Feds Take in Billions with Forfeiture Powers
Today’s Wall Street Journal has part 2 of its critical look at the powers of federal law enforcement agencies and the focus of this article is on the power to seize cash, cars, homes, and other assets from people who have not been convicted of a crime. It’s called “civil asset forfeiture” because there is no criminal prosecution. Here’s an excerpt (subscription only):
New York businessman James Lieto was an innocent bystander in a fraud investigation last year. Federal agents seized $392,000 of his cash anyway.
An armored-car firm hired by Mr. Lieto to carry money for his check-cashing company got ensnared in the FBI probe. Agents seized about $19 million—including Mr. Lieto’s money—from vaults belonging to the armored-car firm’s parent company.
He is one among thousands of Americans in recent decades who have had a jarring introduction to the federal system of asset seizure. Some 400 federal statutes—a near-doubling, by one count, since the 1990s—empower the government to take assets from convicted criminals as well as people never charged with a crime.
Last year, forfeiture programs confiscated homes, cars, boats, and cash in more than 15,000 cases. The total take topped $2.5 billion, more than doubling in five years, Justice Department statistics show.
The expansion of forfeiture powers is part of a broader growth in recent decades of the federal justice system that has seen hundreds of new criminal laws passed. Some critics have dubbed the pattern as the overcriminalization of American life.
Last year, Cato hosted an event on the problem of forfeiture law and before that published numerous books and studies and articles. It’s nice to see the Wall Street Journal highlighting this problem for its readership.
Saving a Baby Woodpecker: The Legal Consequences
Federal law makes it illegal to “take,” “possess,” or “transport” a migratory bird except under permit. If you worry that this sweeping language might give the federal government too much enforcement power, perhaps you are one of those horrid House Republicans who, according to Bryan Walsh in Time magazine, are in the grip of “antigreen ideology” and want to “essentially prevent” agencies like the Department of the Interior “from doing their jobs.” Who else would object to laws meant to protect Nature?
It’s a pretty safe bet that Walsh hasn’t met the Capo family of Fredericksburg, Virginia. According to a report on broadcast station WUSA, and now being picked up far and wide by other news outlets, 11-year-old Skylar Capo saved a baby woodpecker in her back yard from the family cat and decided to keep it for a day or two to make sure it wasn’t injured before letting it go. The family’s problems began when Skylar took the bird into a Lowe’s to keep it out of the hot sun and was spotted by a woman in the store who confronted her and said she was a Virginia state game officer. Two weeks later, says Skylar’s mother Alison, the woman showed up at their front door accompanied by a state trooper with the news that the family owed a fine of $535; the federal law also carries possible jail time. (The bird itself was long gone by this point, having been released the same day of the store visit, the family says.)
With publicity about the case hitting the wires, the U.S. Fish and Wildlife Service has now announced that it has rescinded the fine—the ticket had been mistakenly issued, it insists, in spite of a decision not to pursue charges. That also presumably takes care of the worry about jail time. But really, if you’re the parent of a youngster fascinated by backyard wildlife, why take chances? Order them back indoors to play video games and watch TV. It’s much legally safer that way.
For more from Cato on overcriminalization, see posts like this, this, and this.
The Minefield of American Criminal Law
Over the weekend, the Wall Street Journal ran an excellent article about the problem of overcriminalization—the proliferation of criminal laws and how more and more people can find themselves on the wrong side the law without even realizing it. Here’s an excerpt:
In 2009, Mr. Anderson loaned his son some tools to dig for arrowheads near a favorite campground of theirs. Unfortunately, they were on federal land. Authorities “notified me to get a lawyer and a damn good one,” Mr. Anderson recalls.
There is no evidence the Andersons intended to break the law, or even knew the law existed, according to court records and interviews. But the law, the Archaeological Resources Protection Act of 1979, doesn’t require criminal intent and makes it a felony punishable by up to two years in prison to attempt to take artifacts off federal land without a permit.
Read the whole thing.
