Editorial: Forfeiture of property should be tied to a conviction

A couple of weeks ago we editorially bemoaned the fact that no one had introduced a bill in the state Legislature to restrict the practice of law enforcement agencies seizing private property — homes, cars, cash and such — under the presumption it is the product of criminal activity, but without ever having to actually go through the due process of convicting someone of a crime — a process called civil asset forfeiture.

That same week state Sen. Don Gustavson of Sparks filed Senate Bill 358 that would require proof of a criminal conviction, a plea agreement or an agreement by the parties concerned before property could be forfeited.

Humboldt deputy seized cash

The bill is almost identical to a bill Gustavson and James Settelmeyer of Minden sponsored during the 2015 legislative session. By the time that bill came out the legislative sausage grinder it merely required police agencies to report their confiscations to the state. As the law currently reads, property may be confiscated and kept or sold without the property’s owner ever being convicted or even charged with a criminal offense.

Though the Fifth Amendment provides: “No person shall be … deprived of life, liberty, or property, without due process of law …” police agencies in cooperation with federal law enforcement have for years coerced people into surrendering assets that become the property of the agency — a perverse incentive indeed.

Gustavson’s bill “provides that property is subject to forfeiture only if the underlying crime provides  for such forfeiture, and there is: (1) proof of a criminal conviction; (2) a plea agreement; or (3) an agreement by the parties.” It also “requires the State to establish that seized property is forfeitable by clear and convincing evidence.”

Gustavson testified before the Senate Judiciary Committee this past week, “Under current civil forfeiture laws, law enforcement can seize your cash or other property, sell and then use most of the proceeds however they see fit, even though you are never arrested or even charged with a crime. Passage of Senate Bill 358 does not limit law enforcement’s ability to combat drug cartels and other criminal activity. The intent of this legislation is to protect the innocent individual’s liberty and property right and to keep law abiding citizens from becoming entangled in the process that results in their rights being trampled. An innocent tourist driving back to Utah after winning a $1,000 jackpot at a local casino can have his money confiscated though he or she has not been accused of any crime.”

Lee McGrath, legislative counsel for the Institute for Justice, which has advocated civil asset forfeiture law reform for years, also testified. He said law enforcement has the power to take the fruits of criminal activity but that it should be done via criminal forfeiture rather than civil forfeiture.

“The appropriate process that is due is criminal forfeiture,” McGrath said. “It makes sense to charge, arrest and convict the suspect of a crime. If convicted in the same courtroom, the same judge can turn to the question, and it should be an easy question, of whether the cash, whether the vehicle are the proceeds and the instruments of a crime.”

The attorney general’s office, various law enforcement officials and district attorneys testified against the bill, saying the current system is not abused, though others testified to the contrary.

There is a case pending in the courts in which Texas police seized $200,000 in cash, claiming it was the profits of illegal drug trade, though the owners said it was from a the sale of a house. The bill of sale was with the cash. No one was ever convicted of any crime and the police still have the money.

Justice Clarence Thomas wrote a six-page commentary on the Texas case sighting the evils of civil asset forfeiture, “These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings. … Perversely, these same groups are often the most burdened by forfeiture. They are more likely to use cash than alternative forms of payment, like credit cards, which may be less susceptible to forfeiture. And they are more likely to suffer in their daily lives while they litigate for the return of a critical item of property, such as a car or a home.”

Nevada has its own record of suspect civil asset forfeiture cases. Over a two-year period Humboldt County deputies seized $180,000 in cash from motorists.

Some states have passed laws similar to the one being advocated by Gustavson to curb the extortionate practice by police by requiring an actual criminal conviction before assets may be taken. This bill is needed to protect citizens and assure due process.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

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38 comments on “Editorial: Forfeiture of property should be tied to a conviction

  1. deleted says:

    Any word on the chances to pass? I’m pulling for it FWIW.

  2. Law enforcement opposed and it was gutted two years ago.

    I give up: FWIW.

