In the Washington Post, Radley Balko explains how judges can convict you of crimes you were acquitted on or even crimes you were never charged with in the first place:
Most Americans probably believe that the government must first convict you of a crime before it can impose a sentence on you for that crime. This is incorrect: When federal prosecutors throw a bunch of charges at someone but the jury convicts on only some of those charges, a federal judge can still sentence the defendant on the charges for which he was acquitted. In fact, the judge can even consider crimes for which the defendant has never been charged.
Last week, the U.S. Supreme Court declined to hear Jones v. U.S., a case that would have addressed the issue. The National Law Journalsummarizes the facts:
[A] District of Columbia jury found Antwuan Ball, Desmond Thurston and Joseph Jones guilty in 2007 of selling between two and 11 grams of cocaine, relatively small amounts. They were acquitted on racketeering and other charges that they were part of an extensive narcotics conspiracy.
Yet, when U.S. District Judge Richard Roberts sentenced the three, he said he “saw clear evidence of a drug conspiracy,” and sentenced Ball, Thurston and Jones to 18, 16 and 15 years in prison, respectively — four times higher than the highest sentences given for others who sold similar amounts of cocaine, according to filings with the Supreme Court.
There have been other cases like this, including at least two in which federal judges sentenced defendants for murders for which they were never even charged, never mind convicted. So not only can a judge sentence a defendant for crimes for which a jury acquitted, he can sentence a defendant for crimes for which prosecutors didn’t have enough evidence to charge.
A man in Middlesbrough has been convicted of possessing illegal images of children … in his Manga collection. That is, cartoon drawings in the Japanese style called Manga. Gareth Lightfoot reports on the case for the Gazette:
A jobless animation fan has made legal history as he was convicted of having illegal pictures of cartoon children.
Robul Hoque, 39, is believed to be the first in the UK hauled before court over his collection of Japanese Manga or Anime-style images alone.
He admitted 10 counts of possessing prohibited images of children at Teesside Crown Court.
His barrister Richard Bennett said: “These are not what would be termed as paedophilic images. These are cartoons.”
And Mr Bennett revealed that such banned images were freely available on legitimate sites.
He said: “This case should serve as a warning to every Manga and Anime fan to be careful. It seems there are many thousands of people in this country, if they are less then careful, who may find themselves in that position too.”
Police found the images when they seized Hoque’s computer from his home on June 13, 2012, said prosecutor Harry Hadfield. He said officers found 288 still and 99 moving images, but none were of real people.
They were classified as prohibited images as they depicted young girls, some in school uniforms, some exposing themselves or taking part in sexual activity.
For obvious reasons, the newspaper article does not show any examples of the images in question, but Rob Beschizza warns you not to read his post at BoingBoing if you’re in England, as it does show an image that may or may not have been part of the investigation.
…to oppose the notion of equality of opportunity these days is to be thought some kind of monstrous ultramontane reactionary, a Metternich or Nicholas I, who wants by means of repression to preserve the status quo in amber. Members of young audiences to which I have spoken have almost fainted with shock when I have said that I not only did not believe in equality of opportunity, but to the contrary found the very idea sinister in the extreme, and much worse than mere egalitarianism of outcome. To say to a young audience today that equality of opportunity is a thoroughly vicious idea is like shouting “God does not exist and Mohammed was not his prophet” at the top of one’s voice in Mecca.
Those who believe in equality of opportunity must want, if they take the idea seriously, to make the world not only just but fair. Genetic and family influences on the fate of people have to be eliminated, because they undoubtedly affect opportunities and make them unequal. Ugly people cannot be models; the deformed cannot be professional footballers; the retarded cannot be astrophysicists; the small of stature cannot be heavyweight boxers; I don’t think I have to prolong this list, as everyone can think of a thousand examples for himself.
