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Criminal law reform: reining in a War on Drugs enforcement tool

On Behalf of | Jan 20, 2015 | Asset Forfeiture, Firm News

The so-called War on Drugs that was announced by government officials many years ago stressed a hard-line enforcement and sentencing approach across the country that has had strong and lingering effects to this very day.

One tool that has been used with a vengeance by federal and state law enforcers in their targeting of persons alleged to be involved in drug crimes is a federal civil forfeiture law enabling asset seizure.

That legislation allows authorities to summarily seize and sell the property of an individual who is merely suspected of engaging in criminal activity. No duty is imposed upon law enforcers to establish guilt or even present any evidence of wrongdoing, and a person who suffers a property loss through seizure bears a presumption of legality in seeking to get it back.

Put another way: Any individual contesting asset seizure must prove lawful ownership of seized assets.

That turns the time-honored criminal law maxim stressing the presumption of innocence on its head, replacing the duty of government officials to prove criminal activity beyond a reasonable doubt with an exaction placed upon the accused to convince a court or jury of legal conduct.

That is understandably controversial, and the practice has been pointed to with alarm by a wide swath of civil liberty advocates.

What many find especially galling is that state and federal enforcement agencies have in many instances sold the seized assets and simply kept the profits. Reportedly, sales resulting from seizures have amounted to billions of dollars.

Government authorities are not oblivious to the many criticisms surrounding asset forfeiture. Attorney General Eric Holder stepped forth late last week to announce a major development regarding asset forfeiture law. Holder stated that federal forfeiture law can no longer be the basis for property seizures conducted by state and federal officials.

The change, while being obviously material, does come with a caveat, though: There will be an exception for seized goods that are deemed a potential threat to the public’s safety.

Holder calls the new policy “the first step in a comprehensive review.”

Source, Time, “Feds limit law that lets cops seize your stuff,” Charlotte Alter, Jan. 16, 2015

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