Runaway crime has been replaced by rogue executive power.
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.
