“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
— Eighth Amendment to the United States Constitution.
In a unanimous decision on February 20, the Supreme Court ruled against the state of Indiana in the case of Timbs v. Indiana, a ruling which effectively ends the notorious practice of civil asset forfeiture. The applicable clause in the Constitution is “nor excessive fines imposed”, and it’s a wonder the states have been able to get away with lawless civil asset forfeiture practices as long as they have, considering the clause seems plainly clear. Apparently the application of that particular right slipped through as long as it has because the country’s founders meant the Constitution to apply only to the federal government. The Supreme Court has been gradually redressing that error ever since, and on February 20 the Court closed the loophole by which police departments across the country had been stealing citizens’ property under state laws allowing the practice.
The altar screen of the Temple Church in London, setting out the text of the Ten Commandments according to the 1549 Book of Common Prayer. Photo by Jheald.
What’s most remarkable about this historic ruling is that it was unanimous. The Supreme Court’s balance is now five to four in favor of conservative justices, and typically when conservatives weigh law enforcement practices against the rights of citizens they have decided for the former. Considering what was at stake in this case, the miraculously unanimous decision speaks to just how corrupt policing for profit had become, and ending it slows the nation’s slide toward becoming a police state. Now police employees nationwide have to heed the Eighth Amendment to the Constitution as well as the Eighth Commandment which, carved in stone in Judeo-Christian culture, reads “Thou shalt not steal”.
They can make more progress by heeding other Commandments, too, such as the Sixth, a paraphrase of which states “Thou shalt not wantonly kill, and then have thy buddies on the force close ranks and cover it up for thee”. That last bit incorporates the Ninth Commandment against bearing false witness, saving time. What does all this have to do with technology? If the police can finally be made to start following rules that have been set in low-tech stone for millennia, perhaps moving along to rules for 21st century high-tech will follow, like whether the controversial practice of going on fishing expeditions to obtain DNA evidence violates citizens’ rights under the Fourth and Fifth Amendments to the Constitution. There are no equivalent strictures in the Ten Commandments. Perhaps the usual advocates on the Court for the police, the conservative justices, can rely on the Constitution alone and apply its plain as day language to the latest technology and once again vote unanimously for citizens’ rights.
— Techly
“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”
― from The Federalist Papers, No. 51, by James Madison.
United States Attorney General Jeff Sessions is a fan of civil asset forfeiture, and last year he reinstated the federal partnership with state and local authorities that had been ended by the previous Attorney General, Eric Holder. That partnership allows state and local police to share seized assets with federal authorities if they claim even the flimsiest trespass on federal law by the forfeited assets (in a pretzel-like twist of legal reasoning, it is the assets themselves that are accused, not the person or persons who own them). Engaging the federal government in this way allows state and local police to bypass their civil asset forfeiture laws because they are superseded by federal laws, which are often more favorable to the police. The feds then give the state and local cops a kickback of all or part of the proceeds. This is called “equitable sharing” or, more cutely, “federal adoption”.
Getting pulled over for a minor traffic violation while carrying a large amount of cash can lead to a nightmare civil asset forfeiture scenario for the driver, regardless of the legitimacy of his or her claim to the cash. Only the rich can afford to fight city hall in court. Photo by photoo.uk.
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 offence 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 Fifth Amendment to the United States Constitution, with the due process clause.
It’s hard to imagine how the law can be more clear than this: ” . . . nor be deprived of life, liberty, or property, without due process of law . . . ” To be doubly sure, there is another due process clause in the 14th Amendment. Yet here we are, with police abusing the citizenry by stealing from them, sometimes without even a formal charge filed, but only on mere suspicion of a crime having been committed with the asset or assets, and keeping the proceeds in order to augment their budget. There are slight differences in the law from state to state, but in many states the police are allowed to keep seized assets, which also clearly violates the last clause of the Fifth Amendment, the takings clause. It’s impossible to imagine a more blatant case of conflict of interest, adding insult to the injury of the initial seizure.
In a civil asset forfeiture case, the burden of proof is often on the citizen whose assets were seized, not the authorities who took them. In order to retrieve seized assets, a citizen must prove they were not used in the commission of a crime or are a result of criminal activity, and this proof must be forthcoming even when the police have not filed a charge in court. Apparently the only thing to prevent the police from more flagrantly abusing the civil asset forfeiture laws more than they do is the basic decency and good character of the majority of them. But men are not angels, as James Madison wisely observed, and to allow these laws to remain on the books is to invite corruption of the police and further erosion of public trust in government.