  3. Bill says:

    This bill should be supported. Allowing law enforcement to seize and forfeit property without judicial action is an invitation to law enforcement to engage in corrupt practices. Under our Constitution, an individual is supposedly cloaked with the presumption of innocence until proven guilty, Allowing forfeiture without conviction or without a judicial proceeding says that despite your own presumption of innocence, you are not in fact innocent, because forfeiture is saying that the property you have in your possession is pesumed to be the product of (your) crime.

  4. Bill says:

    More info on “forfeiture”. Each year, law enforcement agencies seize billions of dollars’ worth of cash and property from American citizens. And according to the Institute for Justice, law enforcement agencies in 13 states and the District of Columbia don’t even have to report or record the value of the property they confiscate.

    Just one example: The Southern Poverty Law Center found that agencies in nine Alabama counties (roughly 30% of the state’s population) seized over $2 million in 2016. And most of the time, the state was able to keep the cash after obtaining a court order.

    To top it off, because of Alabama’s lack of reporting requirements, there’s no way of knowing the actual value of all the other assets seized — including cars, computers, jewelry and more — or even why they were seized.

    Clearly, civil asset forfeiture is an outrageous system that’s desperately in need of reform. Sen. Rand Paul and Rep. Tim Walberg have recently reintroduced legislation to do that, titled the Fifth Amendment Integrity Restoration Act, but reform (if it does pass) doesn’t happen overnight.

  5. Rincon says:

    “Law enforcement opposed and it was gutted two years ago.” I suspect most law enforcement personnel are to the right of center. Individual rights, the Constitution, opposing an intrusive government and all that. Just another example of Conservatives changing their stripes when it’s their ox being gored.

  6. Rincon says:

    Speaking of which, as most of you know, because of Congressional action, in the words of the Economist: “Internet service providers will be able to share browsing histories,and financial, health and location data without users’ consent and without offering an opt out.” The logical next step is to allow telephone companies to record and sell telephone conversations.

    Interesting that there are no complaints about it in this space. Conservatives are very prickly about governmental intrusion, but when it’s corporate intrusion, they’re apparently all for it. I’ve got news for you. While you weren’t looking, corporations have become our government.

  7. deleted says:

    Rincon: left unsaid is that the police are incentivized to seize property in this fashion because they are typically the ones that gain when they do.

    The practice also takes some small measure of pressure off legislatures that know a “non-taxpayer” source of funding is available to these law enforcement agencies which makes their jobs easier.

    Two powerful constituencies lined up against these sorts of laws, make them tough to pass.

  8. deleted says:

    Not looking? Come on Rincon, conservatives rejoice at the idea. How else could you explain their position about “corporate rights”? Sure ain’t in any constitution I ever read. But tell that to most conservatives here and mostly what you’ll get is…well, not much other than “corporations are people too”.

    And you are surely right that we no longer, even as a government, have the power to stand up to corporations.

    Thomas Jefferson talked a lot, and that makes for lots of contradictions in what he said, but one of my favorite things was that we ought to strangle, in their infancy, these corporations that would seek to challenge the federal government. Conservatives don’t much cotton to that lesson from this “beloved” founding father.

  9. Steve says:

    On the issue of current forfeiture laws, there is no (or should not be any) partisan disagreement.
    Patrick, Mitch, Bill (Stoner too) and I all agree. This needs to be stopped.
    Rincon, LE’s are people. They have the same political divides as anyone. Prejudging all cops is simply wrong. ( and bad liberalism…or bad moderatism….just bad to do. Stop trying to lump everyone into groups just so you can attack)

    On the issue of ISP law (other than it is another attempt to change a subject). Rincon needs to know, that Obama era privacy law was never enacted and most ISP’s already had privacy policies that easily meet or exceed that law. Things remain the same as they ever were. Your ISP was always able to sell your info and it still may if it chooses to do so. The trouble with the Obama era law was its choice of enforcement agency.
    The FCC is a weak enforcer of such policy. The FTC is a better and more powerful tool to enforce such a law on ISP’s and it should apply equally to websites like Facebook and Google as well.

