One of the cardinal rules of life is that Incentives Matter. As stated so long ago by Adam Smith, the “Invisible Hand” of economic incentives is always involved in most of the decisions we make. It may not always control the outcome, but (in addition to efficiently guiding the allocation of goods and services through a pricing system) it virtually always plays a part in it. That is why the present laws governing the forfeiture of assets involved in transactions of illicit drugs (and from many lawful activities as well) must be changed. Why? Because Liberty demands that the people of our country not be subjected to the institutional corruptions that can be caused by the economic incentives of “policing for profit.”
As a practical matter, Liberty and asset forfeiture do not have to be mutually inconsistent. If a person smuggles, possesses with intent to sell or sells presently illicit drugs, the assets used to accomplish those ends, or the assets that are purchased from the proceeds thereof, can and should be forfeited to the government. But that should occur only after that person has been charged with and convicted of one of those offenses. (In the meantime, the assets can be confiscated but held in trust for a reasonable period of time pending that conviction.) Then once that person is convicted, the same jury should decide whether those assets were so used or purchased. If that is the jury’s finding, forfeit them. But then deposit the forfeited cash or assets into the government’s general fund – not to the police.
Recently the California District Attorneys Association was successful in killing a bill in Sacramento that would simply have required a conviction before a forfeiture could occur. Why the concern? Well, according to a 1995 study by the Cato Institute, the owners of forfeited property are not even charged with such a crime about 80 percent of the time! Imagine the large numbers of innocent people who were wrongly deprived of their liberty and property because of this procedure. Of course the police need to be appropriately funded, but providing them with economic incentives to procure any of that funding can result in institutional corruptions. We need our institutions to protect our liberties not only from each other, but also from the police! And we must change the incentives accordingly!
Judge Jim Gray (Ret.)
2012 Libertarian candidate for Vice
President, along with Governor
Gary Johnson as the candidate for President
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