Cash found in a freezer at the Washington, D.C. home of Congressman William J. Jefferson of Louisiana. This photo was entered as evidence in July 2009 showing what was seized in August 2005 from the freezer of the home of then Rep. William Jefferson, D-New Orleans. Jurors in the trial of Jefferson, who lost his re-election bid in 2008 while under indictment for bribery, saw photos of the infamous frozen cash. It was wrapped in $10,000 increments and concealed in boxes of Pillsbury pie crust and Boca burgers. Photo by the U.S. Attorney’s Office.
A flagrant case of abuse occurred last year in Jeff Sessions’s home state of Alabama, in the small town of Castleberry in the south central part of the state. To generate revenue for his little town, the mayor hatched a plan for taking advantage of Alabama’s very favorable civil asset forfeiture laws by confiscating cash and property from citizens and visitors alike, but especially out of state visitors, often using entirely invented suspicions. The police chief made no bones about it on public forums, where he joked about how the bogus money grabbing had been a windfall for the town of Castleberry and its nascent police department, now flush with fancy new equipment and patrol cars. Eventually bad publicity caught up with the mayor and police chief of Castleberry, and they were hit with a lawsuit. On a national scale, what happened in Castleberry doesn’t amount to much other than a clear distillation of everything wrong with civil asset forfeiture.
Attorney General Sessions, waving the bloody shirt of the War on Drugs, nevertheless wants to continue civil asset forfeiture and expand it, if he can get away with it. His motivations are unimportant other than how they forecast all the draconian policies he’s likely to see through while he is in charge of the Department of Justice. The important thing is that he has opened up one of the very few issues that attracts a bipartisan consensus in Congress, and that has been for less civil asset forfeiture, not more.
Highway robbery in Stanley Kubrick’s 1975 film Barry Lyndon, with Ryan O’Neal as Redmond Barry. Under America’s civil asset forfeiture laws, the gold guineas in Barry’s purse, and the horse he rode in on, could be forfeited to the robbers, or police. The strange history of this policy of official stealing from the innocent and the guilty alike also matters little, except perhaps to those appellate court judges who fall back on referring to obscure precedents of legal reasoning as convoluted and ultimately irrelevant as the debates of clerics who wondered how many angels might dance on the head of a pin. Congress can take this matter away from both Sessions and the judges by enacting legislation rolling it back. Really it should be swept away entirely, along with the War on Drugs it purportedly assists, as failed policies which have corrupted the police and eroded public trust every bit as much and in the same way as Prohibition did in the early decades of the twentieth century, when civil asset forfeiture first became a major police tactic. It seems we never learn lessons once and for all, but have to forever relearn them.
― Ed.
So when they continued asking him, he lifted himself up and said unto them, He that is without sin among you, let him be the first to cast a stone at her.
― John 8:7 (Jubilee Bible 2000)
In any discussion of government surveillance, such as has been revealed by the recent WikiLeaks “Vault 7” release of CIA documents, there are some folks who are apt to pipe up with “Let the government spy on me – I have nothing to hide.” By that they presumably mean for their listeners to understand they are not terrorists, criminals, or perverts, and to drive home their utter lack of impure intentions they will often add a feebly humorous aside about how government agents would fall asleep from the boredom of eavesdropping on them. How reassuring to learn that government flouting of the Fourth and Fifth Amendments to the Constitution is okay because there are some among us who are without sin! Whether these folks realize it or not, their smug pronouncement comes out of them because in their lives the presumption of innocence has always been a given, and therefore government agents would have no interest in their good citizen behavior. It doesn’t seem to occur to them there are others in our culture who, through no fault of their own, are presumed guilty, and there are still others who are just as law abiding as the “nothing to hide” crowd, but may be concerned about hackers and thieves accessing their data, or simply want to be left alone and feel that their affairs are their own and should not be the concern of the government. We can use locks on our doors not only to keep out criminals after all, but nosy neighbors and government snoops as well.
Jesus and the Adulteress; drawing by Rembrandt.
The digital age has changed the game somewhat by introducing new channels of communication and cheap storage for vast quantities of information. The Fourth and Fifth Amendments are no less valid, however, in stating that citizens should be secure in their “effects”; that government officials need warrants; that citizens cannot be compelled to testify against themselves; and that government shall follow due process of law in proceedings against any citizen. Naturally the Founding Fathers did not foresee the age of computers, smartphones, and the internet. They didn’t need to foresee those things, because in looking back on thousands of years of ancient Roman and Greek law and English common law, they were able to extract valid principles which were applicable to the general human condition whatever the particulars of any one era might be. Since their time, we have moved from postal mail and personal messenger to phone calls and telegrams, and now to blog posts and email. Government snooping amounts to the same thing whatever the means of communication, and it is protection from the ends that the Founding Fathers wrote into the Constitution.
