PRESIDENT
TRUMP CAN DO THIS AND PLEASE BOTH CONSERVATIVES AND CIVIL LIBERTARIANS,
By George Leef
11/15/16
During his speech after the election results had made it clear
that he would be the next president, Donald Trump promised that he would be
“president for all the people.”
No winning candidate ever says otherwise, but once in office
they usually proceed to enact a host of laws that make things better for their
most vociferous supporters while doing little or nothing for ordinary Americans.
The “president of all the people” promise is soon forgotten.
There are many actions that Trump could take to make life better
for ordinary people whether they supported him or not. One of them would be to
reform civil asset forfeiture law and pull the plug on the federal government’s
“Equitable Sharing” program that encourages state and local law enforcement
agencies to collaborate with the feds in seizing property from people who have
usually done nothing wrong.
Under civil asset forfeiture laws, the government can seize a
person’s property – ranging from cash to cars all the way up to real estate –
merely by asserting that the property was somehow involved in or resulted from
the commission of a crime. The owner need not even be charged with much less
convicted of any criminal action, and once the property has been taken, the
government makes it as difficult as possible to ever get it back.
Civil asset forfeiture is an affront to due process of law. It
can victimize innocent people no matter their race or ethnicity and no matter
whether they’re well-to-do or poor. Most often, however, the people who have
their property taken under civil asset forfeiture are poor and minority. And
unless they’re lucky enough to get free legal help from an organization such as
the Institute
for Justice, those people have
little chance at successfully battling through the system to get their property
back.
I have written frequently about that problem. Here, for
instance, is a piece from last September on the devilish system in Arizona.
Civil asset forfeiture is not just a state problem. Federal law
also allows civil asset forfeiture and its “Equitable Sharing” program
encourages state and local law enforcement to collaborate with federal
officials, allowing them to keep a large chunk of the value seized.
Radley Balko explained the way “equitable sharing” works in
this Washington Postarticle: “Under the program, a local police
agency need only call up the Drug Enforcement Administration, Bureau of
Alcohol,Tobacco, Firearms and Explosives or similar federal agency. That agency
then ‘federalizes’ the investigation, making it subject to federal law. The
federal agency then initiates forfeiture proceedings under the laxer federal
guidelines for forfeiture. The feds take a cut and then return the rest – as
much as 80 percent – back to the local agency.”
This is a neat way for state and local authorities to evade the
laws now in place in many states that attempt to reduce the incentives for
using civil asset forfeiture as a means of padding local budgets – what the
Institute for Justice calls “policing
for profit.”
Equitable sharing was put on hold for several months late last
year and into this spring when the account to pay out the funds was out of
money. But as soon as the account once again had the money, the Department of
Justice resumed the program. That dashed hopes that it might just languish
since the relevant statute (21 U.S.C. Sec. 881(e)) authorizes but does not
require the Attorney General to make transfers to state and local law
enforcement entities.
Among those expressing disappointment was Wade Henderson,
president of the Leadership Conference on Civil and Human Rights He stated, “We are deeply
disappointed that the Department of Justice has resumed this pernicious program
that incentivizes police to essentially steal from the people they are charged
with protecting. Current federal forfeiture rules create a financial incentive
to pursue profit over the fair administration of justice, facilitate the
circumvention of state laws intended to protect citizens from abuse, encourage
the violation of due process and property rights of Americans, and disproportionately impact people of
color and those with modest means.” (Emphasis added.)
Trump has a great opportunity to put an end to “equitable
sharing” and reform civil asset forfeiture at the federal level by pushing for
quick passage of reform legislation. Bills have been introduced in both the
House and Senate that would dramatically change the law. The Fifth Amendment Integrity Restoration Act would get rid of equitable sharing,
raise the standard of proof required before government agents could seize property
from mere “preponderance of the evidence” to “clear and convincing” proof,
impose upon the government the burden of proving that the owner actually used
the property in a criminal act or knowingly consented to it (thus preventing
the typical case where a wholly innocent individual loses property because of
illegal acts by someone else), and make other changes so the law is more just.
The need to defang civil asset forfeiture is one of those rare
issues where there is agreement across the political spectrum. If Donald Trump
wants to show that he is serious about being president “for all the people,”
pushing a reform that protects the rights of all citizens and especially
individuals in minority communities would be an excellent move. Originally published
on Forbes.
http://affluentinvestor.com/2016/11/president-trump-can-please-conservatives-civil-libertarians/
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