Thursday, April 21, 2016

Nebraska Passes Law Severely Restricting Civil Asset Forfeiture

The governor of Nebraska just signed in a law that almost entirely eliminates the practice of civil asset forfeiture in the state. If you believe in the idea that people should be considered innocent until proven guilty by the courts, then this is great news.

Civil asset forfeiture is a harmless-sounding phrase that actually represents one of the worst things that government does (domestically, that is). In a nutshell, civil asset forfeiture refers to the practice where law enforcement confiscates someone's assets, regardless of whether they have been charged or convicted of a crime, and then is allowed to use a share of the proceeds from the assets to support their own department. If a victim (i.e. the person whose assets were confiscated) wants to get their property back, they have to prove that the property was not derived from criminal activity. Or, in other words, they have to prove innocence, instead of requiring the courts to prove guilt.

If this seems a little backwards, it should. And like many bad and harmful ideas, this one is usually justified in the context of the War on Drugs. The basic idea is that this will allow cops to cut off the resources from the "bad guys". And in a perverse way, there's actually some logic here. Obviously, most drug transactions, being transactions, are voluntary. There is a seller and a buyer, and as long as no force or fraud is involved in the process, it's a voluntary exchange between two parties that both get something they want, just like any other transaction in the marketplace. While that would seem like a good thing, it creates a problem for law enforcement. Obviously, if both parties to the sale benefited, neither has a compelling reason to report the other to law enforcement for breaking the laws on drug prohibition. This, in turn, makes it harder for law enforcement to find and prosecute these people. It also happens to make the illicit drug industry more profitable, since the likelihood of being caught is relatively low. (We've also previously commented on the less-than-intuitive fact that illegal nature of drugs also directly increases profitability from the drug trade for people that are willing to participate in violence.)

Now, the correct and rational response to the problem outlined above is to stop trying to enforce drug laws. They are the quintessential victimless crime, and whatever harm drugs may do, that harm is confined to the user, is demonstrably not prevented by making them illegal, and is, frankly, none of anyone else's business besides the drug-seller and drug-consumer.

Unfortunately, law enforcement, and government generally, do not have a strong track record for favoring libertarian solutions. Civil asset forfeiture is one of the alternative solutions they have come up with instead. So it's hard to prove that a suspect has committed a drug crime, eh? Well, let's just take their money and assets, and make them prove they're innocent instead! What could possibly go wrong?

The answer, it turns out, is quite a lot. Innocent people get swept up in the scheme all the time. And rather than recounting the details here, I'd recommend this excellent (and thankfully non-partisan) segment from Jon Oliver on Last Week Tonight.

On the plus side, Nebraskans have just taken bold action to limit civil asset forfeiture. And for the details on that, check out this quick write-up from Reason.

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