Posted by on February 22, 2017

Sam Harris once said, in essence, that he would rather have a randomly selected person as president, as horrifying a prospect as that may be, than Donald Trump.  Harris reasoned that, although there is a good chance that the random person would be even more ignorant than Donald Trump, at least he would be sufficiently awed by the responsibilities of the office to listen to wiser counsel.  Not with Trump.  He is a very frightening combination of gross ignorance with absolute self-confidence.

These qualities were recently fully on display in a meeting with county sheriffs.  This is Trump at his scary worst.

But first let’s talk about “civil asset forfeiture” since I doubt that Trump is the only person with no knowledge of this subject.  Prepare for a trip down the rabbit hole.

The idea behind civil asset forfeiture, and particularly its distinction from criminal asset forfeiture, is that the state can initiate a lawsuit not against the criminal (a so-called in personam action), but against the assets used in or deriving from a crime (a so-called in rem action).  This sometimes leads to cases with bizarre names such as State of Texas v. One Gold Crucifix or United States v. $35,651.11 in U.S. Currency.  But this is just the beginning of the strangeness.

As anyone who watches courtroom dramas on TV knows, the general rule in US law is that the accused is innocent until proven guilty and that the state has to prove its case beyond a reasonable doubt.  These are the standards that apply, for example, to criminal asset forfeiture.  Not so with the civil variety.  In most states, and at the federal level, the burden of proof is shifted to the defendant, who is required to prove that the assets have not been tainted with criminal activity.  Moreover, the government’s standard of proof is reduced in most cases to a “preponderance of the evidence,” which means that guilt is at least 50.1% likely.  Finally, civil asset forfeiture can be pursued even in cases where the related party is not found guilty of a crime or even charged with one.

How did such a bizarre practice arise?  Its roots are in English maritime law, where it would have been difficult to bring an in personam action since the criminal often resided overseas; so this was replaced by an in rem action against, for example, the offending ship or cargo.  This was picked up by the US government for the enforcement of customs laws, which were, until the passage of the nefarious 16th Amendment[1], the main source of funding for the federal government.   Civil asset forfeiture then lay dormant for a many years until it was revived during Prohibition.  Another period of dormancy then ensued until the second futile attempt at prohibition, also known as the War on Drugs.

These rules would already be fertile ground for police abuses.  But they are made even worse by another feature: much or all of the proceeds from the forfeiture can usually be kept by the police and the prosecutors!  This adds a financial motive to their normal enthusiasm for finding guilt.  And the numbers are not trivial.  The estimate for 2013 for the federal level alone was $4 billion; the state and local levels would have added billions more.  Although in theory the money is intended to be used to cover the normal costs of law enforcement, in practice it has sometimes been used for fancy new equipment, parties and “seminars” in places like Las Vegas or Hawaii.

Horror stories are not hard to find.  Owners of cash businesses, such as restaurants and bars, whose bank accounts were seized after repeated cash deposits drew suspicion.  Drivers, carrying cash to purchase a used car or business, or set up life in a new city, getting pulled over for routine traffic violations and having the cash impounded.   A couple’s house being seized after their son was caught selling $40 worth of marijuana out of the basement.  Hotels being seized when they too were used for drug deals without the owners’ knowledge or approval.  A sailboat seized as a grossly disproportionate penalty after negligible amounts of marijuana were found on it.

Although the owner can challenge the forfeiture, it is often a lopsided fight.  Since it is a civil case, an impecunious owner has no right to a public defender.  The seizure also frequently puts the owner under huge financial and time pressure, which the police and prosecutors sometimes exploit by offering a rapid return of, say, half of the seized cash in return for waiving any rights to further claims.  In some states, the government is required to reimburse attorneys’ fees for successful claimants, but when this is not the case, the cost of successfully fighting a forfeiture can consume much of the proceeds.

With all of this against it, is it any surprise that civil asset forfeiture has drawn fire from both the left (such as the ACLU) and the right (such as the Heritage Foundation)?  Even more forebodingly, the late-night comedians have joined in.  Civil asset forfeiture has been on the receiving end of a John Oliver broadside.

Now, back to Trump.  Watch the video of the meeting (from minutes 21:30 to 27:20, to spare you the entire nauseating lovefest[2]).  It is clear that Trump is clueless on the subject when a sheriff requests his support for civil asset forfeiture.  In these circumstances, the normal response is to mutter something non-committal and promise to get back on the subject.   But not Trump.  This would require an outbreak of humility and self-awareness completely out of character.  Instead, he allows himself to be led by the nose until he is openly wondering whether additional legislation or, even worse, his newest plaything (an Executive Order) is needed.  He then ends with the fatuous threat to “destroy the career” of a state senator who is proposing reform legislation.  (I heard a subsequent interview with the relevant Republican state senator, Konni Burton, and – no surprise here – she is infinitely more knowledgeable on the subject than Trump.)