  10. Bill says:

    You are right as to the incentive for law enforcement to want forfeiture laws. There is a certain righteous ring to the idea of crime and criminals paying for the administration of criminal justice. Thus, forfeiture laws have the appeal of being “law and order” remedies. What is overlooked is that as presently written they eliminate due process, which is arguably, an unlawful act in of itself.

  11. […] Forfeiture of property should be tied to a conviction A couple of weeks ago we editorially bemoaned the fact that no one had introduced a bill in the state Legislature to restrict the practice of law enforcement agencies seizing private property — homes, cars, cash and such — under the presumption it is the product of criminal activity, but without ever having to actually go through the due process of convicting someone of a crime — a process called civil asset forfeiture. […]

  12. Rincon says:

    “The FTC is a better and more powerful tool to enforce such a law on ISP’s and it should apply equally to websites like Facebook and Google as well.” Perhaps, but the Republican legislature appears to have insured that there will be no limitations on ISP’s for now. Deleted is correct. Conservatives see few hazards in life other than our government.

  13. Steve says:

    “no limitations on ISP’s for now”

    You ignored the rest of my information, Rincon. The law was never enacted. All the existing limitations remain, just as they were all along.

    The only significant change would have been a requirement they ask you before selling information.
    Currently they must offer an opt out and all of them do. In fact, Comcast publicly stated their privacy policy and COX policy is the same . Neither of these major ISP’d will sell any of your information to any outsiders.
    Both have opt out sections on their privacy pages.

    As usual and par for your course, Rincon. You have decided to hype the shit out of this very minor issue.

  14. Rincon says:

    America’s Congress overturned recently enacted Internet privacy rules stipulating how Internet service providers can use customer data.” (Economist 4/1/17 p. 8). So all of the existing limitations obviously do NOT remain as they were all along.

  15. Steve says:

    ” recently enacted Internet privacy rules”

    Recently enacted but never implemented, Rincon.

    Get your story straight, you are hyping a minor bit of silliness. Nothing has changed.

  16. Steve says:

    “Passed by the Federal Communications Commission in October, the rules never went into effect. If they had, it would have given consumers more control over how ISPs use the data they collect. Most notably, the rules would have required explicit consent from consumers if sensitive data — like financial or health information, or browsing history — were to be shared or sold.

    These rules wouldn’t have applied to the likes of Google or Facebook”….

    This is from National Public Radio. Read and learn. Nothing has changed.

    http://www.npr.org/sections/alltechconsidered/2017/03/28/521813464/as-congress-repeals-internet-privacy-rules-putting-your-options-in-perspective

  17. Rincon says:

    Your narrow definition of change apparently includes only the past tense. In your mind, the Constitution would have been meaningless at the time of its signing, since no change had occurred. By extension, you would have considered its erasure at the time to be no great loss. What a limited perspective! Now I see why you don’t get global warming. No disaster has occurred yet, so to your mind, there has been no change.

  18. Steve says:

    wow….that’s a reach

    all the way around to another subject, no less.

    Since the was never implemented, no change has occurred, Rincon. This is in no way associated with any of your muddlevisionist wordsmithing.

  19. Rincon says:

    We’re playing your word games again. Regardless of the nits you’re picking, the possibility of abuse is quite obvious when Internet providers are permitted to release intimate details about our Internet activities. As an extreme example, is it possible that Google could threaten -either explicitly or implicitly – to expose Congressmen with embarrassing Internet activities?

  20. Steve says:

    It’s been that way since the 1990’s, Rincon.

    The FCC overseas the availability of communication channels and frequencies. The FCC is technical/engineering in it’s very nature and what it is supposed to ensure functions and is used properly.