It’s great that this phenomenon is getting more attention. Too many people in Washington seem to think that the more laws Congress enacts, the better the job performance of the policymakers. That’s twisted. Before an elected official can take any action whatsoever, he or she must first take an oath to uphold and preserve the Constitution—and the role of the federal government in the criminal area is supposed to be quite limited. I testified before a congressional committee two summers ago on this subject. And Judge Alex Kozinski, quoted in the WSJ article above, has a terrific essay in my book, In the Name of Justice, about the score of federal criminal laws now on the books. And Cato adjunct scholar Harvey Silverglate authored a fine book on the problem, called Three Felonies a Day. More here (pdf) and here.
When Cops Go Commando, It’s No Laughing Matter
I received a response to my recent blog post on the Department of Education serving a warrant and dragging Kenneth Wright of Stockton, California from his home at six in the morning (incident added to the Raidmap, and here’s an updated link to the story). Here is the word from Department of Education Press Secretary Justin Hamilton:
“Yesterday, the Depart of Education’s office of inspector general executed a search warrant at Stockton California residence with the presence of local law enforcement authorities.
While it was reported in local media that the search was related to a defaulted student loan, that is incorrect. This is related to a criminal investigation. The Inspector General’s Office does not execute search warrants for late loan payments.
Because this is an ongoing criminal investigation, we can’t comment on the specifics of the case. We can say that the OIG’s office conducts about 30-35 search warrants a year on issues such as bribery, fraud, and embezzlement of federal student aid funds.
All further questions on this issue should be directed to the Department of Education’s Inspector General’s Office.”
This does not change my analysis one bit. The Department of Education doesn’t need a squad of “operators” busting down doors in white collar crime cases.
Search warrants issued pursuant to an investigation of bribery, fraud or embezzlement shouldn’t require door breaching at dawn unless there’s some exigent circumstances justification. Did the agents think that Kenneth Wright was going to resist the warrant service with deadly weapons, or destroy evidence? If so, say so. At least it would provide some evidence of surveillance prior to the raid or actual investigation. Investigation or surveillance might have revealed that the target of the warrant, Wright’s estranged wife, would not be home when agents came knocking.
Some gunbloggers wondered a while back about a federal website soliciting contracts to provide short-barreled shotguns for the Department of Education (H/T Uncle and Tam). Now we know what they’re intended for, and it’s incompatible with a free society.
The Supreme Court and the California Prison System
This morning the Supreme Court issued a remarkable ruling [pdf] concerning California’s prison system. Because of years of pervasive overcrowding, there have been systemic violations of the Constitution’s ban on Cruel and Unusual Punishments. To remedy those violations, the Court affirmed a lower court order to reduce the prison population. I was not surprised to learn that Justice Anthony Kennedy authored the majority opinion in this case, Brown v. Plata. In a 2003 speech to the American Bar Association (reprinted in my book In the Name of Justice), Kennedy tried to raise more awareness about America’s prison system. He made the point that every citizen ought to take an interest in the prison system–it is not just the realm of correctional personnel. Here’s an excerpt from Kennedy’s speech:
The subject [of prisons] is the concern and responsibility of every member of [the legal] profession and of every citizen. This is your justice system; these are your prisons. … [W]e should know what happens after the prisoner is taken away. To be sure, the prisoner has violated the social contract; to be sure he must be punished to vindicate the law, to acknowledge the suffering of the victim, and to deter future crimes. Still, the prisoner is a person; still, he or she is part of the family of humankind.
Were we to enter the hidden world of punishment, we should be startled by what we see. Consider its remarkable scale. The nationwide inmate population today is about 2.1 million people. In California … this state alone keeps over 160,000 persons behind bars. In countries such as England, Italy, France, and Germany, the incarceration rate is about 1 in 1,000 persons. In the United States it is about 1 in 143.
The numbers are only the beginning of the story. Do not assume that the government has the facilities to house the prisoners that are sentenced. California is housing far beyond the design capacity of its prisons–double. That is, it has designed a system for 80,000 but has stuffed 160,000 into the buildings. The sheer number of inmates has overwhelmed the facilities and staff. Kennedy’s opinion details the abysmal conditions, but I will mention a few:
- In one prison, 54 men share one toilet
- medical staff sometimes use closets and storage rooms for ill patients-rooms without adequate ventalition.
- exam tables are not disinfected after use by prisoners with communicable diseases
- men held for hours and hours in telephone booth sized cages with no toilet
- California’s prison system averages one suicide a week (80% higher than the national average)
- Men with medical problems go untreated and die. These are not cancer patients. These are preventable deaths. For example, a man with stomach pain goes five weeks without medical treatment and dies.
