Guilty until proven innocent?
The right to the presumption of innocence is one of the main cornerstones of our criminal law system, and no, I wouldn’t touch Sen. Mazie Hirono’s version of that precept with a 10-foot pole.
But, according to the Institute for Justice, this presumption has deep historical roots that can be traced back through American jurisprudence as well as through English common law. It means that if you are accused of a crime you do not have to prove your innocence, the party accusing you, or the prosecutor must prove you are guilty.
But what if inanimate objects could be charged in the involvement of a crime? They can — and they very often are — in a legal process known as civil asset forfeiture. This legal process allows police to seize, then keep or sell any property they allege is involved in a crime. According to the ACLU, the person who owns the property “need not ever be arrested, charged or convicted of a crime for their cash, cars, or even real estate to be taken away permanently by the government.”
The Constitution does not mention this right of innocent until proven guilty specifically but it is inferred in the 14th Amendment, which guarantees “equal protection under the law.” Additionally, the Fourth Amendment affirms “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures … .” The Sixth Amendment says the accused shall enjoy the right to a speedy and public trial and even a court appointed lawyer for his defense if needed.
OK, all well and good, but in civil asset forfeiture the person is not charged, the property itself is charged with involvement in a crime and the burden of proof falls to the owner of the seized property. This no doubt came about as a tool against organized crime likely in the war on drugs with the justification of confiscating assets and ill-gotten gains of criminals. But today all too frequently through deeply flawed federal and state laws many police departments use forfeiture to aid their financial bottom line, to pad budgets or pay overtime with some calling the behavior government shakedown schemes. Many innocent people are being stripped of money and property through this miscarriage of its original intent.
And innocent does not mean your property will be returned. It becomes a costly legal nightmare with the burden on you, the victim, to prove that neither you nor your property were involved in a crime, or that you had any knowledge that the property, such as a house you rent to tenants, was being used to facilitate a crime.
An example from The Daily Signal illustrates just how twisted the modern civil asset forfeiture practice has become. In 2008, 44 vehicles belonging to people attending a “Funk Night” at the Contemporary Art Institute of Detroit were seized by armor-clad police who stormed the event, judged the attendees patronizing the event complicit in the crime and forced them to the floor because the Art Institute failed to get a permit to serve alcohol.
Most people caught in this situation have no idea where or how to proceed and are fearful that it will just result in more lost money, so they walk away. The very low recapture rate for victims of civil asset forfeiture bears this out.
However, as a sign that things may be moving in the right direction, a US district judge in Albuquerque, New Mexico, recently declared Albuquerque’s civil asset forfeiture program unconstitutional based on the property owner’s legal right to the presumption of innocence. He held that the program’s funds, which bankroll its budget, enticed law enforcement officers to work for personal benefit rather than for civilian protection. And after four years of litigation, the Institute for Justice has also been successful in dismantling Philadelphia’s civil forfeiture machine.
The Institute for Justice and other nonprofit groups are urging Congress to remedy this “policing for profit” as it is seen as one of the gravest threats to private property rights in existence today.
As citizens of a free republic it is our duty to preserve it. If you would like to take a free online course on the U. S. Constitution go to: www.freeconstitutioncourse.com.
Mikie Kerr is a constitutional enthusiast who lives in Waikoloa and writes a monthly opinion column for West Hawaii Today.
