In the US if the authorities use civil forfeiture they can keep your property even when you aren't even charged with a crime and there is little you can do to get it back.
http://en.wikipedia.org/wiki/Asset_forfeiture
It is generally used in organized crime and drug cases but has expanded greatly in recent years. It is now routinely used to seize cars in DUI cases. They can and do legally keep the property without even charging the driver with DUI or any other crime.
http://www.slate.com/id/2243428/
I don't know about the UK but I am surprised any property was returned.
Alarmist. Civil asset forfeiture is not carte blanche for local and state governments to take property. There is an elaborate due process system surrounding it. The often-cited statistics about how few forfeiture cases are accompanied by criminal convictions are obviously and clearly biased: much crime goes unpunished, and if you are in fact running drugs (the nexus of the vast and overwhelming majority of forfeiture cases), you're probably not going to go to court to get your Escalade back.
In one sense (I'm not married to this argument), declaring all asset forfeiture to be an unconstitutional tyannical abhorrence --- call this the "Radley Balko Line Of Attack" --- plays into the hands of those who would abuse it. There is virtually no chance that the fundamental process of asset forfeiture will be reworked. Both liberals and conservatives, both Republicans and Democrats all support it. Unsurprisingly, because in most cases, you really do want seized those things the government seizes.
A far better way to foil people who would abuse civil forfeiture would be to educate people about the processes made available to people to recover property. One simple point rarely brought up by Reason Magazine: a simple written request filed within something like 90 days of the forfeiture is all it takes to force the government to defend their seizure in court.
It's only alarmist when it isn't happening to you or someone you love. It happened to my nephew, several thousand dollars in cash seized from his college dorm room (he was a bartender, but should it matter? it isn't illegal to have cash is it?), no charges filed and it would have cost him more than they seized to attempt to get it returned. Back in the 80s, when I was in high school they seized a local family's home because someone said they bought acid from a boy who lived there. It made big news back then, this stuff was new. The family lost the legal battle, they couldn't prove they didn't know their kid was selling acid. The authorities couldn't prove he was selling acid either, but that doesn't matter in these cases. To have your property returned, you must prove you are innocent or ignorant which are both almost impossible things to prove.
Why would it cost him significantly to have it returned? According to US code, a single note is all it takes to force a court procedure where the prosecutor has to demonstrate a nexus between the money and a crime. What would it cost your brother to go to court by himself? What would he have to lose?
Look, I see the issue here. Clearly, if the government was randomly taking thousands of dollars from people and forcing them to go to court to keep it, that would be a miscarriage of justice. But that's probably not what happens in reality.
Under what auspices was your nephew's cash seized? What's the other side of this story? Is there really not another side to this story?
There is. A kid left the frat and drowned in a river (it was a frat room not a dorm room). Drugs were suspected. I'm not sure why. They executed a warrant and took the money. BTW the autopsy found no drugs in the dead student's system.
Anyway, you make this sound so simple, just send a note and go to court. Most people are extremely intimidated by this stuff and they just want it to end. Especially when you've already been violated and had your reputation impugned. The advice they were given was it wasn't worth it.
"In 80 percent of such cases, the owner is not charged. The standard of proof to be met by the authorities is the minimal "probable cause" standard. If the owner wishes to regain possession, he has the onus of proving in court that the property is "innocent"; his standard of proof is higher: a preponderance of the evidence. In some cases, property has been seized for acts someone other than the owner performed."
http://www.cato.org/pubs/policy_report/pr-ma-hy.html
edit: I doubt they are doing this randomly, but they seem to be opportunistic and they do target certain types of people - youth, poor, minorities. The right to seize valuable assets is corrupting in nature. I think you'd see it drop dramatically if the government wasn't allowed to keep the assets as a fund raising mechanism.
Again: that 80% stat? I'm certain it's true, but it's meaningless. The stat you want is, how often are challenges to seizures denied. Because --- and I'm not saying this is what happened with your nephew --- it is very likely the reason that 80% of those seizures don't match up with a conviction is that the people whose assets are seized are in fact criminals.
Recognizing that doesn't mean I think civil asset forfeiture is problem-free or that Radley Balko doesn't have an argument with his stories on this issue. But you can't just cite that stat as if it opened and shut the case.
I agree that one sensible step to take would be to foreclose on the use of the assets as local funding mechanisms. I agree entirely with that.
Finally: I think your nephew was given bad advice.
I don't think it matters much whether many challenges are successful. When it takes years and costs more in unrecoverable legal fees (it's a civil court case, not merely a request) than most seized property is actually worth, very few victims are going to bother.
I don't know how bad it is at the state level, but according to the US Code, at the federal level it shouldn't take years; there's a rigid statutory timeline on hearings, measured in increments of 30 days.
> In some cases, property has been seized for acts someone other than the owner performed.
My first father in law (that sounds weird) had a SUV stolen. On the same afternoon, it was involved in two robberies - one supermarket, one bank - and one murder (one of the robbers was shot by his colleagues). It took him a while to get the car back.
Seizing 80 year olds houses because they grandson was caught with weed or seizing the home of a pair of doctors who were giving weed to cancer patients.
Then strangely not applying the same law when the mayor/governer's kids are caught with a joint.
What's your point? How many cops get speeding tickets? Did you know that technically, it's just as illegal for them to casually run red lights in their squad cars as it is for you to? Shall we do away with red lights?
My point isn't that asset forfeiture is invariably defensible. It is obviously abused. My point is that it's being built up into a bogeyman. This perspective, perversely, robs people of their ability to defend themselves against it.
My point is that once local politics - remember it isn't cops that seize property it's DAs - kicks in then laws which are only for use against terrorists/makejor drugs dealers/organised crime can be used against ordinary people.
And given the population sizes of terrorists/drug dealers/etc compared to ordinary people - they are almsot always used against ordinary people
Cite evidence for that last sentence. It is an extraordinary claim: that law enforcement is in fact a massive criminal conspiracy used to defraud ordinary people of their lawful property.
He didn't make that claim. He claimed that the asset forfeiture laws are almost always used against "ordinary people," whom he distinguishes from "drug dealers/terrorists/etc."
In the UK 'Regulatory Investigative Powers' RIP was introduced to catch terrorists and international drug dealers. It allows government to get pretty much unlimited snooping ability on phones, web visits, cell phone location etc.
Within a year the majority of RIP requests were from local city councils famously investigating cases of dog crap and people giving a false address to get kids into better schools.
That is certainly an interesting and uncited fact, but it hardly qualifies as evidence that forfeiture laws are almost always used against ordinary people.
It is generally used in organized crime and drug cases but has expanded greatly in recent years. It is now routinely used to seize cars in DUI cases. They can and do legally keep the property without even charging the driver with DUI or any other crime. http://www.slate.com/id/2243428/
I don't know about the UK but I am surprised any property was returned.