has been part of the fun of being in the police department or being a prosecutor. It was first touted as a "tool" for law enforcement to use to try to penalize the "bad guys" --however law enforcement and prosecutors have found it to be rewarding to them, because they can "keep" some of the funds they are able to obtain through forfeiture. Not only does the agency get to keep some funds, but the governmental entity also gets a share. This provides a feedback loop where the government can "praise" the law enforcement unit for raising badly needed funds. What has happened is that the police and prosecutors have continued to abuse this "tool" and are now infringing on American's freedoms.
Last August Steve Greenhut wrote a ccolumnolumn on why it was still on the rise.
Why Asset Forfeiture Abuse Is on the Rise - Reason.com:
Today, he wrote another, very good column that explains why public officials become profiteers: http://www.utsandiego.com/news/2013/aug/12/greenhut-forfeiture-law-abuse/ Brad Reid had a recent wrap up of recent forfeitures' in a Huffington Post article: http://www.huffingtonpost.com/brad-reid/civil-asset-forfeiture-ch_b_3745209.html?utm_medium=referral&utm_source=pulsenews. Steve Lopez wrote a piece on the injustice of the Anaheim forfeiture: http://www.latimes.com/local/la-me-0825-lopez-busted-20130825,0,5226624.column
I think most Americans would agree that a criminal should not get to keep "ill gotten gains" -- however I believe that everyone would also agree that the determination of "ill gotten" should be left to courts. Before assets are given to an agency of some level of Government, it should be determined that an individual is guilty. Then, if a court determined that assets were gained by the criminal, then the court should also determine if any of those assets should be returned to victims, or given to some level or agency of the Government. It may make sense, for example for assets to be used to reimburse a prosecutorial or police agency for expenses involved in arresting and prosecuting an individual found to be guilty.
The problem is that if the assets aren't "captured" or "frozen" in some way, between the time the suspect is arrested and charged and subsequently found guilty, the suspect could liquidate those assets. The suspect might even be able to use those assets to help defend against the charges. Therefore, it appears that there needs to be some other form of "trustee" to hold assets that have been seized until the guilt or innocence of the suspect/owner of the assets has been determined by the court. While those assets are being held by a trustee, the trustee must be able to maintain those assets in such a way as to protect the owner/suspect from losing value. For instance, if a building has been seized, the trustee must be empowered to be able to collect rent, make repairs, pay bills etc. If the Government then wins a guilty verdict, and the right to keep the assets, the Government can then liquidate the assets, and pay the trustee for services rendered. If, however, the Government loses the case, and the suspect/owner is found innocent, then the Government should be forced to pay the trustee for services rendered, pay "interest" or "rent" for the use of that property while it has been seized by the Government, and/or compensate the owner/suspect for any loss in value of the seized property.
I think this would be a fair process, and not too difficult to set up within our Government. To do it probably will require some US Supreme Court decisions to make it happen.
Last August Steve Greenhut wrote a ccolumnolumn on why it was still on the rise.
Why Asset Forfeiture Abuse Is on the Rise - Reason.com:
Today, he wrote another, very good column that explains why public officials become profiteers: http://www.utsandiego.com/news/2013/aug/12/greenhut-forfeiture-law-abuse/ Brad Reid had a recent wrap up of recent forfeitures' in a Huffington Post article: http://www.huffingtonpost.com/brad-reid/civil-asset-forfeiture-ch_b_3745209.html?utm_medium=referral&utm_source=pulsenews. Steve Lopez wrote a piece on the injustice of the Anaheim forfeiture: http://www.latimes.com/local/la-me-0825-lopez-busted-20130825,0,5226624.column
I think most Americans would agree that a criminal should not get to keep "ill gotten gains" -- however I believe that everyone would also agree that the determination of "ill gotten" should be left to courts. Before assets are given to an agency of some level of Government, it should be determined that an individual is guilty. Then, if a court determined that assets were gained by the criminal, then the court should also determine if any of those assets should be returned to victims, or given to some level or agency of the Government. It may make sense, for example for assets to be used to reimburse a prosecutorial or police agency for expenses involved in arresting and prosecuting an individual found to be guilty.
The problem is that if the assets aren't "captured" or "frozen" in some way, between the time the suspect is arrested and charged and subsequently found guilty, the suspect could liquidate those assets. The suspect might even be able to use those assets to help defend against the charges. Therefore, it appears that there needs to be some other form of "trustee" to hold assets that have been seized until the guilt or innocence of the suspect/owner of the assets has been determined by the court. While those assets are being held by a trustee, the trustee must be able to maintain those assets in such a way as to protect the owner/suspect from losing value. For instance, if a building has been seized, the trustee must be empowered to be able to collect rent, make repairs, pay bills etc. If the Government then wins a guilty verdict, and the right to keep the assets, the Government can then liquidate the assets, and pay the trustee for services rendered. If, however, the Government loses the case, and the suspect/owner is found innocent, then the Government should be forced to pay the trustee for services rendered, pay "interest" or "rent" for the use of that property while it has been seized by the Government, and/or compensate the owner/suspect for any loss in value of the seized property.
I think this would be a fair process, and not too difficult to set up within our Government. To do it probably will require some US Supreme Court decisions to make it happen.
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