A corrections official from Texas toured California’s facilities and he testified that he has been in the field 35 years and was just appalled. He’d “seen nothing like it.”
Four conservative justices–Scalia, Thomas, Roberts and Alito–dissented from the ruling. Scalia said the outcome was “absurd” — “perhaps the most radical injunction issued by a court in our Nation’s history.” Justice Alito said the Constitution “imposes an important–but limited–restraint on state authority in [the prison] field. The Eighth Amendment prohibits prison officials from depriving inmates of ‘the minimal civilized measure of life’s necessities.’” The conservatives concede, as they must, that the California prison system is really bad, but they argue that it is not yet so awful so as to warrant judicial intervention and a population reduction order. Kennedy and the liberals in the majority (Breyer, Ginsburg, Sotomayor, and Kagan) make a persuasive case that California’s elected officials have had ample opportunity to address the systemic problems, but have let them fester year after year.
Libertarianism Happens to People
You are probably familiar with the story of Brian Aitken, the responsible gun owner wrongly convicted of violating New Jersey’s draconian gun laws. Governor Chris Christie commuted Aitken’s sentence, and his appeal is still pending.
As Radley Balko often says, libertarianism happens to people. It happened to Brian Aitken:
Aitken never thought of himself as a libertarian, but two years in the clutches of the state system has changed him completely. Before the arrest, the young, apolitical entrepreneur was on his way to a successful career in digital marketing.
“I never considered myself a person who is really interested in politics,” Aitken says. “But after all this happened I am definitely a hardcore libertarian now.”
The Growing Chorus for Criminal Justice Reform
The American criminal justice system has long been flawed. This probably isn’t news to you. What is news is the emergence of a broad chorus of organizations and leaders from across the political spectrum speaking out in support of serious reform. A few examples:
The Smart on Crime Coalition released its recommendations (and in pdf) for the 112th Congress, providing ways that the federal government can help fix the criminal justice system. Congress creates, on average, a new criminal offense every week. The urge to overcriminalize just about everything needs to be replaced with serious thought about how broadly Congress writes laws so that the drive to lock up a few bad actors does not make felons of a large portion of the citizenry.
The Smart on Crime report also points out the need for reform of asset forfeiture laws, building on the excellent Policing for Profit report produced by the Institute for Justice last year.
Conservatives see the need for reform as well. Right on Crime makes the case for a number of policy changes that not only focus law enforcement resources but aim to save taxpayer dollars.
Grover Norquist of Americans for Tax Reform, a signatory to Right on Crime’s Statement of Principles, points to recent reforms in Texas at National Review:
When the Lone Star State’s incarceration rates were cut by 8 percent, the crime rate actually dropped by 6 percent. Texas did not simply release the prisoners, however. Instead, it placed them under community supervision, in drug courts, and in short-term intermediate sanctions and treatment facilities. Moreover, it linked the funding of the supervision programs to their ability to reduce the number of probationers who returned to prison. These strategies saved Texas $2 billion on prison construction. Does this mean Texas has gotten “soft on crime”? Certainly not. The Texas crime rate has actually dropped to its lowest level since 1973.
The lesson from Texas is that conservatives can push reforms that both keep Americans safe and save money, but only if we return to conservative principles of local control, performance-based funding, and free-market innovation.
As Radley Balko recently wrote at Reason, there are points where libertarians and conservatives will differ, but there is cause for optimism in the recognition that we can’t continue to lock up so many of our citizens. The United States accounts for 5% of the world’s population, yet 23% of the world’s reported prisoners. Hopefully Jim Webb’s National Criminal Justice Commission Act will end his Senate career on a positive note, and prompt serious changes to the way that the states and federal government deal with crime.
To gain an appreciation of the scope of the problem, check out Tim Lynch’s In the Name of Justice: Leading Experts Reexamine the Classic Article “The Aims of the Criminal Law” and Harvey Silverglate’s Three Felonies a Day: How the Feds Target the Innocent.
Brian Aitken Pardon Decision Pending
In a recent post I discussed the plight of Brian Aitken, a New Jersey resident currently serving seven years in prison. Thing is, it’s not clear that Aitken broke the law.