Of course, it might be possible to level the field a little by legislating for equality of outcome: by, for example, insisting that ugly people are employed as models in proportion to their prevalence in the population. English novelist L.P. Hartley, author of The Go-Between, satirized such envious suppression of beauty (and, by implication, all egalitarianism other than that of equality under the law) in a novel called Facial Justice. It’s not a very good novel, as it happens, but the idea is very good; Hartley envisages a state in which everyone aspires to an “average” face, brought about by plastic surgery both for the abnormally ugly and the abnormally good-looking. Only in this way can the supposed injustice (actually it’s unfairness) of the genetic lottery be righted.
Hartley’s novel is a reductio ad absurdum of a pernicious idea. By contrast, Roosevelt’s “measurable quality of opportunity” is roughly achievable by human design: only roughly, of course, because some (though few) will still be excluded biologically, and there are (again few) upbringings so terrible that they preclude opportunity for the person to become anything much. But the aspiration to deny no one a “measurable quality of opportunity” is not intrinsically nasty, as is the insistence on equality of opportunity. On the contrary; our problem is, however, that the political arrangements needed to bring this about already exist in most Western countries, and still we are unhappy or discontented. Thus we — many of us, that is — attribute our unhappiness to inequality of opportunity for fear of looking elsewhere, including inward.
Jan MacVarish discusses the problems facing today’s parents that inhibit natural parenting instincts and replace them with the diktats of the bureaucracy:
Here are two scenes which illustrate contemporary parenting culture.
In the first, I am called into my son’s primary school by the ‘family-liaison officer’. I am surprised to learn that she is investigating the concerns of a teacher who has overheard my son and his friends discussing their mothers’ favourite punishment methods. Whereas one of the mothers (who I know) reportedly kicks her boy in the privates with her stilettos, and another (who I also know) prefers to administer an ‘African slap’, my chosen method is, apparently, to hit my son with a frying pan. Visions of Tom and Jerry immediately spring to mind, and I laugh at the ridiculousness of the schoolboys’ conversation. The family-liaison officer admits that it is highly unlikely that a mother such as me (white and middle class) would engage in such behaviour, but, she tells me, she is nevertheless obliged to ask if I have ever deployed the family skillet as a weapon. I am now amused, bemused and starting to see that this could have played out very differently if I were perceived to be one of those ‘other’ parents.
Scene two: While swimming in the local pool with frying-pan boy, I notice a mother engage in an exhausting 20-minute argument with her one-year-old baby boy. He had slapped her, so she was asking him in a quiet, controlled voice to look her in the eye and apologise for ‘hurting mummy’. Being a baby, he refused to comply, and became more and more upset as the request was repeated again and again. My sympathy was equal for both mother and child: he was sobbing and she seemed forlornly trapped in some kind of ‘good parenting’ ritual, in which the parent conveys to the child the emotional consequences of their actions – ‘you hurt mummy, that makes mummy feel sad’ – and expects the child to take ‘ownership’ of their actions.
Both of these scenes demonstrate the abandonment of common sense and, indeed, any kind of ‘instinct’ when it comes to adults relating to children. When you remove any element of instinct from parenting, you replace trust, care, love and joy with empty rituals of ‘safeguarding’ or ‘good parenting’. The family-liaison officer’s dutiful yet hollow investigation makes clear just how corrosive the institutionalisation of parent-blaming in schools has become, while the mother’s exchange with her baby in the pool showed how futile and joy-draining following abstract, good-parenting guidelines can be.
Virginia Postrel on the barriers that slow down — or completely stop — innovation in far too many non-digital fields:
… I sympathize with science-fiction writer Neal Stephenson and venture-capitalist Peter Thiel, whose new books lament the demise of grand 20th-century dreams and the optimistic culture they expressed. “I worry that our inability to match the achievements of the 1960s space program might be symptomatic of a general failure of our society to get big things done,” writes Stephenson in the preface to Hieroglyph, a science-fiction anthology hoping “to rekindle grand technological ambitions through the power of storytelling.” In Zero to One, a book mostly about startups, Thiel makes the argument that “we have to find our way back to a definite future, and the Western world needs nothing short of a cultural revolution to do it.”
Their concerns about technological malaise are reasonable. As I’ve written here before, “political barriers have in fact made it harder to innovate with atoms than with bits.” It’s depressing to see just about any positive development — a dramatic decline in the need for blood transfusions, for instance — greeted with gloom. (“The trend is wreaking havoc in the blood bank business, forcing a wave of mergers and job cutbacks.”)
When a report about how ground-penetrating radar has mapped huge undiscovered areas of Stonehenge immediately provokes a comment wondering whether the radar endangers the landscape, something has gone seriously wrong with our sense of wonder. “There’s an automatic perception … that everything’s dangerous,” Stephenson mused at a recent event in Los Angeles, citing the Stonehenge example, “and that there’s some cosmic balance at work — that if there’s an advance somewhere it must have a terrible cost. That’s a hard thing to fix, but I think that if we had some more interesting Apollo-like projects or big successes we could point to it might lift that burden that is on people’s minds.”
Postrel argues that Stephenson’s fix would not work, and that our nostalgia for the early days of the Space Age blind us to the reality that most Americans in that era did not believe that the money for the Apollo missions was well spent (with the brief exception of July, 1969). She makes the point that our culture has changed significantly and those attitudinal changes are much more of the reason for today’s hesitancy and doubt about progress:
We already have plenty of critics telling us that our creativity and effort are for naught, our pleasures and desires absurd, our civilization wicked and destructive. We live in a culture where condemnatory phrases like “the ecosystems we’ve broken” are throwaway lines, and the top-grossing movie of all time is a heavy-handed science-fiction parable about the evils of technology and exploration. We don’t need Neal Stephenson piling on.
The reason mid-20th-century Americans were optimistic about the future wasn’t that science-fiction writers told cool stories about space travel. Science-fiction glamour in fact worked on only a small slice of the public. (Nobody else in my kindergarten was grabbing for You Will Go to the Moon.) People believed the future would be better than the present because they believed the present was better than the past. They constantly heard stories — not speculative, futuristic stories but news stories, fashion stories, real-estate stories, medical stories — that reinforced this belief. They remembered epidemics and rejoiced in vaccines and wonder drugs. They looked back on crowded urban walk-ups and appreciated neat suburban homes. They recalled ironing on sweaty summer days and celebrated air conditioning and wash-and-wear fabrics. They marveled at tiny transistor radios and dreamed of going on airplane trips.
Then the stories changed. For good reasons and bad, more and more Americans stopped believing in what they had once viewed as progress. Plastics became a punch line, convenience foods ridiculous, nature the standard of all things right and good. Freeways destroyed neighborhoods. Urban renewal replaced them with forbidding Brutalist plazas. New subdivisions represented a threat to the landscape rather than the promise of the good life. Too-fast airplanes produced window-rattling sonic booms. Insecticides harmed eagles’ eggs. Exploration meant conquest and brutal exploitation. Little by little, the number of modern offenses grew until we found ourselves in a 21st century where some of the most educated, affluent and cultural influentially people in the country are terrified of vaccinating their children. Nothing good, they’ve come to think, comes from disturbing nature.
At Techdirt, Mike Masnick reports on the first New York Times articles to be removed from Google‘s search indices under the European “right to be forgotten” regulations:
Over the weekend, the NY Times revealed that it is the latest publication to receive notification from Google that some of its results will no longer show up for searches on certain people’s names, under the whole “right to be forgotten” nuttiness going on in Europe these days. As people in our comments have pointed out in the past, it’s important to note that the stories themselves aren’t erased from Google‘s index entirely — they just won’t show up when someone searches on the particular name of the person who complained. Still, the whole effort is creating a bit of a Streisand Effect in calling new attention to the impacted articles.
In this case, the NY Times was notified of five articles that were caught up in the right to be forgotten process. Three of the five involved semi-personal stuff, so the Times decided not to reveal what those stories were (even as it gently mocks Europe for not believing in free speech):
Of the five articles that Google informed The Times about, three are intensely personal — two wedding announcements from years ago and a brief paid death notice from 2001. Presumably, the people involved had privacy reasons for asking for the material to be hidden.
I can understand the Times‘ decision not to reveal those articles, but it still does seem odd. You can understand why people might not want their wedding announcements findable, but they were accurate at the time, so it seems bizarre to have them no longer associated with your name.
Did you know police can just take your stuff if they suspect it’s involved in a crime? They can!
It’s a shady process called “civil asset forfeiture,” and it would make for a weird episode of Law and Order.
I missed this earlier in the week (and it smells “hoax-y”, but it’s too good to check):
A handful of Londoners in some of the capital’s busiest districts unwittingly agreed to give up their eldest child, during an experiment exploring the dangers of public Wi-Fi use.
The experiment, which was backed by European law enforcement agency Europol, involved a group of security researchers setting up a Wi-Fi hotspot in June.
When people connected to the hotspot, the terms and conditions they were asked to sign up to included a “Herod clause” promising free Wi-Fi but only if “the recipient agreed to assign their first born child to us for the duration of eternity”. Six people signed up.
F-Secure, the security firm that sponsored the experiment, has confirmed that it won’t be enforcing the clause.
“We have yet to enforce our rights under the terms and conditions but, as this is an experiment, we will be returning the children to their parents,” wrote the Finnish company in its report.
“Our legal advisor Mark Deem points out that — while terms and conditions are legally binding — it is contrary to public policy to sell children in return for free services, so the clause would not be enforceable in a court of law.”
Ultimately, the research, organised by the Cyber Security Research Institute, sought to highlight public unawareness of serious security issues concomitant with Wi-Fi usage.
In Time, Camille Paglia says that universities are unable to understand the real risks to young women on campus:
The gender ideology dominating academe denies that sex differences are rooted in biology and sees them instead as malleable fictions that can be revised at will. The assumption is that complaints and protests, enforced by sympathetic campus bureaucrats and government regulators, can and will fundamentally alter all men.
But extreme sex crimes like rape-murder emanate from a primitive level that even practical psychology no longer has a language for. Psychopathology, as in Richard von Krafft-Ebing’s grisly Psychopathia Sexualis (1886), was a central field in early psychoanalysis. But today’s therapy has morphed into happy talk, attitude adjustments, and pharmaceutical shortcuts.
There is a ritualistic symbolism at work in sex crime that most women do not grasp and therefore cannot arm themselves against. It is well-established that the visual faculties play a bigger role in male sexuality, which accounts for the greater male interest in pornography. The sexual stalker, who is often an alienated loser consumed with his own failures, is motivated by an atavistic hunting reflex. He is called a predator precisely because he turns his victims into prey.
Sex crime springs from fantasy, hallucination, delusion, and obsession. A random young woman becomes the scapegoat for a regressive rage against female sexual power: “You made me do this.” Academic clichés about the “commodification” of women under capitalism make little sense here: It is women’s superior biological status as magical life-creator that is profaned and annihilated by the barbarism of sex crime.
People who were charged with a crime in England used to be told by the police that they did not have to say anything, but that anything they did say might be taken down and used as evidence against them. I think we should all be given this warning whenever we use a mobile telephone.
I’ve seen this CBC link mentioned several times by US commentators:
American shakedown: Police won’t charge you, but they’ll grab your money U.S. police are operating a co-ordinated scheme to seize as much of the public’s cash as they can
On its official website, the Canadian government informs its citizens that “there is no limit to the amount of money that you may legally take into or out of the United States.” Nonetheless, it adds, banking in the U.S. can be difficult for non-residents, so Canadians shouldn’t carry large amounts of cash.
