You may not care what is happening to Jerry Shults and his daughter, Amy Herrig, but you should.
Shults and Herrig, owners of the Gas Pipe head shop stores, are in a business at the margins of polite society. There is certainly no room in my lifestyle for their products. But right now, they are victims of government tyranny, and you should care.
The Gas Pipe owners were prosecuted by the federal government for drug trafficking and a number of related offenses. But despite the full weight of the federal justice system leveraged against them, Gas Pipe prevailed in court. They won. But in today's justice system, thanks to asset forfeiture, their nightmare isn't over.
That's because, under today's asset forfeiture practices, the feds were able to seize millions of dollars' worth of cash, airplanes, vehicles, and real estate, including an exotic fishing camp, even without a conviction. And the feds won't return any of it, even though the Justice Department lost the case.
When I speak to groups about asset forfeiture, peoples' first reaction is generally "this can't be legal. This can't be Constitutional." And it isn't. In order to defend asset forfeiture, governments have to weasel their way around any number of Constitutional provisions.
For one, asset forfeiture is clearly a violation of the Fifth Amendment's protection against uncompensated takings from private citizens. It's also a violation of the Fifth Amendment protection against being tried twice for the same charge. For Gas Pipe owners to get their property back, they had to again secure counsel and return to court, where the federal government is using the same arguments against them a second time, even though the retailer already won the criminal case.
How do prosecutors get around the obvious double jeopardy "problem?" In asset forfeiture cases the authorities often charge the property itself with the crime, rather than the persons involved. As if the property committed a crime.
But it gets even more absurd. In a glaring example that drew the attention of the Supreme Court, the state of Indiana held that portions of the Eighth Amendment do not apply to the states. That's right -- in its greed to justify asset forfeiture, Indiana claimed exemption from a portion of the Bill of Rights.
Fortunately, the Supreme Court finally acted. In a unanimous decision in February, the court ruled against Indiana, finding that the states do indeed have to comply with the Eighth Amendment, and thus Indiana seizing a $42,000 Land Rover from someone convicted of a $225 offense was a violation of the prohibition against excessive fines.
But this is only the beginning of what should be the end of abusive asset forfeiture. The court's decision simply gives defendants the right to argue that the forfeiture represents an excessive fine. So it may have a trickle-down effect of reducing some of the more galling instances, but forfeiture remains so lucrative for governments that it will continue until and unless the states and the federal government eliminate it through legislation.
Over time, asset forfeiture has become an almost unlimited government power. In a staggering 80 percent of civil forfeiture cases, according to the Drug Policy Alliance, property is seized even when charges are never filed against the property owners. Homes have been seized from parents of children convicted of minor drug offenses. More commonly, those unfortunate enough to be stopped for something like a burned out taillight shortly after cashing a paycheck had their cash seized if cops found any illegal substance in the car.
This is tyranny. Government seizing private property, with neither a conviction nor just compensation, is utterly contrary to both the spirit and the letter of the complaints contained in the Declaration of Independence, and contrary to the rights established by the Constitution. A government that simply takes things because it can, and then puts the burden of proof on citizens to get their property back, is a tyrannical government akin to the abuses Americans originally rebelled against. Asset forfeiture must be stopped.
For the last several years Sen. Konni Burton was the major force in Austin trying to roll back asset forfeiture in Texas. Unfortunately, at the last election the voters chose not to send Burton back to Austin. We're still waiting for a new champion to pick up this urgent cause in the current legislative session.