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Do asset forfeiture laws violate the 4th and 5th amendments to the Constitution?

Updated on September 11, 2014


Our justice system and our Constitution identify specific rights which we expect to be honored. The requirements in amendments four and five presented below are in jeopardy through confiscation laws now in place throughout our country. There are many documented cases some of them recent that have identified the seizure of property and money from individuals without due process of law as identified in Amendment 4 and 5 to the Constitution.

Below are is the language of these amendments.

Amendment 4

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment 5

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

The use of confiscation laws seems to be growing throughout our country and in fact it also exists in other countries but they do not have the protections we do in the Constitution. There are two types of forfeiture cases. One is civil and the other is criminal. In a civil forfeiture case the government sues the property not the person. In this type of case the burden is on the government to establish the property is subject to forfeiture based on the evidence and though they may prove their case in a civil case the owner might win using and innocent owner defense.

The other type of forfeiture case is criminal forfeiture. This type of forfeiture is usually carried out after a conviction as a punitive act against the offender. Managing forfeited property seized by the agencies of the Department of Justice is a responsibility of the United States Marshalls Service. Currently the value of these properties is estimated to be $2.4 billion.

I am all for our law enforcement agencies to have the necessary resources to arrest and prosecute criminals but this must be matched with common sense. Individuals who had no involvement in the commission of a crime or has not been proven to have committed a crime should not be subject to having their property or money seized without due process of law as identified in the amendments provided above.

These kinds of laws have been liberally interpreted by many law enforcement agencies and though there is a federal statute regarding the question that is most troubling is the disconnection between the statute and the Constitution. Another aspect of these confiscation laws is the fact that innocent individuals are harmed by some of the confiscations taking place. There needs to be exceptions to protect law abiding citizens who had nothing to do with a crime or may not have actually committed a crime but not proven. In these instances law enforcement agencies should not have the ability to seize property or money. One big concern with this type of confiscation is what are the limits and where will it get applied next.

Overall I do not have a problem with confiscation laws but there needs to be some common sense guidelines put in place in any state to protect those individuals who are innocent until proven guilty. This is the primary objective of our justice system. Laws of this nature which contradict the Constitution should either be fought in the courts which some have or removed from the legal system. In a criminal case the confiscation does not take place until after an individual is convicted of a crime and is a means of invoking punitive damages against the criminal. The same should be applied in a civil case. In any case individuals should have the right to have their day in court by whatever means to appeal the confiscation of their property or money.


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