That much should be obvious, yet the erosion of the Bill of Rights continues bit by bit, often with the excuse that technology has wrought different contingencies in our modern era. There are no different contingencies – what has changed is that the state of emergency appears now to be permanent because it suits the agenda of powerful interests in the military-industrial complex. In the past, the United States government trampled rights for various reasons which seemed sensible to many at the time, from the Alien and Sedition Acts of 1798, to the Palmer Raids of 1919 and 1920, to the internment of Japanese-Americans in World War II. Always the advocates of such policies invoked a state of emergency to justify the abuse of state power, but eventually calmer heads and changing circumstances would prevail and the balance would be corrected.
A segment of Eisenhower’s January 17, 1961 farewell address, with commentary.
As long as there are enablers of government snooping who complacently and self-righteously announce to everyone within earshot that they “have nothing to hide,” dislodging the powerful interests invested in the current status quo and restoring a constitutionally correct balance between citizens and government will be a protracted struggle. Those who value the privacy of their communications enough to take measures to protect it, such as by using the Tor internet browser or encrypting their emails, are thereby presumed guilty of possible anti-state, criminal, or sexually deviant enterprises by government snoops and their sanctimonious “nothing to hide” enablers because the very action of taking privacy measures draws scrutiny from those groups and is something they deem an admission of being up to no good. It is as if the Fourth and Fifth Amendments have been turned upside down, and objecting to having snoops looking in the windows of your house and walking in through the front door any time they please is fussy obstructionism, definitely unpatriotic, and possibly prosecutable. The “nothing to hide” folks are unconcerned over these developments, secure as they are in the comforting knowledge of their own innocence, though they may want to keep in a corner of their uncluttered minds the notion that the perception of innocence by those in power can shift capriciously, and so they are well advised to note this paraphrased bit from a poem by the German Lutheran pastor Martin Niemöller: They came for the Privacy Advocates, and I did not speak out – Because I had nothing to hide.
― Techly
In May of 2016, Department of Justice officials wrote a memorandum seeking a warrant to search a Lancaster, California, premises and to force the occupants to unlock any phones or electronic devices with their fingerprints if the devices were equipped with that technology. This amounted to a fishing expedition to circumvent previous court rulings which held that law enforcement could not compel a criminal suspect to unlock an electronic device with their pass code because that would be a violation of the Fifth Amendment protection against self incrimination. It is unclear whether the DoJ ultimately received the warrant they sought because not all documents related to the case are publicly available.
“Creation of Adam,” by Michelangelo
Why is compelling a suspect to unlock a device with their fingerprint also not a violation of the Fifth Amendment? Because of a 2014 ruling in a Virginia Circuit Court which stated that fingerprints and other bodily attributes are not protected, while handing over a pass code to law enforcement is divulging of information, which is protected. Law enforcement has long been able to use a suspect’s physical characteristics to incriminate him or her, but has not been allowed to compel a suspect to give up information. The problem now is that technology has leaped ahead of current law, and judges and prosecutors are falling back on anachronistic case law to cope with the use of biometrics like fingerprints and iris scans to lock personal electronic devices. Case law going back one hundred years and more treats fingerprints as a way of determining a suspect’s culpability at a crime scene, not as a key to a suspect’s possessions which may or may not contain evidence. It is obtuse to claim that a fingerprint or any other biometric is not the same as a pass code when it is being used for the same purpose.
“All seeing eye,” from U.S. currency
The use of biometrics is springing up not only in consumer devices, but in technology used by the military and law enforcement. The 2002 film, Minority Report, depicts a dystopian future when law enforcement and advertisers make great use of biometrics, and those predictions are proving more accurate with each passing year. The Department of Justice already uses facial recognition technology for surveillance of people in public spaces, and as we have seen with the National Security Agency, the ability of modern digital storage to accumulate massive amounts of data encourages the practice of scooping up everything indiscriminately. Like a fishing trawler using a drift net, law enforcement intends to collect everything now, store it, and sort it all out later. They think they are being efficient and better safe than sorry. But people are not fish subject to by-catch, which ought to be obvious enough, and to be sure the Fourth and Fifth Amendments to the Constitution make the distinction clear.
– Techly
Randolph County, Georgia, Veterans Memorial Park Bill of Rights marker; photo by Michael Rivera
