After the tumultuous Attorney Generalship of Eric Holder, what the country badly needs is a replacement who will uphold the law fairly and guard against injustices perpetrated by the government. President Obama’s nominee to replace him, federal prosecutor Loretta Lynch is questionable in that regard because of her enthusiastic embrace of civil asset forfeiture, which often deprives perfectly innocent people of their property.
In an editorial published November 22, “Loretta Lynch’s Money Pot,” the Wall Street Journal revealed that during her tenure as U.S. attorney for the Eastern District of New York, Ms. Lynch has used civil asset forfeiture in more than 120 cases, raking in some $113 million for federal and local coffers. The trouble with civil asset forfeiture cases is that they frequently inflict severe losses on people who have only the most tenuous connection with a crime – or even no connection at all. (For some very distressing examples, see my September 12 Forbes article.)
The editorial discloses the facts of the Bi-County Distributors case, overseen by Lynch’s office. Bi-County is a small business run by Jeffrey, Richard, and Mitch Hirsch. Their business deals largely in small amounts of cash and in May 2012, their account held $446,651.11, when it was confiscated entirely by Eastern District prosecutors.
Bi-County sells candy and snack food items to small retailers on Long Island, but, disfavored as such things may be by the Washington elite, that business is entirely legal. There has never been any allegation of any wrongdoing by the company or its owners, but they were under suspicion because of many cash deposits of less than $10,000. Under IRS regulations, banks must report cash deposits of $10,000 or more, but the feds look at substantial deposits of smaller amounts as grounds for suspicion, thinking that the depositor must be trying to avoid detection.
Now, if Ms. Lynch’s office had bothered to inquire about Bi-County’s business, they would have found that it is clean. But they did not bother to inquire. Under civil asset forfeiture, authorities can take money (or other property) and then dare the owner to battle through legal obstacles to get it back. To do that, the owner must prove innocence.
Charge someone with a crime and the burden of proving guilt is on the government, but confiscate property under civil asset forfeiture and the government keeps the spoils unless the owner is able to prove his innocence. That is not the way our system of justice is supposed to work.
Was this just a mistake, perhaps? Evidently not, because Lynch’s office has not seen fit to even file the required notice that it has taken the Hirsch’s money. Now that those inveterate opponents of government overreach, the Institute for Justice, has filed a case to force the government’s hand (a case with the strange name In the Matter of the Seizure of $446,651.11) the brothers might get their money back. Eventually.
IJ’s statement on the case is damning to the notion that Ms. Lynch should be entrusted with the authority of the nation’s top law enforcement official. “Shockingly, in the two-and-a-half years since the seizure, the government has not filed a civil forfeiture action in court – it has just sat on the money and refuses to give it back. This total disregard of the Hirsch brothers’ due process rights means that they have never had a day in court to challenge the seizure and demonstrate their innocence.”
Civil asset forfeiture has been a tremendous windfall for prosecutors and police departments, some of which have attended seminars coaching them on what property is best to grab, as we learned in this November 9thNew York Times article. Law enforcement officials know that they’re often victimizing people who have committed no crime, but aren’t much concerned about that. They say that criminals frequently are hurt by the loss of cash, vehicles, and other property; besides, they need the additional resources that seizures give them.
Those arguments are irrelevant. In America, the crucial function of the law is to protect the life, liberty, and property of the innocent. Even if asset forfeitures do more damage to criminals than to innocent people, that is no reason to sanction injustices.
The Hippocratic Oath for medical doctors calls upon them to “first, do no harm.” We ought to have a similar oath for all law enforcement officials, obligating them to “first, do no injustice.”
Sadly, America has reached the point where many prosecutors are so interested in racking up convictions that they are barely interested in the guilt or innocence of those they target, and similarly so interested in maximizing the haul of assets from people that their guilt or innocence doesn’t matter either.
When the Senate holds confirmation hearings on the Lynch nomination, a key question should be what if anything she would do as Attorney General to protect people from being trampled by rampaging law enforcement officials, including but not limited to civil asset forfeiture.
