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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10 Comments on "Trump: Over His Skis On Asset Forfeiture"

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Jack Rubin
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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… Read more »
MP
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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?

Anonymous
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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… Read more »
Alfredo
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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… Read more »
Anonymous
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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?

Anonymous
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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… Read more »