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June 11, 2015

An End To Unjust Asset Forfeiture

By Michael H. Joseph

There has recently been a change in the legal procedures involving asset Forfeiture. Under the old program formally known as Federally Adopted Forfeitures local officials were allowed to seize items like cars, homes, money, etc. of people if the officers had any suspicion that the property was derived from criminal activity. Typically after the property was seized, local officials would turn the funds over the federal government because the federal government had less burdensome procedures than New York State. New York State accords greater procedural requirements than the Federal government, which would just send out a notice saying you have 90 days to file a claim and a failure to do so is a waiver of the property.

Attorney General Eric Holder has decided to make the change because reports show that police officers abused the old law. Under the old law officers would pull drivers over, force them to agree to warrantless searches, and take large amounts of cash without any evidence that the person they stopped had done anything wrong. Most often people of color and immigrants were unjustly targeted by officers in these civil seizures. It was easy for officers to target people under the old law because police did not need to prove a crime to use civil forfeiture. Often undocumented immigrants are unable to open bank accounts, so they have no choice but to keep their money in cash, which makes them a target.

Police also misused the funds they would seize. Police departments say they would use the money to fund overtime pay for officers, and purchase new equipment; however this was not always the case. Reports found that many times officers would use the money to buy luxury cars and military grade weapons.

Over the past decade people have had to fight the government to get their money back, often having to hire lawyers to do so and sometimes losing their livelihood while fighting the battle. Hopefully this new law will prevent police officers from abusing their power, and protect citizen’s possessions.

Recently a woman indicted on charges of Medicare fraud had her assets frozen up to 45 million which is the amount she is said to have laundered. Her counsel pleaded with the judge not to freeze her assets up to 45 million because it was more than her net worth, and she could have only profited 4.5 million from the fraud. Unfortunately the judge decided to freeze her assets, and when she appealed his decision to the 11th circuit the panel upheld the original judge’s decision.

Although it is understandable for the government to freeze assets In relation to a crime it is extremely inconvenient to the defendant to have all their assets frozen whether they are in relation to the crime or not and often times, people whose assets are taken, have not even committed a crime. Freezing someone’s assets prior to conviction is extremely problematic because it restricts their ability to attain private legal counsel they may need to establish their innocence in the first place.

Under the new law local officers can no longer use federal law to seize cash, cars, or other property without a warrant. The only exceptions allowed are for seizing illegal firearms, illegal ammunition, explosives and property associated with child pornography. Holder said changes like this are needed to make our justice system fairer.

 
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