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Really, now. Who'd have thought anyone could write about the horrors of asset forfeiture -- and leave you laughing? But Leon Felkins can, and does in "House Arrest." In Part I, he examines the bizarre history of forfeiture. In Part II, he foresees a rich future for those who prosecute inanimate objects for committing "crimes." My only concern now is that Leon might be giving the government ideas.With permission from Leon and Bill Folsom (creative genius of pissedOff.com), I grabbed this essay from pissedOff, preserving all of the odd and interesting links characteristic of that funky web site.
"[Starting in 1485] Confiscation of property was the standard punishment prescribed by law for heresy...There were normally two stages to the exercise. At the first state, upon the arrest of a suspect, his goods and income were 'sequestrated'. The sequestrations were used to pay the cost of the prisoner in gaol. If he were there long enough the money might all be used up, thereby driving his dependents into poverty...Confiscation proper, which occurred only at the second stage, resulted from a judicial verdict and was a regular penalty for major crimes."
Quoted from the book, The Spanish Inquisition, by Henry Kamen, Yale University Press.
"Common sense compels the conclusion that punishment occurs when meted out by the court, not before"
(Krizek, 271 Ill. App. 3d at 537, quoting United States v. Stanwood, 872 F. Supp. 791, 799 in support of an opinion that "the initial seizure of a defendant's property, where there is no final judgment of forfeiture, does not constitute punishment for double jeopardy purposes.")
What I would like to discuss in this essay are two specific aspects of Asset Forfeiture: Where it came from (in Part I: "Background on Asset Forfeiture") and Where it may go (in Part 2: "A Bountiful Future for Deodand").
Some would say that the taking of private property in addition to any penalties determined by the criminal courts is also a violation of the Fifth Amendment's ban against double jeopardy. But the Supreme Court has already ruled that such is not the case. We also note that the Fifth Amendment states that no person shall be "deprived of life, liberty, or property, without due process of law", and the Eighth Amendment states that "excessive fines [shall not] be imposed", but I suppose those points are academic, at this stage.
Before we go on with the subject of Forfeiture, a quick comment on the workings of Constitutional Government: How is that the government can simply ignore the Constitution? Simple; they discovered a long time ago that nothing happens when the Constitution is ignored. After all, practically, what can the people do about it? Today, every one of the Bill of Rights are routinely ignored by the government, some more than others.
Putting aside the problems with the Constitution, let us look at "How We Got into This Mess", quoting a chapter title from Representative Henry Hyde's book, Forfeiting Our Property Rights, which is an excellent reference on this subject.
Now we all have, in a fit of frustration, had the desire to kick the car or the television set when they refused to do as told and we know that some people have actually carried out acts of violent "punishment" against such objects in a fit of rage. We also know that little children readily accept that objects and animals have a soul or spirit and that even some religions support such beliefs (animism). Now I have no objection to children believing in animism, some religions promoting animism, or me attacking my car with an AK-47 when it decides to quit forty miles from the nearest service, but for the government to invoke it into law!! Please. Such abuses of the law are commonly referred to as a "legal fictions"!
"the English law recognized a kind of forfeiture known as "deodand," which required forfeiture of the instrument of a person's death. The principle was based on the legal fiction that the instrument causing death was deemed "guilty property" capable of doing further harm. For example, if a domesticated animal killed a person, it would be forfeited, usually to the King, regardless of the guilt of its owner. The original purpose for creating this legal fiction was to satisfy the superstition that a dead person would not lie in tranquility unless the "evil property" was confiscated and viewed by the deceased's kin as the object of their retribution. Eventually, the King used forfeiture to enhance revenue, and this corrupt practice lead to the statutory abolishment of deodand in England in 1846."The process used by the courts to prosecute the "evil object" became known as an in rem proceeding, a term still used today in forfeiture cases. A discussion of "in rem proceedings" is contained in "POLICING FOR PROFIT: THE DRUG WAR'S HIDDEN ECONOMIC AGENDA" by Eric Blumenson & Eva Nilsen.
But such superstitions belong to the Middle ages, a time of witchcraft trials, the Inquisition, slaughtering of millions of "primitive savages", extracting of confessions by torture, and a general lack of any respect for human rights. Surely no modern civilized country would stoop so low as to adopt such methods in the guise of fighting crime. Except one: The United States of America. Further, that country is in the process of promoting that evil practice to every other country of the world. The next section takes a look at how this could happen.
"Property is surely a right of mankind as real as liberty. The moment the idea is admitted into society that property is not sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence."The Founding Fathers were particularly sensitive about property rights and tried to prevent forfeiture abuse by the government by specific reference in the Bill of Rights. About the only use of forfeiture was in Admiralty law which did allow seizure of vessels on the high seas that were involved in some violation of law. In the American Civil War, the Confiscation Act of 1862 allowed the seizure of private property of Southern Rebels and their sympathizers based on there being a state of war. In general, there has been little use of forfeiture by our government.
John Adams, second president of the USA.
Until the War on Drugs was established! Originally, forfeiture laws were written to be used as a weapon in this ill-conceived "war". It has now been expanded to almost every area of law enforcement, including the catching of the wrong fish, wherein your boat may be confiscated.
Yet, the concept is still in its infancy. The government has only scratched the surface for the potential public good that can come from holding inanimate objects and animals responsible for their actions.
But let us first review the logic of the arrest and punishment of inanimate objects as proclaimed by our governments. First off, the government insists that they are punishing the object, not the owner of the object, which is the basis for their claim that the owner has not been subjected to Double Jeopardy (affirmed all the way to the Supreme Court). It is also the basis for getting around the Fourth Amendment of the Bill of Rights which does not allow unreasonable searches or seizures. Further, it allows the government to take property of people who were not knowledgeable of or involved in the commission of the crime in any way.
In view of all that, we must accept that it is the object being punished, not the owner of the object. That leads to some interesting possibilities!
One suggestion would be to take huge bundles of it up in an airplane and dumped over Baltimore. Or for more serious crimes, how about having the bills processed into rolls of toilet paper? Surely this would cut down on the rather flagrant involvement of money in so much illegal activity.
One more example: Consider the casino that the Feds seized out in California. I believe it was called "The Bicycle Club". How did they punish it? They gave it to the Federal Marshals who kept it in operation! Well, being operated by Federal Marshals is admittedly pretty humiliating but we could do better. Why not convert the casino to a church bingo hall? Surely no more casinos would abuse the law once they hear about that.
"If an ox gore a man or a woman, that they die: then the ox shall be surely stoned, and his flesh shall not be eaten; but the owner of the ox [shall be] quit."That settles it.
Exodus 21:28
Now back to beating the hell out of my lawn mower which is ungratefully refusing to start after the nice long hibernation it has enjoyed this past winter.
More of Leon Felkins' essays may be found on his webpage, A Rational Life.
(c) Leon Felkins 1998.
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06 June, 1998