"...law enforcement agencies get to keep forfeiture proceeds. Such a windfall, critics say, creates perverse incentives..."
'Critics' say? Is there anybody who doesn't concur with this assessment? It seems like a flat, unambiguous fact.
This toxic style of perspective hijacking is a huge part of the problem. It's always, "[government interest] says sky is green; critics say blue. The facts remain elusive."
> Is there anybody who doesn't concur with this assessment? It seems like a flat, unambiguous fact.
Many things that one person feels are flat and unambiguous are perceived otherwise by other people. To use an extreme example, some people think torture is unambiguously evil; some people think it depends on the circumstances; others think it's legitimate vengence on enemies.
There are very many law enforcement officials who use this tool, legislators who pass these laws, and a large segment of the public who trusts and supports law enforcement; they all might feel otherwise about these practices.
I think good reporting should challenge our perspectives by introducing us to others that are outside our usual worldview. Be suspicious of reporting that doesn't challenge your beliefs; they might be kissing your a--; you might be in an ideological bubble.
> Critics' say?
The idea must come from someplace, and it's important to say from where so that you can judge its credibility. Either the reporter hears someone else say it or invents it him/herself; the latter is the job of op-ed writers.
I do agree this idea can be taken too far ('experts say that the Sun appears first in the East every morning') but I'm not sure it's a problem in this case.
And I'm not saying either that I disagree with the policy or that I view it as likely to fail in an empirical sense (although both are true).
Instead, I'm pointing out that the fact that allowing law enforcement to keep the proceeds does indeed create an incentive for LEOs to do the wrong thing.
I think everybody agrees on that point. LEOs can point to a number of counter-incentives, as well as their own good intentions, as measures that can ameliorate this bad incentive, but I don't think anybody will disagree that it exists.
> create an incentive for LEOs to do the wrong thing.
What's the "wrong" thing? You and I agree, by the way, but unfortunately I'm pretty certain that many people -- more than I am comfortable with -- do not.
Instead of just thinking about the issue lets fill our minds with simulations of all the other minds and their thoughts about the issue. That way we can be considerate of everyone's point of view. Then we can assert the insensitivity of anyone who just thinks until everyone is simulating minds that merely simulate other minds and actual thought is entirely eradicated.
Wow. I love this comment. I didn't realize until now how frustrated I've been about this exact phenomenon happening around me, especially in the software community.
"The report finds that CIA detainees subjected to what were then called “enhanced interrogation techniques” either produced no intelligence, or they “fabricated information, resulting in faulty intelligence”. It says that the CIA’s own interrogators “assessed that the most effective method for acquiring intelligence from detainees, including from detainees the CIA considered to be the most ‘high-value’, was to confront the detainees with information already acquired by the intelligence community”."
You can attempt to ignore this fact and argue whether we should or shouldn't torture people, but at that point you are arguing whether we should or should not submit people to gruesome deaths because we think they may have done something wrong (with little to no evidence.)
It creates incentives, but whether they're perverse is a matter of perspective.
A perverse incentive is an incentive that has an unintended and undesirable result which is contrary to the interests of the incentive makers.[1]
It's common to believe that law enforcement makes mostly just decisions, even when deciding whom to accuse[2]. To voters with this view, the incentives are exactly aligned with their interests.
However, for the purpose of understanding the 'interests' of the incentive makers, it's notable that we're talking about executive action, pursuant (however shakily) to law passed by congress, pertaining to the specific act of seizure ("forfeiture") of property.
The 'interest' (or, more charitably, the 'intention') is to combat crime.
Thus, if law enforcement has an incentive to do something other than combat crime, which again, I don't think anyone disagrees they do under such a framework, then the incentive is indeed perverse.
The only way that this incentive is consonant is if the original intention was to enrich law enforcement agencies, which nobody claims was the impetus for these policies.
I agree. Your post reminded me of the welcome post for a new blog started by First Look Media that was apparently created "...to tell the unofficial story, one that describes the reality of U.S. politics as accurately as we possibly can."
I'm sure there are law enforcement officers that disagree that there are perverse incentives. So the reporter has to quote somebody, he can't just state it as fact.
There are people who disagree that the world is round, but journalists don't generally have to pretend like there are multiple possibilities there. What's the threshold supposed to be?
I doubt this. I surmise (and I'm imagining my LEO friends talking to me in my head) that they might say, "there are safeguards in place" or "I didn't take this job to go around stealing things from honest people," but I think that they will acknowledge that these (and other similar) measures are just counter-incentives.
Regardless of how well they work, and the success or failure of the policy generally, this particular configuration (law enforcement receiving the proceeds) is indeed an incentive for them to do the wrong thing (ie, "perverse"). I really don't think anybody disputes that.
Those LEOs are deceiving themselves (to put it gently). They can plausibly believe that the perverse incentives aren't bad enough to be scrapped for other allocation policies, or that the police recruit only those who can resist those incentives, but there's no basis to object that the incentives themselves don't exist.
