Clark Neily, "Civil Forfeiture"
Clark Neily is vice president for criminal justice at the Cato Institute. His areas of interest include constitutional law, overcriminalization, civil forfeiture, police accountability, and gun rights. Before joining Cato in 2017, Mr. Neily was a senior attorney and constitutional litigator at the Institute for Justice and director of the Institute’s Center for Judicial Engagement. He is also an adjunct professor at the University of Texas School of Law, where he teaches constitutional litigation and public-interest law. Mr. Neily served as co-counsel in District of Columbia v. Heller, the historic case in which the Supreme Court held for the first time that the Second Amendment protects an individual right to own a gun for self-defense.
Mr. Neily began his legal career as a law clerk to Judge Royce Lamberth on the U.S. District Court for the District of Columbia. After that, he spent four years in the trial department of the Dallas-based firm Thompson & Knight. Neily received his undergraduate and law degrees from the University of Texas, where he was Chief Articles Editor of the Texas Law Review.
Presented by the Federalist Society on April 16, 2018.
Transcript
Announcer: This audio file is a production of the University of Chicago Law School. Visit us on the web at www.law.uchicago.edu.
Host: Thank you, everybody, so much for coming out today. My name is Sam. I am one of the 1L reps for the Federalist Society today. So we're really excited to hear from Mr. Clark Neily. Mr. Neily is currently the Vice President for Criminal Justice at the Cato Institute with his work focusing on areas including constitutional law, over-criminalization, civil forfeiture, police accountability, and gun rights. Before joining the Cato Institute, Mr Neily was a senior attorney and constitutional litigator at the Institute for Justice, a director of the Institute Center for Judicial Engagement, excuse me, and the director for the Institute's Center for Judicial Engagement. Mr Neily, clerked for Judge Royce Lamberth of the US District Court for the District of Columbia, and he's graduate at the University of Texas where he was chief articles editor for the Texas Law Review. Please give a warm welcome to our speaker today, Mr Neily.
Clark Neily: Thanks so much, Sam.
Clark Neily: Very nice to see Professor Epstein, a good friend, old friend. It seems like we run into each other every time I'm speaking at a school that you're teaching. I might have to share a story during the Q&A about the last thing I heard you say.
Richard Epstein: Don't tell them that.
Clark Neily: Okay. So I, there, there's, I don't know, does anybody do economic liberty and litigation? Like Institute for Justice does occupational licensing for litigation. That's what I used to do when I was there, and I had the dubious honor of creating an interesting split, circuit split on the question of whether naked economic protectionism is or is not a legitimate government interest so that if you're challenging occupational licenses and the government comes into court and says "The only reason why we require a license to do that, whether it's braiding hair or selling flowers, whatever, it is literally just to protect the anti-competitive to promote the anti-competitive interests of , you know, an industry group.
Clark Neily: Is that a constitutionally permissible basis for restricting people's occupational freedom? There's actually a circuit split on that question with the 2nd and the 10th Circuit saying yes, that's a constitutionally permissible basis for restricting someone's occupational freedom, uh, and the 5th, 6th, and 9th Circuit saying, no, it's not. And I was giving a talk. Mr. Epstein was in the front row so that was a donor meeting for... I recall that you were actually grading blue books right there in the front row while I was talking. And um, yes, it was a long time ago. But I mentioned that the 10th circuit had handed down this crazy ruling saying that, you know, naked economic protectionism is a constitutionally sufficient basis for restricting people's freedom, and your head pops up from the blue books, and you said, "Who's on that panel? And he looks to the judge and says, "Well, he should be impeached." And then you went back to grading the books. So I'm really excited to be here to talk to you about civil forfeiture for a couple of reasons.
Clark Neily: First off, I think it's the most corrupt and corrupting public policy in America today. So I think it's important that we know more about it. And second, because the problems that are, in my judgment, so manifest in civil forfeiture are actually not idiosyncratic. They're not particular to civil forfeiture, they're just particularly clear with civil forfeiture. But I actually believe that our criminal justice system is in fact a raging dumpster fire of injustice. I don't believe that our criminal justice system merits our support as a people. I don't think it has integrity. Uh, and I think, I think we mean to really completely kind of reconceptualize it. There are huge problems, huge problems with our criminal justice system. And of course, if you're a limited government person, if you're, if you're basically any kind of limited government person short of an anarchist, um, criminal justice is one of the few things that you presumably believe the government has a legitimate role in doing it.
Clark Neily: And actually I think it's extraordinarily important that we have a well functioning criminal justice system because I don't believe that civil society is possible without it. So when, when you have a criminal justice system that enforces policies like civil forfeiture that are both morally and legally indefensible as I believe civil forfeiture is, or at least as currently practiced, then there's a, a, I think an unacceptable likelihood that that can begin to undermine the very legitimacy of the system itself. And I think we can't afford that as a society. So, um, I'll focus my remarks mostly on civil forfeiture. I have litigated civil forfeiture cases. I have a pretty good insight, I think, into how it works, but I'll also, towards the end, I'll try to sort of tie together some of the pathologies that I see in civil forfeiture with broader problems in our criminal justice system. I'll just spend a couple of minutes on that and then we'll take some questions.
Clark Neily: Um, or actually no, we might have some spontaneous commentary. So. So I'm just put your hands. How many people were familiar with civil forfeiture as a concept before you heard about the event today? So something like half, which is great because when, you know, it's one of those words that, that sort of like "eminent domain". I was one of the lawyers on the key elemental eminent domain case. It was sort of one of those words that people didn't particularly know what it was or didn't have a particular response to it. I set up a Google search about seven or eight years ago when I started working on civil forfeiture cases. I might get two or three hits a week. Now, I get usually between seven and ten hits a day on civil forfeiture. So people are very aware of it, which I think is great because to be aware of civil forfeiture, essentially, unless you wear a badge or you are a prosecutor, to be aware of civil forfeiture is in effect to oppose it because it is so problematic.
Clark Neily: There are two kinds of forfeiture. Those criminal forfeiture, civil forfeiture, criminal forfeiture is the kind of forfeiture that I suspect most people who are at all familiar with the concept think of first, and when criminal forfeiture works is, you know, if you accused somebody of a crime, you know, running a, big money laundering ring or something like that and you arrest them, prosecute them, you secure a conviction, and then any property that you can show was either the proceeds of that criminal activity or helped to facilitate it, then the government gets to seize that property. So again, the salient features of criminal forfeitures are that you get a conviction and that you show a relationship between the property and the criminal activity then the government can take that property. I don't have a problem with that. I think that's procedurally, I have a problem as you'll hear at, towards the end about some of what goes into that.
Clark Neily: But conceptually I don't have a problem with the idea that criminals should not be able to profit from their illegal activity. And that when the government actually obtains a conviction and can show the particular property is related to that conduct, that the government should get to skip the tape. So conceptually, no problem with that. The problem is that most forfeiture that's done in America today is not done through criminal forfeiture. It's done through civil forfeiture. And as its name implies, civil forfeiture is a civil proceeding, but it's important to understand that it is both initiated by and carried out by law enforcement. So yes, it's a civil proceeding, but it's initiated by police or other law enforcement agents. And then the proceeding, if there is a proceeding, there's not always a proceeding, but if there is a court proceeding that's undertaken by prosecutors.
Clark Neily: So what is, so forfeiture, where's it come from? So forth. But it goes back to, um, you can trace it back kind of any amount back into history, but let's say for sure it dates back to the mid 17th century with the enactment, something British Navigation Acts. Basically, Britain had a law that said that anything that you're bringing into the country by way of trade goods had to come in on the British flag ship. That obviously created opportunities for people to make money by bringing products in, using other ships from other countries, and they would sometimes get caught. And Britain being every bit as legalistic as we are, if not more, so they had to have some kind of a procedure for what you do with a ship full of unaccustomed goods that you now want to keep because you're not going to acquire physical jurisdiction over the, you know, the merchant or the ship owner in Holland or Spain or wherever that ship came from.
Clark Neily: And so he had to come up with some sort of a procedure for keeping the ship and the goods. And so they came up with something very like civil forfeiture. That process came over the Atlantic to the colonies and was used in America primarily in that same setting. Basically seizing unaccustomed goods and smugglers' craft. Um, and it wasn't used all that much. There was a little bit of a blip during alcohol prohibition, and then again, not used very much. Then, in 1984, there was federal legislation that changed a couple of things that radically changed the face of forfeiture at the federal level and many of the states followed suit. So in 1984, Congress passed a law that one made one particularly significant to civil forfeiture law. And that is that when the Department of Justice engaged in a forfeiture, up until that point, that money would then go to the general Treasury fund.
Clark Neily: So it would go to the whole federal government. What was, what changed in 1984 was that money now when to DOJ's own budget and the DOJ created something called the Assets Forfeiture Fund. And in 1986, the amount of money that the Assets Forfeiture Fund took in was about $96,000,000. In 2014, which was the last year for which we could find figures, the Asset Forfeiture Fund, the DOJ, took in about $4.5 billion dollars. So it was a 4,600 percent increase in a forfeiture proceeds annually. Um, and of course it varies by year, but, but essentially it's no, it's very clear the picture you can see, it's very clear that DOJ got much, much more interested in, in, in forfeiture at exactly the time when the law was changed to they essentially got to eat what they killed. Uh, and that we see that very much in the states.
Clark Neily: I say we see it. Um, but I just quickly tell you what I think the main problems with forfeiture are because we were in the vicinity of one. So one is transparency. It's extremely difficult to get information about forfeiture. DOJ keeps track of 1,300 different bits of information about forfeiture, but, but not whether it's civil or criminal. They just don't care about that. So you have to literally dig that out through a Foyer request which the Institute for Justice did while I was working there a few years ago to write a report called Policing for Profit. Even in states where there's a requirement that certain information about civil forfeiture be posted, be sent to the, to the governor's office are posted online, it's almost never done and they just ignored the law. So it's very, very difficult to get information on the front end and the back end. In other words, how the money, how much money is taken in through forfeiture and how it's done, and then on the back end how it's spent, but what that money is used for, extremely difficult to get that information.
Clark Neily: I think not by accident that the government essentially wants to keep this process as obscure as possible because the more you learn about it, the more objectionable it seems. So transparency is one problem. Another problem is bad procedures, which I'll describe in just a moment, and then perverse incentives. So, lack of transparency, um, bad procedures, perverse incentives adds up to a really terrible policy. Let's walk through a hypothetical civil forfeiture to see how it works. The states of course vary a bit in terms of procedures, so I would just go through the federal procedure which was pretty, pretty emblematic, and I've done a number of federal forfeiture cases. So the way a forfeiture case can be initiated, I'll use a federal procedure, but we'll do kind of a state and pretend it's a state proceeding. So does anyone drive to school or do you have a car?
Clark Neily: So Taylor's driving along. You've got a busted taillight or you're speeding because it's always, it's always one to one, one or the other. Sometimes you get both. But you get pulled over. What does your car smell like to a police officer? ... Every car on the road, It smells like this to a police officer. What is it? Burning Marijuana. Every single car on the road today smells like, if you don't believe me, just look looking federal reports. Because when people found suppression motions in forfeiture cases, or frankly in any criminal case, not nine times out of ten, but frequently it is the basis for the reasonable suspicion, which is what they need in order to extend the stop is that they smell burning marijuana. So your car smells like burning marijuana, not you but to me. I'm a cop. Now if I really want to go bounce suspenders, what I'll do is I'll get a PCC dog in the scene, right?
Clark Neily: You know what the PCC dog is? You'd probably call it a drug sniffing dog, but it's not, it's a probable cause creating dog. That dog comes to the scene for one purpose. And I'm not kidding actually, I got a Seventh Circuit case here for 2015 from Bloomington, Illinois involving a drug stop with, um, you can't make this stuff up. The dog's name is actually Lex, which is also. Why is that? Why is that so great? Lex is Latin for, for law. So the law dog, this guy's car literally got sniffed by law dog. So, um, and he had a bunch of drugs in the car, but um, but he, um, he filed a motion to suppress the evidence because he essentially took issue with the search. The search was done on a basis. So, um, for a vehicle stop they don't need a warrant, all hey need is probable cause, and a dog alert is considered to be sufficient probable cause to physically search the vehicle.
Clark Neily: His argument, which actually sounds to me like it's pretty good, is that this particular dog, Lex, has a 93 percent alert rate. Some defense attorneys call drug sniffing dogs a warrant on a leash. And my only question is what does this dog do the other seven percent of the time? Is she just too tired to alert, you know? Oh and they also, it relates in the case, she gets a treat every time she alerts. Does anyone have a dog? Does it seem like, okay, ... that's a moral hazard. Anyway, so, and she doesn't have a very good accuracy rate. I forget what it is. It's something like 60 percent. And so she's a little bit better than a coin toss, but not much. And, uh, so the question is, does this give rise to probable cause? And the Seventh Circuit says, "Yep, no problem." Uh, and so he goes, I think you've got 20 years for whatever he had in the car.
Clark Neily: So he's gone away for a long time. Um, but what happens then is if you. Oh, by the way, let's just do a little practical stuff here. It used to be in the old days, the police, if they pulled you over, asked you two questions. The first one of course was, do you know why I pulled you over today? And no matter how friendly that sounds, don't answer that. That's not, he's not making a friendly inquiry. That's actually the beginning of an interrogation. He's trying to get you to incriminate yourself. And also, you actually don't know why he pulled you over, or she. I would say don't answer that question or at least giver her a sort of clever non-answer, which you should be well equipped to do by the time you graduate. The second thing they would ask you, would it be, do you have any drugs or weapons in the car? Another question to which you should not give an accurate answer, if the answer is yes, but now they actually have a third thing they ask. Does anyone know what it is? Drugs, weapons or what? Large amounts of cash. And by large amounts of cash, they basically mean anything more than $100.
Clark Neily: So IJ actually has a class action going against the city of Philadelphia right now. The median amount of the cash forfeiture of Philadelphia is $178, $178. And so there's this, you know, they, they don't, to my knowledge, I've never encounted the department that is reduced this to actual written policy. But basically, uh, the picture that emerges when you look at all these stops is that really more than a few hundred bucks is going to be considered suspicious or at least they're willing to say that they find this suspicious. I mean, who knows what's really going on with that police officer? They might just want the money. Uh, but, but if you have more than a few hundred dollars on you. And I think it probably varies by, by circumstance. It depends what neighborhood you're in. It depends what kind of car you're driving. Probably depends what your skin looks like.
Clark Neily: Um, so there's probably a range of factors that sort of add up to whether or not that amount of money is suspicious or not, but that's what they're going to ask. Um, and if you do have a large amount of money on you and they can get a dog to alert to it, which is not very challenging, as you know, that's enough to take the money and they will take the money. What happens then is, and maybe the vehicle, if they're feeling, you know, if it's a nice car, um, what happens then is that they have to send you a notice that they've taken your property and you have a decision to make when you get that notice. You have to decide whether or not you want to challenge it. If you want to challenge it, at least under the federal procedure, you can file what's called a claim, and the claim is the sworn statement that the property belongs to you.
Clark Neily: Also, I think you're gonna get the high end of their tolerance range, but, so, um, if you do file a claim, then what happens is the, um, the government then has to file a civil proceeding and then who knows, who knows who or what they filed that civil proceeding against. Anyone seen one of these yet? The seized item. And property, right? It's an interim proceeding against the property and you get these crazy case names like United States v. one 1983 Ford Thunderbird, United States government versus $35,611. That's not made up actually, I litigated that case. My favorite: United States government v. one solid gold object in the form of a rooster. An actual case involving a casino in Reno, Nevada. And uh, so this, this in rem jurisdiction is a, is a legal fiction, but that dates back, at least back to the 17th century, British Navigation Acts.
Clark Neily: Uh, and I think that even though it could, they certainly couldn't litigate it as an in person case because they know who you are and you were right there. They took your property, they know who owns it. And they prefer to go in rem in large measure because why? Well, because property doesn't have rights or at least we don't think of properties having rights and if we can sort of like begin to divorce the property from the owner then it may be that the legal system will be more tolerant of a process from which we strip away some or all of the normal due process protection, which is in fact exactly what we've done. Has anybody ever, like did it come up in your civil procedure, you're forfeiture class for the last year civil procedure or you're constitutional law class that um, there's this thing called a hearing and due process requires you to get one.
Clark Neily: So what I was taught was that generally speaking before the government can take your stuff, you're entitled to a pre seizure hearing. Uh, and if that's not possible for some reason, then you are definitely entitled to a prompt post-seizure hearing. And in some cases the reports actually fight serious about enforcing this requirement, but not, not in forfeiture cases. Actually under federal forfeiture law. There's a very elaborate, it's 18 USC section 983 is the sort of primary federal forfeiture statutes and very elaborate procedures in that statute. But what you'll notice is that if the forfeiture is cash, there is no provision for a prompt hearing, no provisions for a prompt hearing. And so you're hearing that you get after they take your money is whenever your case goes to trial or whenever there's a summary judgment like however many years down the road that is, that's when you get your first and only traditional hearing. That's really problematic and I'll tell you why.
Clark Neily: A lot of the, the um, so if there were a prosecutor here debating this, what you would hear basically as that so forth, they would say it's a vitally necessary tool because if you were to, for example, go down to key west Florida, you could literally walk from Key West Florida to Colombia without getting your feet wet just by going through the deck of one abandoned drug boat to the next. That's pretty much the picture they were painting for you. And then when you got back to Key West, if you tried to drive in Miami, and you went through the everglades, you'd have to swerve to avoid all of these abandoned near jets that drug dealers just leave all over the everglades. And again, there's no way to seize that property without civil forfeiture. And when you got told, you'd noticed that the apartment buildings on either side of your apartment building were owned on one side by a Russian oligarch and on the other side by an African dictator.
Clark Neily: And once again, we can't even do anything about that without civil forfeiture. Query, query, then why is the median amount of a federal civil forfeiture $9,000? I guess times are tough for Russian oligarchs and African dictators. But, um, uh, so the, the numbers don't match up with the government's account of why they need this, why they did this process. They don't need this process. They just make a hell of a lot of money on this process. And they confuse the two. I'm not saying by the way that there's never been a case where a piece of property might have slipped through their fingers without civil forfeiture. We can talk about what to do about those cases, but they're not that common. This is mostly about, uh, you know, streamlining the process by which property can be taken from people that they find suspicious or they just have enough money that it interests the government.
Clark Neily: So why is it problematic not to get a prompt hearing? Well, you'd be surprised or maybe you wouldn't, depending on your background, how incredibly petty some of these cases are. So the case involving $35,611, actually a father-and-daughter run grocery store just north of Detroit. They did about a third of their business in cash. And both their accountant and their insurance guy told them, look, just make sure you don't allow that to cash to accumulate in the store for what I assume were obvious reasons. You really don't want to have reputation as a lot of cash accumulate, especially near Detroit. So they would send an employee over to the bank about once a week with one of those canvas deposit bags and employee would deposit the money in the bank. And have you looked at their bank records, which obviously the IRS did.
Clark Neily: I'm not sure how, uh, I think it was probably the bank that reported that the Senate reports because the banks made there, there, there, there are sort of motivation these days is to get on the right side of the law just by disclosing everything that could be of interest about their customers to the government. And so when these little discloses, if you're doing a lot of cash, and by the way it's not illegal to do cash transactions with the bank, but if you do a cash transaction above $10,000, technically it's not illegal. But if you do a cash transaction above $10,000, so like a deposit or withdrawal then with any financial institution, then that financial institution has to file what's called a CTR, a currency transaction report with the Treasury Department. And so you know, human beings being what they are and responding at least some of us to incentives what some people did if they didn't want to show up on the government's radar screen because they were engaging in actual illegal conduct like money laundering or tax evasion, or just because for their own reasons, they didn't want to show up the government's radar screen.
Clark Neily: They would then break up their transaction. So if you went into the bank with $12,000 to deposit, you break it up into two $6,000 deposits two separate because they may know what that's called. Structuring. Very good. So that's called structuring and that actually also is now a federal crime. It's a felony to go into a bank and break up your transactions to... but only there was a mens rea requirement. It's only illegal if you do it for the purpose of causing the bank not to file the CTR. So you have to know that there's that obligation, you have to know what a CTR is, and you have to be intending that the bank not fighting because that's going to be relevant in just a second. Um, so it turned out that my client's Terry Deco and his daughter, Sandy Thomas, were in fact sending police over to bank with just under $10,000 and they almost never were over $10,000.
Clark Neily: It was always around $7-, $8-, $9,000. And this looks suspicious to the IRS. So they set up a criminal investigation team, which actually did no investigating that was kind of ironic. All they did was just went to the bank and on the basis of nothing more than this pattern of sub $10,000 deposits, they got a secret warrant from the local Federal Magistrate Judge, who in my experience hands them out like Halloween candy, went over to the bank and took every single dollar from the store's operating account and very nearly bankrupted. This store, by the way, employed 28 people. If you employ 28 people within three miles of Detroit, you should, you should get a medal from the government. Not a subpoena. Subpoena was, oh yeah, it was, it was a subpoena to take all their cash. So they had bothered to do any investigation, what they would have found out is there's a reason why these deposits always clustered around that amount of money.
Clark Neily: And it's because like most small businesses, um, Terry Deco had a small business insurance policy on his store. There's anybody wanting to get to, there is a standard amount in small business insurance policies at which they cut off cash losses. You will not be reimbursed above what amount? $10,000. And even the IRS doesn't know this or I suspect more likely they don't care. Uh, and so they had bothered to ask. What they would have found out is for 25 years we've been doing it this way and we have letters from our account and from our insurance broker telling us, "Make sure you get the money out before it goes over $10,000." And that's exactly what they've been doing. So the government took $35,000, almost bankrupted the store. We got involved so they're able to have free legal representation, and we won the case, but not even on the merits.
Clark Neily: We won the case because the AUSA was not real good at meeting deadlines. He literally blew the deadline to file his civil forfeiture complaint after we got involved and said that we were interested. Yes. I think it accrued at a rate of four percent, something like that. So I think we definitely got like $700 in interest or something. So, um, so yeah, you get interest and we get good attorney fees and we had to fight like crazy over those and we got some. I don't actually, I'll get to that in a minute too. So the problem with is that if you don't get this right, and we, and we fought really hard to get a hearing. Uh, and one of the first motions that I filed, I had been invented. I just literally invented a motion out of whole cloth motion for prompt, a post seizure hearing.
Clark Neily: And unfortunately the judge we're in front of, I think it was a good guy, but his job before he became a federal judge was running the US attorney's office that we were suing in our forfeiture action. He used to be the guy that ran that office. Uh, and it was, it was a very singular experience. I'll remember it. I'm sure. My whole career. I went to his court and I said, you know, the Constitution requires a prompt post-seizure hearing and we've got very strong reasons why this conduct was illegal and the government didn't do sufficient investigation, blah, blah, blah. We're not, we're not asking you to resolve this on the merits of this point. We just want that money back so he can pay his employees and vendors and get on with his life. And the judge looks at me like I've got a second head grown out of my shoulder and his response is essentially, "Yeah,
Clark Neily: but the statute doesn't provide for a prompt post-seizure hearing." And my response is, "Exactly, that's exactly the problem, meeting of the minds. That's why you have to order one because Congress didn't make provisions for it." And he literally goes, "But the statute doesn't provide for it" when I'm like, "Yes!" So, um, long story short, we did not get the hearing and it was just by happenstance that this is AUSA had missed the deadline on filing. A funny story. I'll tell you the story. He... when you, when you send in your claim, you don't have to, but of course it's advisable to send it in certified mail because you have a certain amount of time, you have a deadline that you need to meet as well. And so we actually had the, the return receipt from the certified letter when, when that office received it.
Clark Neily: Uh, and, and if you calculated his deadline from the date when they signed for the letter, he missed the deadline. So his argument was, yeah, no, but we didn't really receive it until the letter made its way up to my office three days later. That was his argument for why he should get an extra three days because you, oh yeah, the mailroom had it, but you know, I didn't get it until a few days later. And I kind of want to ask him and say, so is it the department's policy that when the shoe was on the other foot that works the other way too, like it worked for a big company and miss a deadline. It's like, yeah, but you know, that was still in the mail room. It didn't come up to legal until a few days later. I bet you guys don't know because nothing with those guys two way street.
Clark Neily: But anyway, so I won that case and it was a real educational experience because among other things, I'm gonna talk a little bit more about bad procedures here. It's not just that there's no provision for a prompt hearing, it's that the procedures for invoking any of this. Any of the theoretical rights that you have are so complex. I don't really think any lay person has a really good chance of doing it. Anybody in the room, besides professor except Professor Epstein who probably is, who is familiar with Rule G of the Federal Rules of Admiralty, Maritime, and Civil Forfeiture. No, I wasn't either, so it's actually a rule, supplemental Rule G of the federal civil procedure that provides the procedures for forfeiture actions. Most of us don't know anything about it when you got out of law school, but guess who knows a lot about Rule G, it's somebody who works in an office not far from here.
Clark Neily: Who would that person be? The forfeiture specialist at the US Attorney's office, and you'd better hire a lawyer who knows as much about Rule G as that person does or you're never going to see that money again. It turns out that about 88 percent of federal forfeitures are done civilly and of those 87 percent are completed administrative. So completed means that there's a final determination that they get to keep the money, and an administrative process -- What that? That's a euphemism for no judge was ever involved because no one filed that claim. No one said, yes, I want to challenge you taking property. And there's two radically different interpretations you can draw from the conclusions you can draw from this. Either almost nobody is challenging these forfeitures because they all know that they're guilty and they don't want to throw away more money, or at least some people are not challenging it because they know that they're innocent or they know that it was improper, but they don't.
Clark Neily: They don't think it's a good idea to go out and hire a lawyer to essentially spend a lot more money to try and get that property back or at least to a lot more money to try to get that money back. And the truth of the matter is that most people who are caught up in the forfeiture machine, they don't have money to hire a lawyer. Especially not a good one on an hourly basis. So the only way you're going to get a lawyer to take your case if there's enough at stake for them to do it on a contingent basis and they feel confident enough with them to get it back. So, um, let's talk really quickly about some of these perverse incentives. Um, the, um, the clearance rate for, the national clearance rate for homicides 50 years ago is about 90 percent.
Clark Neily: The clearance, clearance was when the police department closes the books on an investigation because they think they solved the case. So 50 years ago, clearance rate for homicides in this country about 90 percent. So anyone know what it is today? It's 61 percent. In big cities like Chicago and Baltimore, I don't Chicago, Baltimore it's under 20 percent. You have a very good chance of getting away with murder if you do it in Baltimore and other big cities. The national clearance rate for all violent crimes combined is under 50 percent. And for all property crimes just under 20 percent and yet. And yet you guys have a sense of which way marijuana laws are moving in the states in favor of legalizing. So 29 states have now partly or wholly decriminalized marijuana and yet there are more arrests for marijuana related expenses in 2016 and for all buying crimes combined, combined.
Clark Neily: So you've got law enforcement out there chasing the low hanging fruit, enforcing laws that don't make anybody's life better while the clearance rates for crimes that actually people's lives in people's neighborhoods worse continues to plummet. I'm not saying that all of that has to do with civil forfeiture. What I am saying is that it seems rather clear to me that there was an incentive problem there, that we don't have the incentives aligned in the direction that we want them. And I do think that some of it probably does have to do with civil forfeiture in part because if you catch, you know, imagine you imagine that if you want, if you're a member of law enforcement, trying to think what can I do that would be really socially beneficial? Well, closing homicide case, that's probably really socially beneficial. Busting some guy selling marijuana out of his dorm room.
Clark Neily: Well, let's not say dorm room because we don't know they don't do that, but out of his apartment, um, I don't think that's super socially beneficial, but he's likely to have money. If he's selling drugs out of his house, you're probably going to find some money there. And I think that probably does influence law enforcement behavior. Let me give you a concrete illustration. There was a local news station in Tennessee that did an investigation into the conduct of um, drug task forces. Tennessee has a state law that makes it very easy for local law enforcement to work together to set up drug task forces. It's pretty much anywhere they want to. Uh, and so what they do is around I40, which is the interstate that goes across the state of Tennessee. Um, drugs basically in this country generally come in from the west and there's really good markets in the east, so they have to be physically moved
Clark Neily: from Arizona, so you're still getting marijuana, meth, and cocaine up from Mexico. But actually a lot of fentanyl is now coming in from China, but that comes to the west coast. It gets moved out east for sale. So the cars will hold the drivers coming east and heading west. So the thing that I'm suspicious to this local news station was that these a drug task forces, we're setting up on one side of that highway 90 percent of the time which do you think it was the side that enabled to intercept this deadly poisoned before it got to our nation's neighborhoods and schools. Was it the side that enable them to stop their departments' coffers full of money. Yeah. I think that's less of the first and more of the second. And I reject the idea that local law enforcement in Tennessee are somehow thinking this through at the international level and thinking, "Oh, you know, we're really putting a dent in it and the drug operation, this Colombian drug lord by taking this cash off the streets." No, this is about putting money in their coffers and they don't really care, you know, whether it promotes the public interest or not.
Clark Neily: So I think that's, I think that's hugely problematic. There was a survey that was done about 800 police chiefs recently and 40 percent of them said that they depended on civil forfeiture proceeds for their budget, for a portion of their budget. I mean obviously that's a problem as well because essentially then what you're doing is you're saying this revenue stream has to continue at about this, you know, this rate and, and you know, you can go out and create these cases. You really can. Let me just finish with one example and we can hear from Professor Epstein and take your questions. To show you how bad it was, let me tell you a true story that happened in the last forfeiture case that IJ handled before I went over to Cato to do criminal justice. Um, there was a Burmese Christian rock band that was touring the midwest.
Clark Neily: There is really, it's such a thing. There's a very big Burmese Christian community. Some of them are here in the states. Families from Burma. They were here doing fundraising for, for, for charities, including an orphanage in Thailand. And about halfway through the tour, they decided to take a break, they were up in Iowa. Their manager had family in Dallas, so he got his car and he drove from Iowa to Dallas and he got pulled over. What did he get pulled over for? Not marijuana; that's what his car smelled like. What do you get pulled over for it? Speeding? It was a busted tail light. So he made the cardinal error of answering the question honestly, Do you have any drugs, weapons, or for large amounts of cash? And it already says, well, yeah, I actually do have some cash in the car.
Clark Neily: I'm the manager for this Burmese Christian rock band. And we'd been doing a tour and selling CD's, we actually had one of the CD's, so he shows him the CD. And everything that we've made, all the receipts from the from the concerts in the sales. I've got in cash in an envelope in my center console. Can we see it? Do you think you ever saw it again? Well, it took a while. So they grab it, right? They bring a drug dog to his car. What does the drug dog do? Alerts. So they tear the car apart looking for drugs. Did they find it? No, they don't. We actually asked at one point we asked his friends we said, "Before we take on this case, we have to know is this guy, is there any possibility that he's mixed up in drugs?" And his friends laughed and said, no, this guy is so clean that he doesn't even know how to open a beer, literally has never done that.
Clark Neily: So he's totally clean and they. But they, they, they, they're determined to take the money. So what they do is they take him, this is in Oklahoma, they take him to the local police station and question him for four hours in a language that is not his under very intense conditions, and they decided at the end of the four hour interrogation that because he's given them a couple of what they consider to be inconsistent answers, they are going to not only keep the money, they're gonna file a felony drug distribution charges against him even though they didn't actually find it. I appreciate that expression. Now you may believe that they were doing that in good faith or you may believe that they were filing. They filed those criminal charges in order to leverage their ability to keep the $50,000. That's probably what happened. The story does have a happy ending. The Institute for Justice got involved.
Clark Neily: We reached out to the Washington Post to ask if they would be interested in having an exclusive, if they would coordinate with us on timing and they said yes, very much so. So the exact moment that we filed our papers, in that case, the Washington Post put the story up on their website, went up to number one within two hours and within a couple of hours after that we got a call from the DA in Muskogee, Oklahoma begging us for an address where he could send the check to turn off all of the attention. Not everybody has the ability to go out and get that kind of publicity and free representation. Uh, I will say this, nobody knows what percentage of forfeiture cases are, let's say unjust. And there's a gray area, you know, some of them are totally just, some of them are totally unjust and there's a gray area where you, if you represented by a sufficiently aggressive lawyer, you'd probably get a significant chunk of the money back.
Clark Neily: But I'll throw out one data point. It's not really a data point, it's an anecdote more than a data point. The Institute for Justice where I used to work has a 100 percent win rate in federal civil forfeiture cases, 100 percent. I've been in litigation for more than 20 years. I've never seen anybody with a 100 percent win rate in anything other than that. So when you see a 100 percent win rate anywhere in litigation, something's broken, something is wrong. Uh, and, and you know, I totally acknowledge that IJ probably has a very good case selection process. I would not say probably I was part of it. They have a really big case selection process, but to be able to have a 100 percent win rate in forfeiture cases. So sometimes we went on the merits, sometimes technicalities, like the guy who missed the deadline. Sometimes just because they couldn't defend what they were doing in the court of public opinion and they would just abandoned the case, uh, but uh, as a result of all this work and, and, and, and adding up the perverse incentives, the bad procedures, and the lack of transparency, I've come to believe that civil forfeiture is an indefensible policy.
Clark Neily: And here's what I would do. I would get rid of rid of it totally. If I could, if I couldn't, dial it back to where it's an extraordinary procedure, not a default procedure to make it extraordinary. Make at least the deputy attorney general sign off and say, yeah, we can't get that. You know, that African dictator's apartment building without something like that. You would like to change incentives a little bit. What I'd like to do is require the government to post a triple or even quintuple bond when they do a fourth year, because I'd like them to put their money where their mouth is. They are absolutely convinced that virtually every forfeiture they do is legit. What I'd like to do is say, okay, put your money where your mouth this, putting, putting out the two or three times or three of three and five percent bond that shouldn't, that shouldn't be any risk for you because you guys are never wrong or so you say, and if you move forward with your case, then the person's going to get five times the amount of that property that gets is going to come out of the woodwork.
Clark Neily: Forfeiture lawyers. There'll be a whole bunch of lawyers are getting much more interested in litigating these cases. And I'm not saying that that means that everybody is now going to start winning the cases. I'm not even saying that everybody should start winning the cases. What I do think it would do, is make the government much more careful about when it invokes this, this policy, when it goes after people, um, and ensures that it's not done on a whim as it is now. But it's done after a serious investigation where they really do believe that the person's a criminal and there's really some problem to achieving or obtaining criminal conviction. And they're not just sort of using this as a kind of a way to milk hapless people of their property, uh, under, at best ambiguous circumstances. So that's what I have to say. Thank you.
Richard Epstein: I hope most of you were aware there
Richard Epstein: is a clinic. Craig Futterman, who actually specializes in asset forfeitures, actually I've actually done some work with one. One of the reasons is, of course, that it's a civil liberties issue, which is something that resonates for both conservatives and libertarians and also traditional liberals. The imbalance and the abuse of power attracts both conservatives and not so conservatives. One of the cases, as I recall, had the following set of facts. There was an automobile, violent woman and her husband used the car. And what he was soliciting prostitution as he was caught with the woman in the car and they forfeited the car which was owned by his wife and promptly filed for divorce. Right? So one of the things that one has to remember which Mr. Clark Neily talked about, is that what you're talking about, seizures of assets. Some of these cases involve seizures when people who are not owners rather than for the people whose property has been borrowed, perhaps ... turns out other kinds of purposes and if you're really trying to figure out what happened is that sort of run the incentive structure and the person who essentially was engaged in illicit activities, no one sent it to get the car to somebody else at.
Richard Epstein: That poor other person has no information as to what happened in order to be able to come up with a kind of plan. And so I do think that another reform that I will be generally in favor of it is that before you could forfeit an asset, you have to make sure that it was an asset that the owners themselves that used or a use for which it had been authorized rather than simply done. The second thing I would mention about this is that the process that we're talking about here is extraordinarily common in connection. For example, with parking tickets, and this actually has very many complicated illustrations. Many of you who remember that Ferguson was in the crossfires with respect to the killing of Michael Brown by I guess Wilson, I think it was. Wilson was 28 years old and Brown was 18 at the time; Wilson was 6'2", 195 lbs and Michael Brown was 6'6", 295 lbs. And what goes on is there's an investigation as to whether or not the particular killing that took place in that case was justified or not, and this has been after Eric Holder had gone and the president had made very clear what happened. The Justice Department does an extraordinarily thorough investigation and it concludes that the fact that man was in peril of his life and Brown had tried to assault them, that had he not reply with a weapon,
Richard Epstein: he would've been seriously ill and essentially what they did is they gave them a misleading conclusion. They said there wasn't enough to prosecute on it, which could be well, if we can't prove beyond a reasonable doubt, they'd just be a preponderance of evidence. In fact, what they actually found if you read the report government's report, it was justifiable homicide. Now why is it that it makes a difference as to which way you report these things and then I'll get to the civil forfeiture piece. If you report this as justified homicide, then somebody is going to say, you have to give this man back his job, and you have to sort of take him out of the closet and let him work. If you are just sort of leave it hanging that we're not going to prosecute this particular case and you don't utter those words, then it's going to be very much more difficult for this man to
Richard Epstein: re-establish his reputation because he's not been exonerated by virtue of the report, and I regard that it's actually kind of a misuse of government power. Well then the government has to figure out how are they going to cover this stuff up. Because it turned out that it was very, very clear that you know, most of the provocation that had been created to raid the streets and so forth was done under a total of misapprehension of what happened. If you remember anything about the case, the chance encounter in the street with some guy just kind of looming at you in the middle of the day is not the setting in which you have sort of racial motivations to commit various crime. The government always had the option here to sort of bring this as a civil rights case, but given the fact that they didn't even have a criminal case to do a narrow case was not.
Richard Epstein: What did they do? Well, the city of Ferguson, like every other city, including the city of Chicago essentially has an extremely powerful method of using civil forfeiture in order to collect on parking tickets that have otherwise been on tape. What you do is wait until they've got five or 10 of these things, the twenty tend to accumulate. Then you seize the vehicle and you keep that. It is not the process, as I understand it, where you sell the car, pay the parking tickets off, or give the guy a chance to do it. Essentially what they do is they use this as a money machine and so what happened is the same day that the report was released exonerating, innocent in the perfect sense, Wilson for what had happened, they basically file a damning report for the city for using this particular process, and then all of a sudden the issue for the first time, the Justice Department is interested in making sure that the consent decree is going to be put into place so as to prevent the abuse from taking place.
Richard Epstein: The whole purpose of this to make sure that the city of Ferguson can now break regardless guilty. The whole purpose of that was to make sure that the period of guilty so that when they start to look at the Wilson situation, the argument would now be he was just carrying out the city policy and so it wasn't the lone act of a particular fellow. It was part and parcel of what the city had done. Every major city in the United States, including Chicago, has identical policies with respect to the way in which these parking tickets are used. Every one of these cities start to use this is as a revenue source and so forth and so now you get the kind of really strange reversal in which what you do is you now really lower the boom on the forfeiture racking, but you're doing so for a collateral purpose, which was essentially to cover your backside when it came to the question of how you handled a criminal investigation.
Richard Epstein: So, uh, the second point that I'd want to leave you with while you're talking about this as you looked at these kinds of things, one of the things that happens in virtually every state and every city at every time is in violation of any decent requirement on forfeiture: no hearing, no notice, no due process and so forth. But the most dangerous thing about this is selective enforcement. So if you've got yourself a policy and you know that everybody in the country is in violation of this particular policy, like the NCAA recruitment rules and so forth, what happens is the moment somebody turns out to be special for some unrelated reason, you then selectively enforced your particular policy against this person. So normally would say, ah, the federal government is now trying to clean up the situation with respect to civil forfeiture and in fact it only does so in order to conceal other kinds of vice, and this is another form of corruption, so you really have to get this process at the root.
Richard Epstein: It's not could be enough to have heroic defenses in individual cases because now Neil, he does the calculations as well as he just told you at the end. He said, "Well, $35,000, I come to him, free representation, we do it. Then the fellows this thing, well we cut it down a little bit and we managed to return say two percent of the cases and keep 98 percent of the cases, you know, I'll take 49 to 1 anytime. And so it is not a deterrent to do this because the way the payoff function at the urban has can be described as follows. If we lose, we are back to square one. We have lost nothing except the money that we illicitly saw. There was no officer that's going to be punished for various kinds of abuse, no fines to be levied, no federal action, no, no.
Richard Epstein: And if we win, we win clean. So what he's been able to do is to basically take the return rate from the process and reduce it from 1.0 to 0.97. Now I'm not against this, but when you he started to talk about this, the Marxist in me comes out. If you want to know why I'm a Marxist, because the Marxists always talked about structural reforms for American society and so forth. It's a game that more than one can play, but in this particular case it's right. And this one picture stuff is vaguely like the star chamber kinds of things in the previous situation, and it's the kind of thing which, because it makes money for the government, seems essentially to get most town still to look the other way. And that's of course the last of the virtues is if you get more money from civil forfeiture, uh, you don't take as much money from uncle tax rates and so forth.
Richard Epstein: So then what happens is you get the conflict essentially becoming the mall in these particular cases in order to do what it wants to do. And as I said, I think most people would put that and found that, but in our case, in the Seventh Circuit, I don't know if you remember, I think it went up to the Supreme Court and then some organizations went and all of a sudden, as I recall, it was dismissed on the ground that searches unprofitably rendered. I think when that happened...
Clark Neily: So in one case they did, they mooted it by giving back all of the property.
Richard Epstein: Does anybody remember the other great case in which somebody tried to moot an issue by saying that the thing was resolved? Most of you have not read the first part of Roe v. Wade, but the case actually begins on a mooting issue. Well, this woman has given birth. Why are we here?
Richard Epstein: And the answer they give is, you never worry about movements in a particular case for structural law if the thing is likely to repeat. So the correct disposition for the Supreme Court would have been, "it is utterly irrelevant that he would give her this back. It's not the 2 percent we're after, it's the 98 percent that we're after all of this stuff turns out to be a lot, so this is the last major vice which is associated with civil forfeiture. You get judged essentially bending rules that are pretty well in order to help the Justice Department in order to help these towns in some ways. What you have to realize, unfortunately, about the American legal system on many levels is the paymasters to some extent have the influence and I can say having done this many times with financial stuff, I will give you one illustration. On Fannie and Freddy,
Richard Epstein: we had this huge question about it because it got me to take over a couple hundred million dollars, but it's totally small money. So if somebody said, tell me about the case, and I said, well this is the way you're asking me to be talking about this as a legal analysis, you are 100 percent right. By which I infer that you have something under a 50 percent chance of winning, probably under 20 percent because if it's just money and you are only litigating against the federal government, I can assure you that you don't want to count on the federal judges to be your guardian. There is an unavoidable conflict of interest and if you read some of those cases associated with this, you will see how they manage to turn somersaults. The opposition being essentially, "No, we're not taking your stone. We've only taken the right to all the, the right to vote. We've only taken all the money on liquidation. We understand that the care is worth to you, but so long as you have title, you have nothing to complain.
Richard Epstein: They won them.
Richard Epstein: That's why we're members of The Federalist Society.
Clark Neily: That's excellent. By the way, I refer to that as Article III, co-counsel. I've seen it. Yeah.
Question One: So I guess I was wondering how expensive, if you don't get, if you don't get IJ representation or something like that, how expensive is representation to win back this money and do you see any like clustering effect? Like the cost $5,000 to get money back. Do you see a lot of seizures of $40,000, you know, at the point where it just doesn't make sense for any individual to challenge to get it back? I have to imagine if you have $178, the number of people that are actually going to pursue getting that money back is zero because it would cost far more to get the money back.
Clark Neily: Yeah. Yeah. It's a great question. So taking the last point first, one thing I could or should now have, is that in the city of Philadelphia, remember I told you the procedures are really terrible.
Clark Neily: There's um, they actually have a process by which you have to go. You don't have to go back five times, five different appointments, one after the other with the prosecutor before you ever get to see a judge. So for that $178 bucks, if you want it back, you actually have to take five days off of work or at least five half days to go meet with these guys. So I really don't think that's an accident because they set up the procedures. There's no, obviously there's no one amount how much does it cost? But I would say I would say if you have a, a substantial federal forfeiture, let's say you're talking like 50,000 or something like that. Um, there's, there's essentially two things you can do. You can just get any lawyer and uh, in my experience that will, that will generally get the government.
Clark Neily: So these cases do often settle. The government's opening settlement offer in the typical forfeiture case is about 20 percent other words. You get to get 20 percent back, they'll keep 80 percent. If your lawyer up, that usually goes to 50 percent, and they don't really care who your lawyer is, just the fact that you have one. If you want to actually fight it out and get it back, then, you know, these cases go lots of different directions, but I would say at a minimum you need to be ready to pay that lawyer for, let's say 40 hours of work. Just ballpark. And you know, depending on where you are in the country, that's probably gonna be between $200 and $400. Let's say it's $300, you know, 40 hours of $300 an hour, a lot of money, money most people don't have. And that's why most of these were done on a contingent basis.
Clark Neily: Um, and so in fact are not done because they aren't going to risk bail. So you might get a lawyer involved who at least write a letter to government, say, hey, let's settle it, let's do it. Cut it down the middle, like you usually do. He might be able to make some money off of that. But a forfeiture lawyer have only ever worked on contingent cases would probably get broke pretty fast. Or unless you're like really famous where people who've got a lot of money at stake and know they've got a good case come to you specifically. That's how you can take money. Was there a hand over here?
Question Two: I hate to ask this, but you may have heard here in Illinois we're having some budget problems. If local police departments are using this as a significant portion of their budget, then, I don't know, how much more are they going to raise our taxes?
Clark Neily: Yeah, you know, a fair question. So just because 40 percent report that they, they know some of their budget comes from this, that doesn't tell us how much of the budget. Um, and again that's very difficult information to get So DOJ's budget was something, I think in 2016 was something like, I want to say 32 billion, maybe 37, somewhere in that range. And so if they took in 4.6 billion forfeiture funds, that gives you an idea of how much money is in play. What's that? 15%. Something like that. Right. So I suspect it's lower for most local police departments, but there also seems to be a kind of a pattern where someone will sort of really get into it. They'll hire somebody who really knows how to do it or they'll just really kind of make it a thing. And there I could imagine, you know, being a significantly bigger chunk, but my sense is I'd be surprised if there were very many departments that were, that were sort of dependent on more than like 10 or 15 percent.
Clark Neily: So, you know, and of course the police budget is only a very small part of the overall state budgets. I don't think it's likely that if you end forfeiture suddenly, you know, you guys are like, you're going to have to come up with another 500 bucks a year on your taxes or something. Um, but also I think that, um, another question that's kind of interesting is what amount of money are these police department spending on essentially pointless enforcement activities, right? I mean, I, you know, you know, where I stand as a libertarian, I think basically all the drug laws are pointless and shouldn't be enforced and in some cases immoral and unjust, but they're also pretty expensive to enforce. So maybe all they are doing is breaking even. Right? Does that make sense? So unfortunately all we can do is speculate because the recording on this stuff...
Richard Epstein: You don't believe this with opioids?
Clark Neily: I do.
Richard Epstein: It's all basically all contaminated goods killing people.
Clark Neily: I'm with you. The violence that we have done to the society, the enforcement of those laws has been done in such a brutal and pitiless and unjust manner that I just can't stand. I just can't stand it.
Richard Epstein: I think it's really complicated. I think, in fact, you need to get to some source for people to get things that are clean. But once you do that, then I think you'd find it like anything else. I have another comment. I think you underestimate the modes of extortion and you spend your time just worrying about forfeiture. If you start with the federal government, they managed to extract $13,000,000,000 from the Chase national bank on the grounds that he was somebody who aided and abetted in this conspiracy with Mr. Map. Now let me just sort of mention what they did and why this is. I regard as this is even bigger numbers than anything you could get on board. But what happened is matter of them to make dividend distributions to various people with whom to set up accounts. All they did was essentially cut the checks. This other position that the government took was that they should have been able to realize from the checks that there was some irregularities going on.
Richard Epstein: If you go back and read the extensive government report with respect to what went wrong in the Madoff case, which has been handed down about six months, a year before, they go for several hundred pages. And you don't have to read it all, you just google Morgan Chase and they're not mentioned at all. It has also mentioned that the government managed to get at least 50 people to tell them nobody can have the kind of performance rates that ... has because it is statistically impossible when you're running in to always have 9 to 11 percent returns every year without exception, nothing low and nothing high, and they never followed up any of these leads and that they were still able to extract this. What's the threat? It's not the forfeiture threat. It's the, if we prosecute you, then you can be subject to forfeiture of license under the state and federal bank laws.
Richard Epstein: Essentially the chances of winning would be zero percent. The amount that you expect them to be the case goes to litigation, say a billion dollars, but also the license is worth $20,000,000 and you get that simply by filing. You'll notice it's exactly the same thing that Clark talked about with respect to these cases. It's not that you lose the trial, it's the way in which they managed to make sure you never get to the point where there is a trial and then where they sometimes when they want to do this and they're afraid that somebody's going to lose a license, they will actually make a deal. We'll take the money, but we'll first get the state control. This case was the last thing to agree that they won't impose the forfeiture, so you could make this settlement on it, which is then collusion between government and other branches. So if you're trying to figure out what is extortion, it's also important to take into account certain forms of litigation.
Clark Neily: So this is a great note to end on. This is awesome. I can't believe we got here. I want to share with you is something that I mentioned. I think the criminal justice system is a raging dumpster fire of injustice, and I want to share with you the issue. I think everybody should be talking about it a little bit. Um, in, in medieval Europe, they had a problem with the criminal prosecution as part of their code that you can only convict somebody of a really serious crime if you had one or two things, you either had to have two eye witnesses already or a confession. And so basically if somebody was smart enough to not do the crime in, in front of two eye witnesses, even if there was a very strong circumstantial evidence, even if they found a bloody knife, you know, perfectly matched the wound in your home that was still not enough. So what did they do?
Clark Neily: What they did in order to, you know, sort of keep the process moving, what did they do? Traditionally sanction torture. Exactly right. Uh, and so, and they actually tried to do it in a way that kind of made sense. They would, you know, you have to have probable cause. You'd actually have to establish what they call the half proof through circumstantial evidence or something else. And they would actually try to elicit information that only the perpetrator could know so that they have, you know, something, it wasn't just somebody confessing or make the torture stop. And of course it evolved into that. So we've done basically exactly the same thing in this country, I would argue. Our procedures, our criminal procedure has become so complex and the length of a jury trial is now so long, back in the founding era it was usually not more than a couple of hours. In England,
Clark Neily: they used to be able to do 10 or 20 felony trials a day in a single courtroom. And of course now, you know they can take weeks if not months. So we've responded, I would say in exactly the same way. And how do we, what is the form of coercion that we use, don't use physical torture, no what do we use? Mandatory minimums, mandatory minimums serve precisely the same function in the American criminal justice system that the rack and other instruments of torture served the Spanish inquisition. And let me make this really personal for you. I have two little kids four and three years old. I would undergo almost any form of physical torture that you could own before I will be apart from my kids for 10 years. And federal judges handout 10 year sentences like Halloween candy in our system. In fact, for many drug related crimes, if all you get is 10 years.
Clark Neily: In fact, this guy, uh, you know, running the less I remember now, he got 240 months for having a bag of cocaine in his car. That's a horrible, horrible thing to do to a human being. Uh, and there was just a, um, a record opinion from West Virginia where a judge said and just came out boldly and said, I'm going to be rejecting mostly from now on because I don't believe it's in the public interest to essentially eliminate the criminal jury trial. Does anybody know what percentage of criminal convictions are now obtained through plea bargains at the federal level? 97 percent. Why are 97 percent of or such a high percentage of defendants not choose to exercise one of the most hallowed hard won and unique rights in our country's history? Is it? Could it really be possible that almost nobody is very interested in having this? Keep in mind, when you look at the Bill of Rights, it's still has more ink on the subject of juries than on any other subject. Then people just don't want any part of it. I don't believe. I don't believe it for a moment. What I believe is that we've developed an extremely efficient way to make the process as coercive as possible. Now am I saying that a lot of these people are innocent. I don't know. Probably not. I don't think the government wants to waste time on unmeritorious prosecution, but are some of them innocent? Absolutely.
Clark Neily: Exactly. Exactly right, and I think what we've done basically is we've gotten to the point where we keep ratcheting up the sentences, not because there's any relation between the culpability of the conduct and the sentence, but instead when you take the plea, that's when you get the punishment that basically you were supposed to get. It's when you insist on when you stand on your right to trial and lose and you get life without the possibility of parole for being involved in a drug distribution scheme or something like that, that's called the trial penalty. And that's what you get. We're not a plea bargaining system anymore. We are a trial penalty system. Uh, and, and we really, really are our hazarding, I would say we are risking the moral legitimacy of our, of our criminal justice system for that reason. So thanks a lot for coming to talk. Thank you for such a wonderful time.
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