That last bit is excellent advice, but for an entirely different reason than the one Ottawa cites.
There’s a shakedown going on in the U.S., and the perps are in uniform.
Across America, law enforcement officers — from federal agents to state troopers right down to sheriffs in one-street backwaters — are operating a vast, co-ordinated scheme to grab as much of the public’s cash as they can; “hand over fist,” to use the words of one police trainer.
I haven’t been posting much about the Adrian Peterson situation, partly because I was still waiting for the picture to clarify and partly because it just depressed the hell out of me to think about it. I agreed with the Vikings’ decision to deactivate Peterson for Sunday’s game against New England, even though it clearly distracted the team and disrupted the game planning: it was the right thing to do. I was shocked and dismayed when the team announced that Peterson would be returning to the team on Monday and would play this weekend in New Orleans.
I wasn’t alone in my reaction: the fans, the media, and even the team’s sponsors reacted very negatively to the announcement. The governor of Minnesota weighed in on the issue and his intervention had to be awkward, as he’d been a major supporter of the team’s campaign to get public funding for their new stadium now under construction. Some Viking players were happy to have Peterson back, but even there the support was not as widespread as it might have been … players from the south were much more vocal in their support than those from elsewhere in the nation.
As Monday wore on, a few more pebbles came loose from the PR dam, as the team learned from one sponsor after another that they were suspending or contemplating ending their promotional relationship with the team. Companies and organizations with a direct relationship to Peterson himself were even more direct: Nike, for example, ordered their retailers in Minnesota to stop selling any items branded with Peterson’s name or number.
The team’s ownership and management met late last night to hammer out a new answer to the PR disaster that had landed on them on Friday and had been made far worse by their Monday decision. Shortly before 1 a.m., the team announced that they’d made a mistake and that Peterson would not be active for the coming game. Instead, he’s being put on the NFL’s little-known exempt list, meaning that he’ll be paid his salary but will not be with the team until his legal issues are resolved. Although he’s being paid, he will not count against the team’s 53-man roster.
Instead of Mike Zimmer and Matt Cassel commanding the podium on a typical Wednesday at Winter Park, Minnesota Vikings owner Zygi Wilf issued a statement and Mark Wilf, general manager Rick Spielman and team attorney Kevin Warren took questions about getting “it right,” a mantra uttered nearly 30 times in the 17-minute press conference.
Running back Adrian Peterson has been placed on an exempt list, an order directed by the Vikings, agreed to by Peterson and made possible by NFL commissioner Roger Godell’s oversight. The Vikings’ decision comes two days after the team held a similar press conference at the same location announcing Peterson’s reinstatement.
Public outcry from fans, media, sponsors and even Governor Mark Dayton prompted the change, as Mark Wilf said: “We value our partners, sponsors and community, and especially our fans. In the end, it’s really about getting it right.”
Peterson will be paid his full salary while sorting out his legal matters, which assistant DA Phil Grant has reportedly said could take “nine to 12 months” to go to trial, though a judge can lengthen or shorten at his/her discretion.
The $12 million question for the Vikings is: Will Peterson play another game in 2014? If not, will he ever don the Vikings purple again?
“Until these legal matters are resolved, he will remain on this exemption list,” Spielman said.
US colleges and universities are struggling to come up with new and innovative ways of regulating how their students interact in intimate situations. Ohio State University, for example, now requires that students who engage in sexual relations must agree on why they want to have sex to avoid the risk of sexual assault charges being brought:
At Ohio State University, to avoid being guilty of “sexual assault” or “sexual violence,” you and your partner now apparently have to agree on the reason WHY you are making out or having sex. It’s not enough to agree to DO it, you have to agree on WHY: there has to be agreement “regarding the who, what, where, when, why, and how this sexual activity will take place.”
There used to be a joke that women need a reason to have sex, while men only need a place. Does this policy reflect that juvenile mindset? Such a requirement baffles some women in the real world: a female member of the U.S. Commission on Civil Rights told me, “I am still trying to wrap my mind around the idea of any two intimates in the world agreeing as to ‘why.’”
