OK Beacher - you're absolutely right on some points - there are two classes of forfeiture - what is know as "civil" (
in rem) and what is known as criminal or
in personam. You're referring to the latter - I was referring to the former. And yes, there do appear to be some horror stories attached to the latter - a lot in fact, now that I go looking. Some of the case law I've looked at has defendants who got off on technicalities - they weren't exactly the "good guys" - which is what this law apparently allows. But there also appear to be plenty of truly innocent victims, who as you noted, have had to go to court to
prove their innocence.
"Important differences exist between in rem and in personam forfeiture. First, while in personam forfeiture requires a criminal conviction of the property's owner, an in rem proceeding only requires the government to prove that the property was used for an illegal purpose or that the property constitutes contraband. Second, the government bears a lower burden of proof in an in rem forfeiture action than it does in an in personam action. Since an in personam action is criminal, the government must prove the charges against the defendant beyond a reasonable doubt. In an in rem action, on the other hand, only proof by a preponderance of the evidence is required."
Is there abuse? Undoubtedly. Is it a bad law? Seems counter to many of our basic rights and freedoms - it assumes that the "property" (rather than the person) is guilty until proven otherwise. It is a law designed to discourage drug trafficking, supposedly. Is it effective? Are any of the drug laws in the US effective? I would reply "not particularly" to the last two items...but that is a whole 'nother ball of wax.
One of the cases under consideration, where the defendants were not convicted (in fact the charges were dropped):
http://www.aoc.state.nc.us/www/public/coa/...02/011357-1.htmThe reasons why the case was dropped are not clear in the ruling from the NC Supreme Court ruling on the property forfeiture - one has to assume/hope that there was sufficient evidence to to prove that the property was used for an illegal purpose. I couldn't find any more information on this particular case, unfortunately. It does appear that the
state laws regarding forfeiture vary considerably - NC's are "in personam" - though it would appear that NY's are different again - see the Cato institute book review below. The real trouble comes when the local jurisdiction hands the forfeited property over to the federal agencies...at which point it would appear that different rules may apply. And the federal agency, in these cases, "splits the pot" with the local agency (original arresting/seizing agency). So, there is some incentive to hand things off to the feds, isn't there, if you happen to be an agency that otherwise wouldn't be able to keep the stuff without a conviction? Oh what a tangled web!
More:
http://www.usdoj.gov/dea/programs/af.htm (What the DEA says)
http://www.druglibrary.org/schaffer/dea/pu...iefing/3_13.htmhttp://reason.com/0107/ci.ml.railway.shtmlInteresting review published in the Cato Journal (journal of the Cato Institute, a conservative/libertarian think tank - whom I often violently disagree with - but in this case, their case for less government is probably well-founded and well-argued.)
http://www.cato.org/pubs/journal/cj16n1-10.htmlWhere's Randy when we need him??
At any rate, given the timetable for forfeiture, I still think that the 6 weeks in and of itself is highly suspicious - the wheels of justice tend to grind a little more slowly than that.
