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I don't think our country is in a good place right now. I propose we retrace our steps and find the forks in the road that led us to this bad place. How we got here may provide the road map back.

Today I would like to look at an example of going down the wrong path that culminated in a malevolent nexus of civil rights violations, economic injustice, and perversion of the judicial system.

Fourth Amendment Fork in the Road: Civil Forfeiture

One day the government and the judicial system decided that the Fourth Amendment did not apply universally and that certain classes of criminals could be permanently deprived of their property prior to a conviction by any court. I am referring to the seizure of assets deployed against suspected drug offenders in our long-term unsuccessful War Against Drugs.

The Constitution itself does not identify any specific class of criminal that is denied the full protections of the Fourth Amendment. It certainly could have. The Founding Fathers could have said "except for treason" or "except for sedition" or any other crime they wanted to single out as being particularly heinous and deserving of immediate forfeiture of rights and due process. They were willing to let the judicial process play out regardless of the purported crime.

All that ended with the War on Drugs. In the waging of this domestic war, our government passed laws that said that there was one class of criminal so detrimental to the fabric of society that they did not deserve to enjoy the protections of the Fourth Amendment along with the rest of us. And somehow, we bought that. Or we didn't think about it. Or we didn't care, because the vast majority of us see those laws as having no impact on us personally. Nancy Reagan's Just Say No campaign mutated into Just Say No (To The Fourth Amendment For "Those" People).

I was going to call the War on Drugs "fruitless", but that would be entirely opposite to my point. The implementation of civil seizure has been very fruitful for law enforcement entities which are allowed to keep a percentage of the assets and fund their departments with it, often buying systems and equipment that no town or city could justify in a municipal budget as being needs based. What's not to like? The police department gets their helicopter or tank or whatever else is on the quasi-military shopping list and it's all off-budget.

What's not to like is that we have now removed the building block of trust, the block that says that says police enforcement is impartial and disinterested. How can it be, if they directly profit?

Profit- the word that lurks behind so many horrible laws, policies and practices. This is the fallacy of reason and logic in the conservative tenet that everything in government must pay for itself and/or even become profitable, as through the administration of police powers and the criminal justice system was comparable to a corner grocery store.

The long term society rending result of this policy is that it provided a club that has been used to beat the poor and the literally defenseless with. This is an article from Business Insider that contains their own commentary plus links to a seminal New Yorker article concerning  civil forfeiture:

The Cops Can Take Away Your Cash, House and Car, Even If You're Never Convicted Of A Crime

The New Yorker profiled one elderly West Philadelphia couple, Mary and Leon Adams, whose home was seized after their son allegedly sold $20 worth of pot on their porch. (They received an eviction notice but were able to stay in their home during the forfeiture proceedings because of Leon's health conditions.) They were never even charged with a crime.

Read more:

For further insight in how this policy turned our judicial system upside down and removed the presumption of innocence from our system, read this article where it is acknowledged openly that that was the goal

(Hat tip to Business Insider which has great coverage of this topic)

How Scary Drug Raids Became a Cash Cow For America's Police
The DEA’s [Bill] Ruzzamenti was rather frank about it in an interview with Ray Raphael for his 1985 book on the CAMP program, Cash Crop.

“The biggest focus of what we’re doing is going to be on land seizures,” Ruzzamenti said. “Anybody who is growing marijuana on their land, we’re going to take their land. It’s as simple as that. It’s done civilly through the federal system. Basically, people have to prove that they weren’t involved and didn’t know about it. Just the act of having marijuana grown on your land is enough to tie it up; then you have to turn around and prove you’re innocent. It reverses the burden of proof.”

Read more:

Now lest you think this issue is limited to the inhabitants of small Texas towns ruled by imperial Sheriff overlords or to the residents  of the poorer sections of large metropolitan areas, you are wrong.

I personally was pretty well shocked out of my complacent shoes when this storycame down the pike last year. This particular case happened in Massachusetts. It involved the DEA, the US Attorney's Office, and the local police department. The synopsis comes from The Institute for Justice who represented the defendant.

Seeking to circumvent state law and cash in on the profits, the Tewksbury Police Department teamed up with the United States Department of Justice to take and sell the Caswell’s property because a tiny fraction of people staying there during the past 14 years were arrested for drug crimes. Keep in mind, the Caswells themselves have worked closely with law enforcement officials to prevent and report crime on their property. And during those 14 years, the government pointed to a mere fifteen arrests—out of more than 200,000 rooms rented during that time by the Caswells.

Despite all this, the Caswells could have lost literally everything they had worked for because of this effort by federal and local law enforcement officials not to pursue justice, but rather to police for profit.

Pretty terrible, right? As terrible as the synopsis is, it's even worse when you know the backstory. The question to ask yourself is WHY were the Caswell's targeted, with such a skimpy story to hang the case on? Well, here is why: from
The workings of the asset forfeiture machine were partially revealed in the deposition of Vincent Kelly, DEA Special Agent in the New England office asset forfeiture unit. He testified under oath that his job was to look for high-dollar property with no mortgage to be forfeited. Kelly explained clearly how he checked the Registry of Deeds "to find out who owns the property and how much equity is on the property." Then, the DEA would contact local police to see how many drug arrests or other serious crimes been committed on the property.

Kelly said it was DEA policy to deal only with property worth at least $50,000.00. With Caswell Motel's worth between $1.5 and $1.8 million dollars, it was ripe for forfeiture since many drug arrests had occurred there.

In another sign that the motel had been the target of selective prosecution, defense attorneys and the Lowell Sun also uncovered evidence that at one point, narcotic officers and police made more arrests on the premises of Walmart, IHop, and Home Depot, nearby businesses also located off I-95 on Main Street. From 2010-2012, the attorneys said 19 drug arrests were made at Caswell Motel, with 24 drug arrests on Walmart's premises, 14 at Home Depot and five each at Applebee's and Burger King. But those are all deep-pocketed corporations with legions of lawyers; the Caswell family and its motel was not.

Are you following the sequence of events there? First the DEA looks for properties with high equity and no mortgages, then they contact local police authorities to see if any drug crimes have been committed. They also actively avoid properties with corporate or deep pocket owners who could mount an effective defense.

They are Victim Shopping! If this doesn't convince you to scream like Al Pacino that "You're out of order! You're out of order! The whole trial is out of order! They're out of order!" then I don't know what will.

I am not writing an apologia for drug offenders. But I do think there is enough empirical and anecdotal evidence to support the fact that this practice and policy of pre-conviction civil forfeiture has been abused beyond words, has victimized innocents, and has provided levers of power that have corrupted law enforcement and judicial processes at every level.

The drug suspects are the canary in the mine shaft for the rest of us. If rights can be suspended for suspected drug violators, why can't they be suspended for other classes of suspected miscreants, to be determined at a later time by TPTB? All citizens suspected of ANY crime, without carve-outs, deserve the full force and protection of the Fourth Amendment.

We took the wrong fork in the road and continued on the road to hell when we went down the path with the sign that said:

Some People Don't Deserve Justice

(This is the first installment of a Road To Hell series. In future diaries we will look at other Forks In the Road.)

Originally posted to Phoebe Loosinhouse on Thu Jan 23, 2014 at 10:27 AM PST.

Also republished by Police Accountability Group, DKos Cannabis Law and Drug War Reform, and Community Spotlight.

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