And we can’t expect that the new Attorney General, Jeff Sessions, is going to make Trump any the wiser.  As an un-reconstructed drug warrior, Sessions is all in favour of civil asset forfeiture, collateral damage notwithstanding.   Of course, this issue was never emphasised by the Democrats during Sessions’ confirmation hearings.  Instead, they chose to dwell on 30-year-old accusations of racism.  For the Democrats, you can be a monster so long as you do not commit the unpardonable sin of treating anyone with differential monstrosity.

I have recently read about something called the “Dunning-Kruger Effect,” named after the research psychologists who identified it.  It was described as follows:

The essence of the effect is that the less skilled or competent you are, the more confident you are that you’re actually very good at what you do….The reason [for this] turns out to be the absence of a quality called “metacognition,” the ability to step back and see your own cognitive processes in perspective. Good singers know when they’ve hit a sour note, good directors know when a scene in a play isn’t working, and intellectually self-aware people know when they’re out of their depth. Their less successful counterparts can’t tell—which can lead to a lot of bad music, boring drama, and maddening conversations. Worse, it’s very hard to educate or inform people who, when in doubt, just make stuff up. The least competent people turn out to be the ones least likely to realize they are wrong and others are right, the most likely to respond to their own ignorance by trying to fake it, and the least able to learn anything.

Imagine what happens when a D-K sufferer scrapes into the White House and takes this electoral victory as proof of his superior qualities.[3]  This is “Dunning-Kruger on Steroids.”

A New Feature: WTF?

In the era of Trump, I have decided to add a new periodic feature to the blog: WTF?  This will briefly highlight actions so bizarrely wrongheaded that they won’t even require much comment.  The first examples are below.

Roger Barris

Weybridge, United Kingdom

 

WTF?

Steve Bannon with a permanent seat on the National Security Council?  Jared Kushner, the 36-year-old real estate guy from New York City, as special peace envoy for the Middle East, because it’s such an easy job?  WTF?

 

[1] The 16th Amendment allowed the federal income tax.  This was a critical event in the creation of the Leviathan state.  The amendment was passed with the strong backing of President Woodrow Wilson, which is one of the reasons why, along with his taking America into World War I and his support for the 17th Amendment (allowing the direct election of Senators and thereby undermining a key republican brake on the government), Wilson was one of the most disastrous presidents in US history.

[2] Trump’s infatuation with authority figures, such as the police, the military and Vladimir Putin, is very disturbing.

[3] Yes, folks, this is why we are going to continue to hear about the election for the next four years.  This first month is not an anomaly.

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Posted in: Policy, Politics

Comments

  1. Jack Rubin
    February 22, 2017

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    Civil asset forfeiture is one of those things that, at first, sounds like reasonable policy. When NYC took the cars of johns cruising for hookers, for example. But much like the frog in the pot of cold water, as the heat is increased, it begins to get painful. As CAF is a policy without any break, it is careening out of control. And then when the crux of the matter is actually inspected, it turns out that it was faulty from its initiation.

    In my home state of Utah, Libertas, the local libertarian group, is fighting it tooth and nail in the state legislature. It is simply unconstitutional. Scrap it and move on is the logical response. Perhaps Gorsuch gets it.

    • Roger
      February 27, 2017

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      Yes, let’s hope that Gorsuch gets it. In general, he seems like an excellent choice. I have looked into his judicial record on CAF when he was on the court of appeals and it appears generally favorable to CAF (http://assetforfeiturelaw.us/wp-content/uploads/2017/02/Gorsuch-Cases.pdf). However, on the Court of Appeals, he is required to be very bound by precedent (I believe) and he may rule differently on the Supreme Court, where constitutionality becomes a bigger factor.

  2. MP
    February 22, 2017

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    Isn’t it “innocent until proven guilty” in US courts currently? Don’t think Trump has changed the Declaration of Human Rights in the Forst 32 days. Are you testing your loyal readers with some fake news?

    • Roger
      February 27, 2017

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      Unfortunately, in the area of Civil Asset Forfeiture, it isn’t “innocent until proven guilty” and it certainly isn’t “beyond a reasonable doubt.” What I am suggesting is that CAF runs against this general rule, which is why a great many people, on both the left and right, want to implement reforms in this area. The problem with Trump is that he doesn’t understand both sides of the issue. Instead of just admitting this and coming back with a thoughtful response, which could very well come down on the side of reform, he acted impulsively and in a way that could make it difficult for him to backtrack on this issue in the future. Trump’s deference to authority is also disturbing. I am not in the Black Lives Matter camp, but neither do I believe that the police are always right.

      But let me be crystal clear. By no means am I accusing Trump of trying to change the general rule of “innocent until proven guilty.” No fake news here.