    The FTC overseas trade (really, it’s in the very name) the FTC is where such oversight belongs and the FTC has far more authority and power to enforce such controls like forcing ISP’s to switch from their current regulated “opt out” to the much preferred “opt in” for marketing our personal and private information.
    That is my only issue with that law, it would have used the wrong agency for enforcement.
    All such online interactions should be “opt in” rather than “opt out”

    BTW, be careful installing software. Those pre filled option buttons (the square with the check already filled) are “opt out” and that check mark should n’t be allowed to be pre filled……

  21. Steve says:

    ” is it possible that Google could threaten -either explicitly or implicitly – to expose Congressmen with embarrassing Internet activities?”

    Google is not an ISP and would not have been effected by that law.

    You didn’t read the NPR link.

  22. Steve says:

    ISP’s aren’t the real problem. Neither is Google or Facebook or Amazon et al.

    Read this for some real insight to the true problems that really do exist in the net world.
    http://www.theregister.co.uk/2017/03/07/rcm_email_megaleak/

    That law would have had ZERO effect on this shitpile.

  23. Rincon says:

    As it stands now, the ISP’s are not a big problem and you’re right that they aren’t abusing the rights that they presently have to sell our information. Since they aren’t doing it anyway, then why is it a problem to rule that they cannot do it? Since Congress reversed the rule, they must think it’s a good thing to let ISP’s sell our Internet activities to their hearts’ content. Hard to believe that Conservatives agree.

  24. Steve says:

    “Since Congress reversed the rule, they must think it’s a good thing to let ISP’s sell our Internet activities to their hearts’ content.”

    The main reason for reversing that law was the very weakness of using the FCC as the enforcement tool.
    The FTC is a lot more powerful and can act independent of complaints made by victims.
    For the FCC to act, there must first be complaints made by people in the public. This is detailed in part 15, people need to complain before the FCC can act.
    The FTC can act without such limitation.
    Furthermore, the FTC governs and regulates trade while the FCC does not and new regulation may not even be needed for the FTC to act.

    “why is it a problem to rule that they cannot do it?”

    It’s not about the intent, it’s about the functionality and force of such a law.
    The FCC is a weak enforcement tool for such a law.
    The FTC may well already be fully able to make enforcement on current laws and regulation under which it governs commerce and trade.

    Moreover, that Register link describes a far more serious issue that really does effect people all over the internet connected world and should be tackled first. This means forcing all option to add on extra software or allow apps to access information should be “opt in” rather than “opt out”.
    In fact, I believe all such things should be disallowed “op out” across the board.
    Everyone should be asked, up front, if they want to allow their personal information shared anywhere outside the primary transaction.

    EX:
    If you wish to share one of your pets records, you should obtain authorization from the pets owner. In the process of obtaining that authorization you would need to detail all the places and people who would have access to the shared pet’s records. That is “opt in”.
    What we currently have is a need for the pets owner to tell you in writing they do not allow their pets records to be shared outside your practice without said owners authorization. That is “opt out”

    Opt in should be the only available choice for every interaction. But the FCC is a lousy enforcement tool for this.

  25. Steve says:

    And on that privacy note, here is yet another timely article from The Register.
    (As an aside, ISP’s are not the big offenders all the talking heads want you to believe they are. Your own web browser is probably your biggest leak of private information)

    http://www.theregister.co.uk/2017/04/14/ad_blockers_identify_you_to_advertisers/

  26. Rincon says:

    We mostly agree. My complaint is that the Republicans did absolutely nothing to address the real problems. They simply removed a control, albeit somewhat ineffective, and then washed their hands of it.

  27. Steve says:

    Remember, it was never implemented.

    Something not implemented cannot be removed. It can only remain unused.

    And, the reason for this was the weakness inherent in its enforcement mechanism.

    Moreover, ISP’s aren’t a problem when you consider all the real, ongoing activity on the internet today.

    Take a look at how much of your privacy WIN10 sends back to Redmond.
    And no matter what you do to lock it down, any update can make changes that open it back up again.

    Microsoft isn’t an ISP, so how about a law preventing OS writers from using their products to spy on us?

