- - Monday, November 17, 2014

ANALYSIS/OPINION:

Whether your metric is the use of the executive branch’s awesome investigative and prosecutorial powers to punish the administration critics, the stonewalling and misleading of congressional investigations, or the racially discriminatory enforcement of civil rights laws in violation of the Constitution’s equal-protection principles, the Obama Justice Department is the most politicized in the nation’s history.

But the conversion of the rule of law from a foundation of ordered liberty to a political weapon may have at least one silver lining. Growing public alarm over the abuse of executive power spotlights some wayward prosecutorial practices that have been building for decades. Among them is civil forfeiture. It has devolved from a useful tool for defunding major criminal enterprises to a dangerous gutting of due process for ordinary Americans.

Like many government initiatives that grow harmful owing to inevitable mission creep, forfeiture seemed like a fine idea at the start. That was the early 1970s, when the nation faced a record crime wave driven by organized crime and narcotics-trafficking gangs. These enterprises can be very difficult to prosecute: Key leaders are insulated, witnesses are afraid to come forward and lavish profits enable mobsters and kingpins to hire top-flight lawyers and corrupt judicial processes.

Civil forfeiture was one clever way of attacking the problem. Rather than targeting the thugs through criminal prosecution, the civil approach targeted the instrumentalities that facilitated crime and the assets that were its proceeds — either cash or the things that money can buy. Although government prosecutors brought the cases, they were civil in nature, not criminal. That meant the “defendant” was the asset itself (e.g., a car, a bank account, a trove of jewelry), not the person whose suspected criminal activity generated these assets.

This was a coup for prosecutors because the burden of proof in civil cases is significantly lower: The case if proved by a “preponderance of the evidence” (basically, prosecutors must show merely that guilt is more likely than not), rather than the daunting “beyond a reasonable doubt” standard applicable for criminal conviction. Moreover, there was great risk for the owner of ill-gotten gains subject to criminal forfeiture: By challenging the seizure of his property, he could end up providing investigators with valuable information about himself that could help build a criminal case.

Civil forfeiture thus became a powerful staple of the government’s arsenal against predatory criminal enterprises. In the ensuing decades, however, Congress vastly expanded it. Nearly half a century later, it has so metastasized that asset forfeiture is now available for virtually every offense of the federal criminal law.

It was understandable that the dismantling of criminal syndicates that were tough to prosecute was a high priority in an era of high crime. But the dragnet that civil forfeiture has become has had the unintended consequence of depriving ordinary citizens of due-process rights. In effect, though their property is targeted because of suspected criminal activity, they are compelled either to abandon the property without challenge or litigate government seizures without such protections as the presumption of innocence, the right to counsel and the right to have the government prove every element of guilt beyond a reasonable doubt.

Perhaps just as worrisome, asset forfeiture now warps government incentives. It is one thing if assets that investigators seize in civil litigation are simply turned over to the public treasury for general public purposes — such as, say, paying down government debt (stop snickering). Yet, with no small prompting from the Justice Department, asset forfeiture has become something of a bounty for investigative agencies, used as prosecutors and agencies see fit to buy equipment, pay sources, underwrite investigative initiatives, and generally make more cases.

When I was a prosecutor, federal agencies had to clean up analogous compensation structures that, for example, made payments to drug informants on the basis of how many cases they made or kilograms of cocaine their information helped recover. The payment system incentivized the informants to exaggerate criminal activity — and even when they didn’t overhype their allegations, good defense lawyers were able to suggest they had, damaging the effect of their trial testimony.

Concerns are thus growing that asset forfeiture, even in the criminal context, has gone too far. Last month, the Supreme Court heard the Kaley case, involving a couple charged with an obscure medical-device fraud. On the basis of the allegation, the government froze their assets; meaning, they are unable to retain the counsel of their choice even though prosecutors have yet to prove that they’ve done anything wrong. Such cases are increasingly common.

Proposals are also moving through Congress that would heighten the government’s burden of proof in civil-forfeiture cases and more tightly regulate its use of forfeiture proceeds.

It is high time for such reform. We are no longer in an era of runaway crime. Now, the problem is a rogue executive branch, from which Americans need all the protection they can get.

Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at National Review Institute and a contributing editor at National Review.

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