This might be a bit of legalese, but it succinctly sums up the arguments against allowing the government to use civil procedures to seize property that just might be somehow linked to a crime, as mentioned in a prior posting.
In a 73-page article planned for publication in an upcoming issue of the Nevada Law Journal, David Pimentel, a law professor at Florida Coastal School of Law, lays out the case against civil forfeiture. Here is an excerpt, without adulteration or interpretation:
“Given the dubious policies behind facilitating property forfeitures, and the due process problems inherent in carrying them out, the more potent question is whether facilitating property forfeitures should be allowed at all. If the taking of such property is to be justified, or even tolerated, it must be for the most compelling public policy purposes, none of which can be demonstrated for facilitating property forfeitures.
“The Supreme Court has upheld them, since the Palmyra case in 1831, and through the Bennis case in 1996, on the ground that the practice of in rem civil forfeiture is strongly entrenched in our legal history. Absent compelling policy reasons to support the practice, it presumably fell of its own weight. Only the Americans continue to pursue this practice with such intensity and zeal. As a result, only Americans are subjected to the self-serving overreaching of law enforcement, who never have to defend their seizures in the overwhelming majority of cases, and who are able to support these activities with the spoils of the practice.
“In light of all of this, Congress should go back to first principles and eliminate facilitating property forfeitures altogether. Their primary public policy justifications — duplicative deterrence and punishment, incentives to third parties to undertake precautions and policing — are the weakest, and the countervailing private property interests are the strongest. Facilitating property forfeitures appear to be a concept whose time has come, and gone.”
Elsewhere in the piece Pimentel writes: “The Fifth Amendment provides that ‘No person shall be … deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation,’ then notes that all too often prosecutors stomp on another part of the Fifth Amendment, the prohibition against self-incrimination, by basically extorting waivers of due process rights. This is done by using the threat of burdensome and excessively expensive litigation.
This illustrated by one of the more disgusting tales of woe from fighting overzealous bureaucrats, as related by the professor. Air charter operator Billy Munnerlyn had one of his planes seized in 1989 after, without his knowledge, he flew a customer carrying alleged drug money. Munnerlyn spent $85,000 on legal fees. He had to sell three other planes to finance getting back the one taken. When he did get it back it had $100,000 in damages, apparently due to the government search of it. But since the government has sovereign immunity, he could not sue for damages. Munnerlyn filed for bankruptcy and closed his business.