Ohio State’s sexual-assault policy, which effectively turns some welcome touching into “sexual assault,” may be the product of its recent Resolution Agreement with the Office for Civil Rights (where I used to work) to resolve a Title IX complaint over its procedures for handling cases of sexual harassment and assault. That agreement, on page 6, requires the University to “provide consistent definitions of and guidance about the University terms ‘sexual harassment,’ ‘consent,’ ‘sexual violence,’ ‘sexual assault,’ and ‘sexual misconduct.’” It is possible that Ohio State will broaden its already overbroad “sexual assault” definition even further: Some officials at Ohio State, like its Student Wellness Center, advocate defining all sex or “kissing” without “verbal,” “enthusiastic” consent as “sexual assault.”
Ohio State applies an impractical “agreement” requirement to not just sex, but also to a much broader category of “touching” that is sexual (or perhaps romantic?) in nature. First, it states that “sexual assault is any form of non-consensual sexual activity. Sexual assault includes all unwanted sexual acts from intimidation to touching to various forms of penetration and rape.” Then, it states that “Consent is a knowing and voluntary verbal or non-verbal agreement between both parties to participate in each and every sexual act … Conduct will be considered “non-consensual” if no clear consent … is given … Effective consent can be given by words or actions so long as the words or actions create a mutual understanding between both parties regarding the conditions of the sexual activity–ask, ‘do both of us understand and agree regarding the who, what, where, when, why, and how this sexual activity will take place?’”
Advice to college guys: avoid all college women. If you want to have sex, go to a prostitute and get a receipt. http://t.co/sh9voKuJ9L
News broke yesterday that Minnesota Vikings star running back (and former NFL MVP) Adrian Peterson has been accused of reckless or negligent injury to a child. The team announced that Peterson would not play in this weekend’s home opener against the New England Patriots and that any inquiries should be directed to Peterson’s attorney rather than to the team.
Peterson has been the focus of charges before, and the team and the fans rallied around him and the charges were eventually dropped. This is different. This is not a confrontation with a rent-a-cop with delusions of authority. This is much more serious and, if true, shows Peterson in a very bad light indeed.
Jim Souhan expresses much the same feelings I have over the situation:
I hoped it wasn’t true. I hoped that if it turned out to be true, the child was uninjured.
Then I saw the alleged pictures.
I’ll use the words “alleged” and “if” a lot here, just in case Peterson is somehow being wrongly accused.
The pictures detail the wounds that Peterson allegedly inflicted on his 4-year-old son with a switch. The pictures are, allegedly, taken a week after the injuries. The pictures should turn the stomach of any human, and especially anyone who has worried over their child’s skinned knee with a Band-Aid and Neosporin.
If Peterson is guilty, this act would change everything.
I’ve always liked Peterson. I’ve never had reason not to.
For a star, Peterson is friendly and accessible. In terms of work ethic and on-field effort, he has never been anything less than admirable. His teammates like him. Vikings staffers like him.
None of that matters now. If Peterson took a piece of wood and whipped a 4-year-old until the child bled from large welts, he should never play for the Vikings again.
If the charges are true, Peterson will likely face a lengthy suspension. He is 29. By February, the Vikings were already due to begin asking themselves whether they could afford to pay an aging running back like a superstar.
If Peterson viciously beat a 4-year-old, the Vikings may have to consider cutting ties with a player who had a chance to be not only great but forever beloved.
If Peterson is guilty of child abuse, someone, somewhere in the NFL has to stop thinking about wins and losses and begin asking this question: “What kind of league do we want to be?’’
Minnesota Vikings running back Adrian Peterson has been indicted by a Montgomery County, Texas grand jury on charges of reckless or negligent injury to a child, his attorney Rusty Hardin confirmed in a statement to 1500ESPN.com.