  28. Rincon says:

    As I said, we agree that some semblance of privacy is worthwhile, but you didn’t address the thrust of my comment. Merely disposing of the old regulation and then doing nothing doesn’t sound like a Party that isn’t happy that it didn’t go far enough. Instead, it sounds very much like they’re flipping off the American people and have no interest in this issue.

  29. Steve says:

    Look, this is an inter bureaucracy fight. It has more to do with who controls us than it does with our right to privacy.
    Until 2015 the FTC had jurisdiction over ISP’s the FCC took that away and tried to expand their power.
    Now, the whole thing is back on on the playing field, the FCC and the FTC will need to figure out who has control from here on.
    Before Obama and net neutrality, we had privacy enforced by the FCC. Our data was was considered ours and private.
    Obama’s net neutrality tore that all up and gave our data to the highest bidder.

    This is something I have been well aware of since its inception, planning my path forward to make my data remain as off the grid as I could get.

    The ebb and flow is still in play. It really has nothing to do with Republican or Democrat.
    It is much more about bureaucrats trying to maintain relevancy and control.

    All we can do is stay aware and respond when needed.

  30. Steve says:

    Correction

    “we had privacy enforced by the FCC.”

    Should be
    “we had privacy enforced by the FTC.”

    Sorry, I cannot fire my proof readers, their union won’t let me!

  31. Rincon says:

    “Obama’s net neutrality tore that all up and gave our data to the highest bidder.”

    So far as I have been able to find, Obama’s net neutrality did not address anyone’s right to give our information to anyone. It was all about not allowing ISP’s to sell/rent bandwidth to the highest bidders. http://www.politifact.com/truth-o-meter/promises/obameter/promise/510/support-network-neutrality-on-the-internet/

    Am I missing something?

  32. Steve says:

    Yes.
    When the FCC was chosen to enforce all those things the action regarding privacy on ISP’s was taken away from the FTC.
    When this became a problem for telecoms, they began fighting and there were no public advocates drumming up popular, “grass roots” feedback to make those in congress have to decide between money and votes.

    What we have been handed as a result is no oversight where there used to be the FTC and all their power to react when things get ugly.

    You will like the slant on this but read it with a filter and look for the detail. What we have now is far less than what we used to have. I suggest reading your ISP’d privacy policy…very carefully.

    http://www.theregister.co.uk/2017/04/17/sensenbrenner_blunder_after_privacy_criticism/

  33. Rincon says:

    So the Obama Administration changed the enforcement from the FTC to the FCC? I read your link carefully, but there’s no mention of the Obama Administration. I’m also unclear as to why the FCC has less enforcement power than the FTC. Can you explain?

  34. Steve says:

    “So the Obama Administration changed the enforcement from the FTC to the FCC?”
    It was part of Obama’s much ballyhooed “net neutrality” proposal.

    “FCC has less enforcement power than the FTC. Can you explain?”
    It’s in the way the FCC is constructed.
    For the FCC to take any action they must have written complaints for specific violations. This would have only moved any “opt out” function from your ISP to the FCC. Since all “private” info sold is aggregated, not pointing to one individual, there would never have been any complaints for the FCC to act on.
    The FTC is much more of a watchdog, free to act on it’s own if it detects issues.

  35. Rincon says:

    Thanks Steve.

  36. deleted says:

    And here we had near universal agreement amongst the posters on this board. Even as disperate a bunch as we have.

    Guess the far right wing nuts led by Agent Orange are outside even these parameters. Time for another opinion piece Thomas? Set these fascists “right”.

    https://www.washingtonpost.com/politics/courts_law/apnewsbreak-us-restoring-asset-seizures–with-safeguards/2017/07/18/3a268232-6c1d-11e7-abbc-a53480672286_story.html?utm_term=.138b23359585

  37. […] this past session of the Nevada Legislature Sen. Don Gustavson of Sparks filed a bill that would have required proof of a criminal conviction, a plea agreement or an agreement by the […]

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