Civil Forfeiture is the Beast That Won’t Die

Civil Forfeiture is the Beast That Won’t Die

By Mark Nestmann • January 19, 2021

We’ve long criticized the barbaric (yet legal) practice of civil forfeiture, in which police or other authorized government agencies seize your property and then make you prove that the property is “innocent” to have it returned.

Law enforcement don’t need to arrest or even convict you of a crime in order to snatch your cash, your bank accounts, or your home. We’ve compared the practice in past commentaries to elementary school bullies stealing a child’s lunchbox.

Last month, the Institute for Justice published a third update to its superb critique on civil forfeiture, Policing for Profit. The report’s most important conclusions found that:

  • Since 2000, states and the federal government have raked in an astonishing $68.8 billion through civil forfeiture. Numerous states failed to properly report civil forfeiture revenues, so this total significantly undercounts the loot taken through the practice.

  • Law enforcement advocacy groups claim that civil forfeiture is an essential tool to fight crime. But in New Mexico, the only state to abolish civil forfeiture, crime rates haven’t risen since the laws were reformed.

  • Advocates of civil forfeiture claim that its purpose is to target drug kingpins and other big-time criminals. But in at least 21 states, half of currency forfeitures are under $1,300. That’s hardly worthy of the title “kingpin” and simply not worth contesting in court, since the average attorney charges many times that amount to contest a forfeiture.

  • In most states, police agencies get to keep the property they seize, literally creating an incentive to appropriate as much of it as possible. A growing number of states recognize this practice converts cops into bounty hunters intent on maximizing forfeiture revenues rather than preventing or solving crimes. But thanks to the federal “equitable sharing” law, state and local law enforcement can seize property locally, turn it over to federal prosecutors for processing under federal law, and get back up to 80% of the proceeds – regardless of state law restrictions or prohibitions.

A lot of well-meaning people support civil forfeiture. But we’ve found that when they learn the truth about the corrupt incentives it creates for otherwise honest cops, they often change their mind.

It’s also eye-opening to examine the almost surreal origins of the mental gymnastics leading to the legal theory behind civil forfeiture. A tantalizing clue comes within the text of the 1964 federal court decision in United States vs. One 1963 Cadillac Coupe De Ville Two-Door:

“If an ox gores a man that he [shall] die, the ox shall be stoned, and his flesh shall not be eaten… When this ancient concept is recalled, our understanding of the law of forfeiture of chattels is more easily understood.”

District Judge John W. Oliver was referring to an obscure passage in the biblical book of Exodus. The English Standard Version of the Bible translates the original Hebrew text of Exodus 21:28 as:

"If an ox gores a man or woman to death, the ox must be stoned, and its flesh may not be eaten. In such a case, however, the owner will not be held liable.”

The stoning of the goring ox was by no means a forfeiture. The animal was to be killed, and it was forbidden to consume its meat. It was not to be turned into a source of revenue. Indeed, the biblical text implicitly prohibits this option.

But how was a biblical injunction that effectively prohibited forfeiture converted into a justification for it? In the English legal tradition, which America inherited, the transition may be related to a practice recorded in the Laws of Alfred the Great. This document was compiled by King Alfred, who ruled the Wessex region of England in the ninth century A.D. In what was likely an effort to avoid blood feuds between families in the event of an accidental death, Alfred declared that:

"If a man unintentionally kills another man by letting a tree fall on him, the tree shall be given to the kinsmen of the slain."

Over time, though, instead of the instrument of accidental death being given to the victim’s family, it was instead awarded to the king, or to a lord or village in the Crown's name. The offending object was known as a “deodand.”

Justification for the deodand was originally a religious one, according to a 19th century summary of English law. Its value was to be used to pay a priest to offer prayers for the soul of the victim, who having "been hurried out of this world, outweighs the claim of the dead man's kinfolk." Indeed, the word “deodand” derives from the Latin term “Deo dandum,” which means "given to God."

Eventually, the Crown and its agents stopped paying priests to pray for the souls of the deceased. Instead, they simply kept the deodand or sold it to generate revenue. The transition from a religious injunction which effectively prohibited civil forfeiture to a legal tradition which enshrined it into law was now complete.

As the centuries passed, English legal commentators criticized deodand both for its unfairness and because it didn't compensate the families of accidental death victims. In 1846, Parliament ended the practice. However, the repeal only affected the legal form of deodand. It didn't change the underlying principle that property could be held accountable for a crime without reference to the owner's culpability. That principle is fundamental to the modern law of civil forfeiture.

Deodand never became part of American law. However, the English Navigation Acts imported the “guilty property principle” into colonial America. These laws required that all goods imported into or exported out of English colonies be shipped in English-owned vessels. The captain and at least three-fourths of the crew were required to be English or residents of English colonies.

Having even one crewmember less than the three-quarters English majority required could make the entire vessel and its cargo forfeitable. The Crown used the procedural tactic of casting the forfeiture action as a civil proceeding in rem, or "against the thing." In effect, these laws arrested the vessel and its cargo, rather than its owner.

In rem forfeiture proceedings provided the Crown with several unique advantages:

  • A seizure was authorized in an ex parte hearing (without the defendant or defendant's lawyer being present). The property owner didn't need to be informed of this hearing. He thus couldn't attend it, much less contest the seizure.

  • At the secret hearing, the government could introduce hearsay evidence from confidential informants to establish probable cause, which the owner had no way of rebutting.

  • Once the government established probable cause for forfeiture, the burden shifted to the owner to demonstrate that the property wasn't forfeitable.

  • The owner needed to post a bond to challenge the forfeiture and adhere to the strict rules of Admiralty procedure in his pleadings.

  • There was no right to a trial by jury.

John Adams and other American leaders of the revolutionary period bitterly criticized the denial of jury trials in proceedings under the Navigation Acts. But with only relatively minor variations, these procedures continue today throughout America. And they’ve led to the confiscation of nearly $70 billion in assets since 2000.

Policing for profit is an enormous revenue source for local, state, and federal law enforcement authorities. Despite the continuing reform efforts by organizations like the Institute for Justice, we don’t foresee the practice ending anytime soon.

How can you prevent police “forfeiture squads” from confiscating your wealth? If you were bullied at school as a child, one strategy you probably quickly learned was to avoid the bullies. As an adult, you can keep your property away from government bullies by holding some of it offshore. With the civil forfeiture racket booming, we can’t think of a better reason for going offshore.

Protecting your assets (and yourself) against any threat - from the government, the IRS or a frivolous lawsuit - is something The Nestmann Group has helped more than 15,000 Americans do over the last 30 years.

Feel free to get in touch at service@nestmann.com or call +1 (602) 688-7552 to learn how we can help you.

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About The Author

Since 1990, Mark Nestmann has helped thousands of clients seeking wealth preservation and international tax planning solutions. He is the author of highly acclaimed Lifeboat Strategy and other books & reports dealing with these subjects.

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