We have been following federal interference with medical marijuana in California, where the primary weapon of the government has been asset forfeiture. That same asset threat has been raised in Colorado. Let’s see why asset forfeiture is an attractive route for federal prosecutors. There are two types of legal action in our nation — civil and criminal. In a criminal case the government, as prosecutor, must prove its case beyond a reasonable doubt, which is the highest burden of proof in our law. In a civil case the burden of proof is on the “moving party” and that burden is proof by a preponderance of the evidence. That’s a lower standard of proof. Since the prosecutor decides which way to go, they choose the one that is easiest to win.
A subset of civil actions are civil asset forfeitures, an outgrowith of the drug war. Forfeitures rest on the legal theory that property can be guilty of a crime. Once authorities establish a nexus between a piece of property — a sum of cash, a building, a car — and criminal activity—most commonly drug cases, but also prostitution, DWI, and white collar crime—the owner of the property must prove his innocence or lose his property, even if he’s never charged with an underlying crime. In most jurisdictions, seized cash and the proceeds from the auctioned property go back to the police departments and prosecutors’ offices responsible for the seizure. The scheme, which creates unsavory incentives for public officials, became popular because of a 1984 federal bill designed to encourage aggressive enforcement.
One tactic [in forfeiture cases] is to get a defendant to settle by handing over an amount of money somewhat less than it would cost him to fight the case. Because this isn’t actually a court-ordered forfeiture, the money can go to the police department. In another scheme, called “adoption,” state law enforcement agencies call in the feds on a forfeiture case. The case then is governed by federal law—which allows for up to 80 percent of the money to go back to local law enforcement after the federal government takes it cut, effectively circumventing state legislators.
So, rather than charge crime, the feds merely seize money. And you know how the government is about money.
Lots more on these actions here. [image: google images legal]
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