      PS. From what I can tell, Trump’s nomination of Neil Gorsuch may go down in history as his greatest contribution to the American legal system. This decision may go a long way to justifying my mother’s vote for Trump (and a lot of other #NeverHillary votes). More Gorsuch, less Bannon!

  3. Anonymous
    February 22, 2017

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    I do not see why Trump gets singled out from the equally ignorant electorate the anglo-saxon (UK, US) libertarian media, the pundits, etc now love to sanctimoniously call ‘the people’, however small a fraction of the electorate the latter may represent: a minority in the US vote (Clinton got more votes), and just about 37% ‘leavers’ in the UK (largely old codgers who could not care less about the future and rural folk who don’t understand what’s going on), just slightly more than only one 3rd … And I hope it is not just mere resentment from the pseudo-intellectual libertarian class who did not have enough intellectual courage, enough historical education, to see that Trump is just the logical consequence of their pseudo-enlightened libertarian politics. Not even sure if libertarians have enough historical understanding to realise libertarianism has its origins in the political left.

    Meta-cognition is yet another hyper-democratic term coined by scientists aspiring to be philosophers: a quasi-scientific term for what we used to call philosophy: a critical analysis of what it means to be right, of what it means for something to be better than something else.

    But I understand that anyone engaging in political punditry these days, however sincere they would like to believe they are, will have to negotiate that last taboo in western politics: that ‘the people’ always get everything wrong. But pointing that out would bad for political punditry business, so I don’t expect anyone to have the courage of those mid-20th century US liberals, when you could still say things like this without fear of getting lynched by the undereducated majority.

    In short: there is, sadly, no more place for ‘informed’ political debate and its attendant web-forums. There is no aristocratic spine left in public life to make that work.

  4. Alfredo
    February 26, 2017

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    Thank for another excellent post, Roger. I was familiar with the basics on CAF, but I enjoyed learning about the history behind how this aberration became accepted practice. Our constitutional protections, you would think, should shield us from this sort of thing. I share your pessimism on the hope of any reform from the current administration. I did notice that Representative Amash of Michigan introduced a bill regarding CAF recently. Whether it has legs remains to be seen, but I hope it will at least raise the profile of the issue.

    Regarding your first footnote, I read your post shortly after having come across cspan’s poll of presidential historians that ranked Wilson as our 11th best president (https://www.c-span.org/presidentsurvey2017/?page=overall). It would seem the scoring system gives a boost to wartime presidents, while not penalizing them when they abused the Constitution (note Lincoln and FDR.)

    I would be curious to hear your thoughts on the future of the EPA. I believe the consensus is that it will be hollowed out, an outcome I think most Libertarians will cheer. But is there a recognized market mechanism that will dis-incentivize companies or individuals from damaging the environment in ways that directly injure other citizens? I have this on my mind as I am currently reading Jared Diamond’s “Collapse”, and the first section was devoted to discussing Montana’s Bitteroot Valley. Short version is, runoff from mining operations over the years damaged a nearby town’s water supply. By the time the townspeople became aware, the mining interests had closed up shop, so there was no way to seek redress.

    • Roger
      February 27, 2017

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      Hi Alfredo and thanks for the comments. Sorry I have taken so long to respond. For some reason, I am no longer receiving notices of comments being posted and therefore didn’t realize that some had been made.

      Justin Amash, who is probably the most libertarian Congressman these days, appears to be doing a great job on this and a bunch of other subjects (eg., Trump’s immigration EO). He is one worth watching, particularly because his has a very marketable personal narrative (the son of Palestinian refugee father and a Syrian immigrant mother). Here is a good article on Justin behind the WSJ paywall (https://www.wsj.com/articles/justin-amash-emerges-as-leading-critic-of-fellow-republican-donald-trump-1487599201). He also apparently did a very good job in a recent town hall (http://www.politico.com/story/2017/02/justin-amash-town-hall-obamacare-234886), in circumstances where less principled and knowledgeable Republicans have been wimping out or taking a beating.

      Yes, the polls of presidents are completely skewed by the liberal/interventionist inclinations of most of the historians who participate. Among other things, this biases the polls in favor of wartime presidents, both because of the war themselves (so long as they are thought to be “good” wars by the historians, that is, ones where America ignores the wise advice of John Quincy Adams not to go “abroad, in search of monsters to destroy”) and also because war greatly facilitates the expansion of the state. In Wilson’s case, I suspect that he also benefited from being an academic, which is sure to appeal to other academics. Wilson probably would have scored even higher except for the fact that his, and the entire Progressive Movement’s, racist and eugenic beliefs are becoming more widely known (http://www.econtalk.org/archives/2016/12/thomas_leonard.html).

