This fall the Supreme Court will hear arguments in a case about civil asset forfeiture--actually, about one aspect of forfeiture, namely, whether you're entitled to a hearing on the question of whether the government can keep your stuff during the time it takes for a judge to decide whether they're allowed to take it. Suppose cops take your car. You're entitled to a trial on whether or not they had the right to do that. But a trial could take months or even years. What happens to the car in the meantime? That's the question the Court will decide--and the Goldwater Institute filed a brief yesterday urging the Court to give people a hearing on that question. We also took the opportunity to discuss the injustice of forfeiture more broadly, and to explore how America's founding fathers knew that forfeiture would undermine government's legitimacy and actually encourage lawbreaking.
I have an article in Townhall.com today about the case. Here's an excerpt:
Perhaps worse than all of this is the way forfeiture undermines the legitimacy of law enforcement itself. When citizens see officers as profit-seeking predators rather than disinterested protectors, it generates resentment that can grow into what sociologists call “legal cynicism.” People become reluctant to call the police when in need, relying on vigilantes, instead—and they begin to sympathize with lawbreakers, sometimes helping them conceal their crimes. There’s nothing new about this: in 1790, James Wilson, a signer of the Constitution, warned that forfeiture is so unjust that people view it with “sentiments of pain and disgust”—sentiments which eventually lead them to engage in “a deadly feud with the state.”
The pendente lite principle adds still more injury: it lets officials keep property before that confiscation has even been deemed legal—which can take a long time. That means that even if the owner ends up winning her case and getting her property back, the delay may have rendered it worthless. In one case, prosecutors tried to seize an entire company pendente lite, promising that they’d return it if the court later decided the taking was invalid. The court rejected that notion, pointing out that “the business itself would at that point be drained of any good will by the summary closing, because the old customers would by then have resorted to new places.”
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