Right on Crime’s Director Derek Cohen went on air with Fox Business last night in response to the DOJ’s announcement that it had used civil asset forfeiture to capture ill-gotten gains from the Bernie Madoff Ponzi scheme—in an effort to restitute victims of his crimes. While victim restitution is among the worthy goals of asset forfeiture, experience has shown that asset forfeiture laws have cast a dangerously broad net that allows government agencies to seize and repurpose cash and other assets from innocent Americans as well—often without any convictions, or even an arrest.
A recent Wall Street Journal article justified the use of civil forfeiture in Madoff’s case, stating that there exist multiple layers of “judicial protection” to insulate innocent property owners from any abuses. There are difficulties with this line of argument, however. First, despite the fact that civil forfeiture was used to seize assets possessed by third-parties, not Madoff himself, those assets were already found to be “tainted”—or the fruit of illegality—by a court when they convicted Madoff of his crimes. In other words, it’s that conviction which justified government to seize assets proven to have a nexus to illegal behavior—a connection that isn’t procedurally established in most other civil forfeiture cases. Ultimately, Bernie Madoff’s case isn’t an argument for civil forfeiture; it’s that forfeiture was used legitimately here given his criminal conviction.
Cohen provided a second rejoinder in his comments, stating that a recent report from the DOJ’s own inspector general found that most cash seizures—over 80%—performed by the DEA and other agencies which resulted in forfeiture were done administratively, which don’t require judicial involvement whatsoever. Because the value of most assets seized and forfeited are often far less than the cost of mounting a legal fight, most people don’t bother. While it isn’t surprising that a bona fide criminal wouldn’t contest such forfeitures, the flip side is that the cards are well-stacked against any innocent owner who wishes to fight back in such situations. These uncontested forfeitures therefore end in default judgments, which amount to little more than an administrative rubber stamp. Approximately $3.2 billion was seized by the DEA alone between 2007-2016 using this process. The fact of the matter is that the genuine “judicial protections” which citizens may avail themselves of in criminal court don’t exist in civil forfeiture cases, and therein lies the rub.
To watch Cohen’s full comments, click below: