Civil Asset Forfeiture – Guilty Until Proven Innocent

Perhaps no tenant is stronger in the foundation of the American criminal legal system than that one is innocent until proven guilty.  Unfortunately, the practice of civil asset forfeiture – a practice that is expanding across America by local policing agencies – is used to take the belongings of individuals and not giving them back to the individuals without those individual proving that they are not involved in some sort of criminal enterprise.  Unfortunately, many times it is more costly for the individuals to hire attorneys to prove that the assets that have been taken by the police are not criminal in nature.  So the police and local government agencies pocket the proceeds of the seized goods, which can include cash, cars and homes, and use those proceeds for their own ends – even if it has nothing to do with policing.

Now this all seems fishy and completely unconstitutional.  Isn’t there a law to the effect that someone is innocent until proven guilty?  Yes, there is!  That is perhaps the biggest problem with civil asset forfeiture.  Instead of the government proving that the assets seized were part of a crime – that the person is guilty, the onus is placed upon the individual to show that they are innocent.  There is a perverse incentive for cops to keep any seized property for their own benefit and screw the innocent people that have had the property seized.  Civil asset forfeiture completely turns the the fundamentals of the American Legal system on its head.

To show how civil asset forfeiture works, here are two videos showing how civil asset forfeiture is a racket that is used by police and government agencies across America.  The first video is from the Institute for Justice, the second is from the Daily Show which did an expose on the practice and how it is such a lucrative practice for police departments and a difficulty for the individuals who are unfortunately caught in the web of civil asset forfeiture.  We must stand up to civil asset forfeiture and fight for our rights as American citizens to retain our property until proven guilty, not be required to prove that we are innocent.

 

America’s Prison Problem

America has a problem with prison over-incarceration.  We incarcerate more people than any other country (excluding North Korea for which we do not have accurate statistics).  Incarceration affects us all in many different ways; some personal with friends or family incarcerated.  Even indirectly we spend massive amounts of money incarcerating individuals.  Many prisoners are incarcerated for non-violent drug offenses.  Until we admit as a nation that the War on Drugs has been an abject failure we will continue to spend billions of dollars not only enforcing laws for non-violent offenses, abuse civil rights and cause terror to minorities – who are disproportionately affected by the War on Drugs.

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John Oliver’s brilliantly funny “Last Week Tonight” had a brutally honest but ultimately sad look at the prison industrial complex that has taken over America.  There has been a move toward private-prisons.  And although I usually am in favor of almost anything the private industry can do as opposed to the government, strict requirements that these private prisons are guaranteed a certain amount of prisoners to fill their institutions, the privatization of America’s prisons needs to be addressed in a better way than guaranteeing income for the private prison industry.

Please take the time to watch the segment from “Last Week Tonight” on the prison problem in America.  It is a sad and brutally honest look at the issues involved with the American Prison Industrial Complex.

Happy 4th of July from The Law Office of Zachary Bushatz

The Law Office of Zachary Bushatz wishes you a happy 4th of July weekend.  I take liberty seriously at my law office and in my personal life.  Whether it is liberty from the tyranny of government enforced criminal laws or liberating yourself from debt, I can help you gain independence from whatever shackles of oppression are holding you back.Thomas Jefferson

One of my favorite quotes regarding liberty is from Thomas Jefferson who said “Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’ because law is often but the tyrant’s will, and always so when it violates the rights of the individual.”  Although we must respect the rights of others, we are entitled to liberty naturally and must understand that the law is often imposed by those in power to keep hold on their position.  If you have had your liberty encumbered, please feel free to contact me and I will help you regain your liberty that you rightly deserve.

If you are facing an asset forfeiture for a criminal act you have committed, don’t look to Bankruptcy Court 1bankruptcy to take care of your problems.  Under the well-established relation-back doctrine, the Government’s interest in forfeitable property vests at the time of the offense giving rise to the forfeiture, and the property subject to forfeiture is not estate property subject to the automatic stay. 

Although the automatic stay in bankruptcy can eliminate one’s obligation on a host of financial responsibilities, any asset forfeiture related to a criminal case is not affected by the filing of bankruptcy.  11 U.S.C. 362(a)(1) says that the automatic stay does not affect “the commencement or continuation of a criminal action or proceeding against the debtor.”  Further, because criminal asset forfeitures are brought by the government, the automatic stay also is inapplicable to them.  A stay does not affect “the commencement or continuation of an action or proceeding by a governmental unit… to enforce such governmental unit’s… police and regulatory power.”  11 U.S.C. 362(b)(4). 

In a criminal asset forfeiture case, the government’s interest in forfeitable property vests at the time of the offense that gave rise to the forfeiture, and the property subject to forfeiture is not estate property subject to the automatic stay.  “All right, title, and interest in [forfeitable] property… vests in the United States upon the commission of the act giving rise to forfeiture under this section.”  United States v. United States Currency, 895 F. 2d 908, 916 (2d Cir. 1990)  Because “the forfeiture occurs when the crime is committed,” a defendant has no interest in forfeited property “as of that moment.”  Therefore, the automatic stay of bankruptcy does not affect criminal forfeiture proceedings, which may continue unabated during the course of a bankruptcy. 

Unfortunately, one of the tools state and federal legislatures are adopting is to create civil penalties for criminal behavior.  One civil penalty used frequently in the war on drugs has become the Civil Asset Forfeiture which is commonly used to seize private property that has been used to facilitate violations of various drug laws.

One of many harsh outcomes of America’s over-enthusiastic war on drugs is that the protection of bankruptcy afforded Americans in the Constitution cannot protect property and assets from seizure when it has been involved in a drug forfeiture case. 

Safety Board Recommends Blood Alcohol Level be Reduced to .05

drunk-driving-signThe National Transportation Safety Board has recommended that states reduce the legal limit for driving under the influence of alcohol from .08 to .05.  The Board, which has no authority to implement changes, which are left to states and the Department of Transportation to adopt, says lowering the limit will reduce the 10,000 fatalities per year due to drunk driving.  According to the board, one person dies in a car crash that involves a drunk driver each hour, and 20 more people are injured, including three who develop debilitating injuries.

The last reduction in legal blood alcohol limits from .10 to .08 took 21 years for all states to implement.  However, if the Department of Transportation decides to implement a .05 BAC level it would likely force states to comply by denying highway funding to states that do not make the change.

There will likely be a significant backlash against any reduction in blood alcohol limit for driving.  “This recommendation is ludicrous,” Sarah Longwell, the managing director of American Beverage Institute told NBC News. ”Moving from 0.08 to 0.05 would criminalize perfectly responsible behavior.”

The Board, aware of the potential backlash, has recommended harsher penalties for for offenders and better use of emerging technologies to detect alcohol. They are also pushing for more research into developing technologies — such as breathalyzers linked to the ignition — that could be placed in cars to identify at-risk drinkers and prevent intoxicated people from getting on the road.

The Law Office of Zachary Bushatz, LLC is dedicated to fighting for the rights of accused drunk drivers.  Even under the current OVI/DUI laws, accused drunk drivers face penalties and repercussions for crimes they haven’t even been convicted of yet.  Typically, a driver arrested for suspicion of OVI have the driver’s license suspended before they are even convicted of the crime.  Reducing the legal limit from .08 to .05 would just exasperate current problems associated with OVI laws.  Instead of lowering the legal limit, I believe a focus should be made to improve current laws and protect both innocent drivers and those who have been accused of a crime they have not yet been convicted of.

If you have been arrested for an OVI you need an attorney to protect your rights and help you navigate the difficult and complicated legal process.  Contact the Law Office of Zachary Bushatz, LLC at 937-331-8061 today and see how he can help you with your legal problems.