The fact that downside X can be overcome does not mean X does not exist.
Are the perverse incentives actually problematic in practice? Okay, that claim can be the sole province of "critics", but not the one about whether they exist.
Many supposedly simple and obvious facts require a scientific study to actually prove, even if it seems like they'd be true in theory. "Critics say" is safer when the reporter doesn't have time or space in the article to prove something. Sure, an in-depth report would be better, but not when it gets in the way of getting an article published with what you have.
The above article doesn't leave out the fact that this seizure was initiated two months after the policy change. Looks like the policy has only changed on paper.
It also doesn't fail to mention that the justification for the gag order was to prevent tipping off the suspect, but it has already been established that McLellan committed no crime, so its explicitly being used to keep this from the public's attention.
It's unfortunate that NYT is so bad at reporting the relevant facts.
Civil forfeiture law is one of the most despicable aspects to our current system. The echoes to monarchy and state power greater than individual rights is too much. If you are in the US, this is exactly what smarter people before us crossed the ocean to get away from.
> Civil forfeiture law is one of the most despicable aspects to our current system.
And yet, under Democratic and Republican presidents; under Democratic and Republican House control; and under Democratic and Republican Senate control, the policy persists. Why is that? How much power do these agencies have over the elected officials?
“Your client needs to resolve this or litigate it,” [prosecutor Steve] West wrote. “But publicity about it doesn’t help. It just ratchets up feelings in the agency.”
My jaw dropped when I read this.
Dear Mr. West: your job isn't about your feelings. And it certainly isn't about your need to be right or your refusal to admit a mistake. You need to grow up -- and I also think you need a new job.
Yeah I was about to quote & comment on that same part. Who cares about your stupid feelings? This is a legal case, that's not how it's supposed to work.
Yes, this struck me too. I really don't care about "feelings" at the agency nor should he. His job should be to approach justice. If it's not, get the bum out.
"the prosecutor on the case, Steve West, was unmoved. Notified of the hearing by Mr. McLellan’s lawyer at the time, he responded with concern that the seizure warrant in the case, filed under seal but later given to Mr. McLellan, had been handed over to a congressional committee...
'Your client needs to resolve this or litigate it,' Mr. West wrote. 'But publicity about it doesn’t help. It just ratchets up feelings in the agency.'"
That's pretty breathtaking. He's admitting that complaining to one's elected representatives in government about what is admitted to be an abuse of government power will result in those agents retaliating against you. So shut up and pay us, peasant.
They start out with the "guilty until proven innocent" maxim that civil forfeiture operates under and then convince themselves they're doing you a favor by taking all your money and returning half of it.
It really doesn't matter whether or not the President nominated Lynch. The sad reality is the Senate was too chickenshit to "just say no".
In the President's defense, the USA has a long and sordid history of bad Attorney's General. I'm sure that Lynch is nowhere near the bottom of that list.
"Don’t bother with jewelry (too hard to dispose of) and computers (“everybody’s got one already”), the experts counseled. Do go after flat screen TVs, cash and cars. Especially nice cars."
Ugh. This language sounds similar to the language thieves use in hitting homes.
One thing I never understood -- and these articles don't appear to cover, is how laws enabling civil forfeiture were never struck down as unconstitutional in the first place. Isn't this an obvious disregard for the fourth amendment?
The economics of disputing it don't work for the person who's assets were seized most of the time. Either the amount that was seized is relatively small and it would take several times that amount to battle the government over years. On the other hand say that clean out your whole bank account then you have no assets to fight them even if they took your life savings and it would make sense to fight them.
The way it is portrayed here (I'm not sure if it is portrayed accurately), it is not constitutional.
But civil forfeiture is definitely constitutional as long as you get due process. The NYTimes is wrong in stating you have the burden of proof in these cases, the government does. It's just not as high as a criminal case. The civil burden is the same that govern all sorts of property issues.
There's absolutely no accountability by the government. Nobody is ever prosecuted, reprimanded for these thefts from American citizens. These agency representatives (Lerner) have no fear of congress and thus the checks and balances that would typically be in effect are meaningless.
Until these agencies have their budgets severely slashed (like someone would get a fine for breaking the law), there's no hope that these bureaucratic thugs will change their ways.
A few criminal prosecutions for abuse of office and forfeiture of pensions would do even more. But you are right. Many government bureaucrats feel completely unaccountable to the populace, and this needs to change.
It wasn't, and arguably is not in any way constitutional. This became a thing mostly after 9/11. Terrorism and drug laws were significantly expanded in scope. For years the public was looking the other way - distracted by fear - while the government began openly breaking or bending the law, almost without any concerns.
During that time, many behaviors became routine (with or without actual laws backing the behavior up) that have extremely questionable legal standing, and typically zero moral standing.