Per the statement, Hardin confirmed the charges involve Peterson using a “switch” (a flexible tree branch) to spank his son, adding that Peterson “has cooperated fully with authorities and voluntarily testified before the grand jury for several hours.”
KARE 11 TV has reported an arrest warrant is out, and Peterson plans to travel to Houston to turn himself into authorities.
Peterson also allegedly said via text message to the child’s mother that he “felt bad after the fact when I notice the switch was wrapping around hitting I (sic) thigh” and also acknowledged the injury to the child’s scrotum in a text message, saying, “Got him in nuts once I noticed. But I felt so bad, n I’m all tearing that butt up when needed! I start putting them in timeout. N save the whooping for needed memories!”In further text messages, Peterson allegedly said, “Never do I go overboard! But all my kids will know, hey daddy has the biggie heart but don’t play no games when it comes to acting right.”
According to police reports, the child, however, had a slightly different story, telling authorities that “Daddy Peterson hit me on my face.” The child also expressed worry that Peterson would punch him in the face if the child reported the incident to authorities. He also said that he had been hit by a belt and that “there are a lot of belts in Daddy’s closet.” He added that Peterson put leaves in his mouth when he was being hit with the switch while his pants were down. The child told his mother that Peterson “likes belts and switches” and “has a whooping room.”
Peterson, when contacted by police, admitted that he had “whooped” his son on the backside with a switch as a form of punishment, and then, in fact, produced a switch similar to the one with which he hit the child. Peterson also admitted that he administered two different “whoopings” to his son during the visit to Texas, the other being a punishment for the 4-year-old scratching the face of a 5-year-old.
Update: USA Today‘s Tom Pelissero explains the situation both for the NFL and for the Vikings.
In Forbes, Jacob Sullum explains the amazingly lenient rules in most states for the government to steal your property:
Three key features of civil forfeiture law give cops this license to steal:
The government does not have to charge you with a crime, let alone convict you, to take your property. Under federal law and the laws of many states, a forfeiture is justified if the government can show, by a preponderance of the evidence, that it is connected to a crime, typically a drug offense. That standard, which amounts to any probability greater than 50 percent, is much easier to satisfy than proof beyond a reasonable doubt, the standard for a criminal trial. Some states allow forfeiture based on probable cause, a standard even weaker than preponderance of the evidence.
The burden of proof is on you. Innocent owners like Mandrel Stuart have to prove their innocence, a reversal of the rule in criminal cases. Meanwhile, the government hangs onto the money, which puts financial stress on the owner and makes it harder for him to challenge the forfeiture.
Cops keep the loot. Local cops and prosecutors who pursue forfeiture under federal law, which is what happened in Stuart’s case, receive up to 80 percent of the proceeds. Some states are even more generous, but others give law enforcement agencies a smaller cut, making federal forfeiture under the Justice Department’s Equitable Sharing Program a tempting alternative. The fact that police have a direct financial interest in forfeitures creates an incentive for pretextual traffic stops aimed at finding money or other property to seize. The Post found that “298 departments and 210 task forces have seized the equivalent of 20 percent or more of their annual budgets since 2008.”
There’s at least some awareness in the Senate that the civil forfeiture rules are being abused:
The Fifth Amendment Integrity Restoration (FAIR) Act, a bill introduced by Sen. Rand Paul (R-Ky.) in July, addresses each of these issues. The FAIR Act changes the standard of proof in federal forfeiture cases from “preponderance of the evidence” to “clear and convincing evidence.” That change does not go as far as the Institute for Justice, a public interest law firm that has been fighting forfeiture abuse for years, would like. I.J. argues that civil forfeiture should be abolished, meaning that a criminal conviction, based on proof beyond a reasonable doubt, would be required for the government to take property allegedly connected to a crime. But Paul’s reform would make it harder for the government to prevail if a forfeiture case goes to trial, which might deter seizures of large sums in situations where the evidence is weak.