Radley Balko produced an excellent write-up of Aitken’s case, and Glenn Reynolds put together a video. Aitken’s conviction is the product of (1) New Jersey’s draconian gun laws; (2) a lack of prosecutorial discretion that should have focused resources on real threats to society; and (3) a judge’s refusal to issue jury instructions on the “moving exception” to New Jersey’s gun laws. The same judge dismissed animal cruelty charges against a police officer that had placed his penis in the mouths of five calves. The judge was serving in a temporary capacity and not reappointed by Governor Christie. This is overcriminalization compounded by incompetence.
New Jersey Governor Chris Christie has said that he intends to make a decision on Aitken’s conviction by Christmas. If you’ve got the time, here is a link to information on joining Aitken’s Facebook campaign for a pardon and a phone number to call the Governor Christie’s office and express your support.
Overcriminalization Incentives
In my post on Brian Aitken’s plight, I discussed New Jersey’s draconian gun laws and how a law-abiding citizen can become a victim of overbroad laws. New Jersey gun laws weren’t always so bad, but overcriminalization warped them into their current unconstitutional state.
This trend is a staple of modern legislative activity. Every time a politician says that we must pass a new law to “get tough on crime” and that their pet legislation ought to be passed “for the children,” it’s a sure indicator that the rule of law is about to take another body blow. Take, for instance, the crusade against sexting that threatens to make foolish teenagers into sex offenders. Or the proposed federal cyberbullying act, which aims to turn teens into federal felons, in spite of the fact that there is no federal juvenile justice system. New Jersey gun laws jumped the shark a long time ago and haven’t looked back.
The same is true with federal “honest services” fraud. In the words of one former lawmaker who fed the overcriminalization beast only to see it turn on him:
When I served in Congress, I vigorously opposed any expansion of federal agency authority. All too often, however, I exempted the Justice Department from my efforts because I wanted to give law enforcement the power it needed to keep our country safe from dangerous individuals. After enduring a years-long investigation into crimes my wife and I did not commit, and after watching the outrageous prosecution of Kevin Ring, I have serious doubts about whether I was wise to faithfully support the Justice Department. I strongly encourage the new Congress to examine the guidance and leeway the Department gives to federal prosecutors, and to refrain from passing any new vague criminal laws which seem to invite the worst prosecutorial abuse.
This is just the tip of the iceberg. For more on overcriminalization, take a look at Tim Lynch’s book, In the Name of Justice, or Harvey Silverglate’s Three Felonies a Day.
Will Governor Christie Pardon Brian Aitken?
Brian Aitken, a finance student at NYU and economic scholar at the Foundation of Economic Education, ran afoul of New Jersey’s draconian gun laws when he was arrested while transporting two handguns unloaded and locked in the trunk of his car.
After separating from his wife in 2008, Aitken moved from Colorado to his native home of New Jersey the end of that year, to be closer to his son.
Shortly thereafter, in January 2009, Aitken – according to one account – “became distraught, muttered something to his mother, and left his parents’ home in Mount Laurel, NJ,” after his ex-wife canceled a visit with their son.
At that point, his mother, who is a trained social worker, called the police out of concern. That’s when things went downhill for Aitken. After the police caught up with him, they determined he wasn’t a threat to his or anyone else’s safety, but proceeded to search his car anyway. Upon finding the guns, police pressed weapons charges against Aitken.
New Jersey law makes it nearly impossible to get a concealed carry license, and you can’t otherwise take a gun out of your home unless it is in connection with several enumerated exceptions. Moving from one residence to another is one of the exceptions. Aitken was in the process of moving; it took police over two hours to remove all of his possessions from the car before they found the two guns in the trunk.
The jury never heard about the moving exception, virtually guaranteeing Brian’s conviction.
Yet Judge Morley wouldn’t allow Aitken to claim the exemption for transporting guns between residences. He wouldn’t even let the jury know about it. During deliberations, the jurors asked three times about exceptions to the law, which suggests they weren’t comfortable convicting Aitken. Morley refused to answer them all three times. Gilbert and Nappen, Aitken’s lawyers, say he also should have been protected by a federal law that forbids states from prosecuting gun owners who are transporting guns between residences. Morley would not let Aitken cite that provision either.
Brian Aitken is currently serving seven years in a state prison. Now a website and Facebook page are asking Governor Chris Christie to pardon Aitken.