Asset forfeiture rates were actually significantly down in the years immediately following the September 11th attacks. It wasn't until 2006 that annual forfeiture recoveries reached the rates they did during the 90s (at which point, yes, they increased sharply — nearly quadrupling in just two years). [1]
As for the constitutionality of asset forfeiture, you'll have to take that up with SCotUS, who've (unfortunately) rather consistently disagreed with you.
Well, he can try to sue, but it's complicated because the case isn't against him, it's a case against the money, and probably named something like "United States vs $107,702.66". He's a third-party claimant.
If you're thinking that this sounds an awful lot like "guilty until proven innocent" then you can find loads of really fun reading over with our libertarian friends at http://reason.com/tags/asset-forfeiture where they've been raising alarms about the trend since 1989 (long before its abuse in places like Ferguson, MO made talking about it cool)
Not only are corporations people, money is people, my friend. This means that money has free speech, which probably has recursive implications for campaign fundraising.
Seriously - has the idea of an object without will being named a defendant ever been challenged in the courts? Don't tell me that the person who owned the money has no standing - they certainly had property taken from them.
> Seriously - has the idea of an object without will being named a defendant ever been challenged in the courts? Don't tell me that the person who owned the money has no standing - they certainly had property taken from them.
Funnily enough, the idea of suing the property is actually a well-established legal concept, at least generally [1]. It falls under the "in rem" jurisdiction of the court, which is its power over things, as opposed to power over people (which would be the more familiar "in personam", where a person is named in a suit or complaint).
Where in rem jurisdiction gets problematic is its use in civil forfeitures, for the reasons you say: The presumptive owner of the seized property is in fact readily available (i.e. the person it was seized from), and so any complaint should rightly proceed against them in personam, not against the property in rem.
Also note that the money isn't being named as a "defendant" as such -- a defendant is a party you'd find in a criminal case, and this is a civil forfeiture. In a civil forfeiture, since the complaint is indeed against the property, the owner of the property is a third-party to the case.
At this point the government pretends that the true owner of the property is unknown, so to fight the seizure it's first necessary for you to (a) legally assert ownership, and (b) legally deny the allegations in the seizure complaint. And only THEN can you proceed to the long and costly litigation against the government in which you must actually prove these assertions/denials. If things go well, some months or years later you'll get your stuff back. If you're really lucky, the legal costs won't have exceeded the value involved in the first place.
Meanwhile, in many civil cash seizures, the money has gone straight into the slush fund of the local police department that confiscated it... and the whole thing starts to look like one big end-run around due process and constitutional protection.
BTW, the government/courts also perform criminal forfeitures, which might be what you're thinking of where a confiscation involves a named defendant. For example, a punitive forfeiture doled out to a guilty defendant in a criminal trial.
[1] The legendary case of United States v. Article Consisting of 50,000 Cardboard Boxes More or Less, Each Containing One Pair of Clacker Balls provides an amusing example of the way these suits are styled.
Thanks for the awesome knowledge, law-nerd. To your footnote, I've lost Tell me, why do we have civil forfeiture and civil courts? Other than the second-rate satisfaction when an OJ Simpson gets sued after being acquitted of criminal charges.
The dictionary definition of 'democratic' includes: "available to the broad masses of the people". Between the cost and the knowledge needed, asserting your rights in forfeiture cases is not practically available to the broad masses, i.e. the socialeconomic class that is targeted. This is not democratic.
So if it's starting to look like a constitutional violation, when are we going to see a lawsuit? ALCU should be on this, right? Or while police departments are on the defensive, do we get the political will to roll back the seizure laws that led to this?
I don't defend asset forfeiture for simply making large cash deposits, but on the other hand there is no way a guy selling sandwiches for $2.75 is taking in more than $10,000/day in cash. We aren't getting the full story here.
Making a daily bank deposit is not "structuring" it's a common (and a best) practice. So if he was accumulating cash for a week or more and making large deposits, he was being stupid. Not that it justifies forfeiture, if that's all it was. But something isn't making sense here.
That's the point. The guy _didn't_ make more than $10k in cash /day. His deposits each day were for less than $10k they said that because of that he was trying to evade the 10k reporting limit since he made regular deposits under the limit. ie: they are claiming if you made a daily deposit of say $3,000 that is suspicious and are seizing your money for structuring.
Still not buying. Every fast food restaurant makes at least one, if not several <$5,000 deposits every day of the week. It's completely normal for that type of business. He got flagged for some other reason that is not being disclosed.
Unfortunately, you're perfectly parroting the State's position that assets somehow don't have the presumption of innocence that persons do in the US legal system.
The state should have to prove that the assets are the proceeds of criminality in order to seize them, rather than their owner having to prove otherwise once they've been seized.
'Critics' say? Is there anybody who doesn't concur with this assessment? It seems like a flat, unambiguous fact.
This toxic style of perspective hijacking is a huge part of the problem. It's always, "[government interest] says sky is green; critics say blue. The facts remain elusive."