Government and Fences

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary James Madison, 1788.

Civil asset forfeiture, or forfeiture of contraband as it is referred to in Chapter 59 of the Texas Code of Criminal Procedure, is the process by which the state may confiscate assets of an individual that are alleged to be proceeds or instruments of crime. Current law allows such property to be seized even if the property owner is never charged, much less convicted of a crime. If charges are brought, the seized property may still be disposed of prior to conviction, or in the case of acquittal, does not have to be returned to the owner.

It is a powerful tool in the hands of law enforcement developed and often used to attack drug dealers, cartels, and human trafficking rings. It also has increasingly become a significant source of government funds.

Like many government ideas gone awry, the thought behind civil asset forfeitures may have had a kernel of sense in it, when it was first conceived. It is right that the government requires a convicted criminal to make restitution, and such restitution should include ill-gotten gains. It may well be prudent too for civil authorities to freeze certain property clearly connected with criminal activity until sentencing has occurred.

However, the seizure of property, the fruit of someones life and liberty, in the name of justice, must be performed with care, humility, and due process, not like highway robbery.

Because of the propensity of government officials to overstep their bounds in doing their jobs, our Constitution requires: The right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It also stipulates that No person . . . shall be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use, without just compensation.

Even a cursory reading of those provisions would lead an individual to believe that seizure and forfeiture of assets should, at a minimum, require a warrant and due process.

But that isnt what always happens. One law enforcement agent told me he never uses the criminal forfeiture process, because the civil asset forfeiture process is much easier. You dont have to convict the owner of a crime.

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Government and Fences