Gov. Christie has proven a sensible leader and shown political courage in taking on his state’s debt-ridden “Situation.” Here’s hoping that Christie, a former prosecutor, will see that Aitken’s continued imprisonment does nothing to serve the interests of justice.
Prosecutorial Misconduct
A federal prosecutor’s misconduct tilted the scales of justice against Antonio Lyons, an Orlando businessman. Lyons served three years in prison before his attorney discovered statements from a witness that differed from the testimony given at trial. That was just the tip of the iceberg.
For more than a week in 2001, the jurors listened to one witness after another, almost all of them prison inmates, describe how Lyons had sold them packages of cocaine. One said that Lyons, who ran clothing shops and nightclubs around Orlando, tried to hire him to kill two drug dealers.
But the federal prosecutors handling the case did not let the jury hear all the facts.
Instead, the prosecutors covered up evidence that could have discredited many of Lyons’ accusers. They never disclosed that a convict who claimed to have purchased hundreds of pounds of cocaine from Lyons struggled to identify his photograph. And they hid the fact that prosecutors had promised to let others out of prison early in exchange for their cooperation.
An investigative project by USA Today documented 201 cases from across the nation in which federal judges found that prosecutors broke the rules. It includes a database and interactive map chronicling prosecutorial misconduct. Read the whole thing.
Check out Tim Lynch’s In the Name of Justice: Leading Experts Reexamine the Classic Article “The Aims of the Criminal Law” and Harvey Silverglate’s Three Felonies a Day: How the Feds Target the Innocent for more on the criminal justice system.
Cybertormenting Now Illegal in Louisiana
Louisiana has a new law on the books that outlaws “any electronic textual, visual, written, or oral communication with the malicious and willful intent to coerce, abuse, torment, or intimidate a person under the age of eighteen.”
This is a statute aimed at “cyberbullying,” the increasingly common use of text messages and social media as a vehicle for teenage taunting. The issue caught its first big headlines with the Lori Drew case. The case against the Missouri woman hailed into court in California for suicide-inducing internet harassment was a stretch of an existing federal statute that was ultimately thrown out. The government continues to contend that violating a website’s terms of service is a federal crime.
The federal cyberbullying statute proposed last year was a monstrosity. Felony time (up to two years) for a statute that will primarily be used against minors is excessive. There is no dedicated federal juvenile justice system, and this is not a good excuse to create one. Harvey Silverglate, Cato Adjunct Scholar and author of Three Felonies a Day: How the Feds Target the Innocent, testified at the hearings last fall.
The state laws aimed at cyberbullying are generally less onerous than the proposed federal one. The crime is a misdemeanor, and offenders under the age of seventeen are directed to the juvenile justice system. As Eugene Volokh points out, this law is still pretty bad:
Would publishing an online editorial — or a blog post — condemning an underage criminal for his crimes qualify as “malicious and willful intent to … abuse [or] torment”? Or would it not be “malicious” because it would be justified by righteous indignation (in which case I take it courts would have to decide what indignation is righteous and what is not)? Note that the law isn’t limited to messages sent only to the target, but includes speech published to the world at large as well.
Would sending a message castigating an ex-lover for cheating (assuming both the ex-lover and the sender are 17) qualify as “malicious and willful intent to … abuse [or] torment”? What if the message “speak[s] insultingly, harshly, and unjustly” (unjustly, that is, in the view of the judge), which is the dictionary definition of “abuse” that seems most relevant to speech?
So either the law is too broad, or it will be narrowed only by reading “malicious” as limited to speech that courts dislike — which raises the risk of impermissible content and viewpoint discrimination. And until the narrowing takes place (and maybe even after that), the law will be remarkably vague.
The exception for religious speech is also probably unconstitutional, because it treats nonreligious speech worse than religious speech. Cf. R.A.V. v. City of St. Paul (holding that content-based distinctions are presumptively unconstitutional even when they operate within an unprotected category of speech).
Volokh has provided excellent coverage of the development of this law — from proposal, to adoption, and even the scrivener’s error that purports to protect free speech from cyberbullying charges via the state constitution’s right-to-bail provision. He coined the “cybertormenting” term as well, which has the rhetorical flair appropriate for a legislative overreach of this magnitude.
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