      Regarding the EPA, environmental policy is a classic case of the “tragedy of the commons.” Although many libertarians of the Rothbardian type believe that these problems can be solved with a strict interpretation of property and trespass rights, which would allow victims of pollution to sue, I am not in this camp. This is because of examples like you mention but also because of the general difficulty and cost of reaching “Coasian bargains” ( https://en.wikipedia.org/wiki/Coase_theorem) in circumstances with a large number of polluters and a large number of victims, including with delayed consequences and the risk of “holdouts.” This strict interpretation of property rights may also, ironically, lead to situations of too little pollution being produced since, as you know, the right answer on pollution is not zero but an optimal amount which balances the benefits of polluting activities with the costs of the pollution.

      In general, I think that a suitable approach to pollution would involve the following elements:

      1. Use property rights and legal redress, followed by Coasian bargaining, to the extent possible. This is the “free market” solution to pollution and is mostly likely to produce optimal outcomes, tailored to the specific circumstances of the pollution and its victims. Recognize that the range of activities where property rights and legal redress can be relied upon is movable, depending on technological advances. In general, technological improvements tend to expand the range of voluntary, free-market actions. (As an example of this, think about private roads. The major impediment to private roads in the past is the high costs, in time and money, and imprecision of collecting tolls. With EZ Pass wireless technology, it obviously becomes easier to do this type of thing. Likewise, with wireless technology which is turning many previous “natural monopolies” into something competitive. For example, Google is testing wireless internet services (https://www.wired.com/2016/08/google-wireless-faster-route-home/) which will replace the “last mile” natural monopoly produced by previous systems.)

      2. This would still leave scope for government action. In these cases, the important thing is to avoid “command and control” regulation in favor of rules that use price incentives and market mechanisms (such as carbon taxes and “cap and trade”) to achieve the pollution goal. “Command and control” regulations, which I discussed in the Bootleggers and Baptists section of an earlier blog (http://www.economicmanblog.com/2016/04/30/helicopter-money/), are both inefficient, since they prescribe a specific technological and economic fix that may not be or remain suitable, and are massively prone to special interest “rent seeking.”

      In terms of whether Trump and Scott Pruitt, his nominee for the EPA, are going to “hollow out” the EPA, I don’t have a firm opinion. Pollution regulation is a balancing act. I think, as my earlier blog post makes clear or as is demonstrated by the shenanigans associated with the Dakota Access Pipeline (http://www.economicmanblog.com/2016/12/12/lessons-from-dakota/), that there is a good case to be made that the pendulum needs to be pushed in the opposite direction from where it swung during the Obama Administration. Certainly, a recent op-ed from the WSJ that I have read about Scott Pruitt (https://www.wsj.com/articles/scott-pruitts-back-to-basics-agenda-for-the-epa-1487375872) does not suggest that he intends to return us to the London of Charles Dickens anytime soon.

  5. Anonymous
    March 28, 2017

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    This may well be one of the lonely instances where Sam Harris gets something right. Let it be clear: NO-body is more ignorant than Donald Trump. Americans have the heavy burden of explaining of why they continue to love to elect people who are 2nd rate actors, peanut farmers, real estate agents, spoiled rich kids, etc people whose only merit is that they are a perfect reflection of the ambitions of their average electorate, of their ambition to be as average as their electorate?

    • Roger
      March 29, 2017

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      Although I agree with the comment, but I think that this is not only an American problem. Have you listened to Justin Trudeau lately? Have you seen what is going on in Poland and Hungary? Have you heard of Silvio Berlusconi? Didn’t France elect Francois Mitterand three times? Isn’t the head of the UK Labour Party Jeremy Corbin?

      The problem isn’t America. The problem is the political process.

      And, PS, another thing that Sam Harris definitely gets right is his views on religion.

  6. Anonymous
    March 29, 2017

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    Sam Harris got religion somewhat right, but that was after brighter people did that better. And please watch the debate on youtube with Scott Atran, an anthropologist who put in the time and intelligence to clarify the issue properly. Sam Harris is a derivative thinker. But he is an excellent populariser, if it was not for the fact that he should not venture beyond his area of expertise: he talks uninformed bullshit (to use your term) when it comes to big topics like ‘free will’ and ‘lying’ – he slips, badly, for lack of philosophical competence.

    And as far as your scathing comments about anglo-saxon politics go (Trudeau, Corbyn, etc) I (obviously) agree.

    I do not consider eastern Europe (Poland) in my esteem, any more than I do anglo-saxon countries: they have no deeply reflective, no philosophical pedigree to speak of.

    As regards Berlusconi: he is indeed the proto-Trump, the proto-Boris Johnson: a political clown. This relates to my earlier comments about Rome vs Greece: the italians were proto-anglo saxons committed to the original panem et circenses.

    Mitterand … what can I say. He presided over France when I was much younger than today and found that place the most enchanting place on the planet.

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