The Goldwater Institute published my new policy analysis, “Predators, Not Protectors: How Asset Forfeiture Undermines the Legitimacy of Government” this week. In it I argue that civil asset forfeiture doesn’t just violate basic principles of due process but undermines’ the government’s claim to political legitimacy, by giving citizens good reason to think of law enforcement as a predator or an occupier rather than a force devoted to preserving the peace. I point out that the Constitution was written to prevent the governing powers from using their authority to enrich those in power, and that asset forfeiture, by allowing government to fund itself not through democratically-enacted taxes, but through targeted extractions of wealth from people who have committed no harms, crosses that line.
Government legitimacy is to be distinguished from “police legitimacy,” a related concept that assesses the people’s willingness to accept and cooperate with law enforcement. Many scholars have pointed out that forfeiture practices undermine police legitimacy, especially in poor communities that see a lot of arbitrary policing, and that this leads to vigilantism and cynicism toward the police. I take this one step further and argue that this cynicism, when well-grounded, is a factor that can render the government itself illegitimate—a point the American founding fathers understood, given that they were familiar with (and abhorred) asset forfeiture practices.
Excerpt:
Because [forfeiture] admiralty cases were not considered criminal cases, they were not governed by the same standards of fairness that apply to criminal law. Courts could simply confiscate a ship belonging to an owner who had committed no crime or was unaware that a crime had been committed. Owners were not entitled to the presumption of innocence or to jury trials….
America’s Founding Fathers regarded admiralty law with suspicion for just this reason. Many of them experienced its harshness themselves. In the 1760s, when the Parliament adopted the Stamp Act, the Sugar Act, and the Townshend Acts, all of which imposed burdensome taxes on the American colonies, it also expanded the power of the British admiralty courts to enforce these measures. This meant admiralty courts could preside over cases not involving the high seas—with the result that Americans would be denied the procedural rights they were usually entitled to, would not be entitled to trial by jury, and would be presumed guilty until they proved themselves innocent. Admiralty judges were even paid commissions based on the forfeitures they imposed, meaning that if they upheld the confiscation, they received a cut of the property.
The American patriots objected that expanding the admiralty system violated the Magna Carta’s protections for due process, and they even referred to these courts in the Declaration of Independence itself when they complained that the British monarchy had “subject[ed] us to a jurisdiction foreign to our constitution and unacknowledged by our laws,” and had “depriv[ed] us, in many cases, of the benefits of trial by jury.” In fact, John Adams called the expansion of the admiralty courts “the most grievous” of all the abuses the crown imposed before the Revolution.
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