in inartful-dodger, -esq. Department
South Carolina’s civilian confiscation programs are abusive and unconstitutional. That was the conclusion reached by a South Carolina court last year.
This Court considers that South Carolina’s confiscation statutes violate federal and South Carolina constitutional protections against excessive fines, allowing the government to confiscate unlimited amounts of money and other property without regard to the proportionality of the crime that may have been committed. In fact, they allow the government to confiscate unlimited amounts of money and other assets when no crime has been committed, without a criminal conviction and without proof of a crime having been committed in addition to a probable cause determination.
The programs in South Carolina are open to abuse, allowing state officials and prosecutors to claim 95% of anything seized. Law enforcement agencies see most of it: 75%. Another 20% go to prosecutors. The state itself gets the other five percent.
That is why the state’s anti-drug warriors do very little to stop the flow of drugs into the state. Police officers patrol the interstate exit routes, hoping to get money from the dealers after they unloaded their goods in the state. And, with 95% of the seizure at stake, it makes more sense to let the person go than to have the trouble of seeking a conviction.
Once the process begins, it barely progresses. There is no time limit for the confiscation process. The law only says that procedures must be initiated in a “reasonable period of time”. In some cases, prosecutors have waited more than two years to start confiscations. During that time, the person whose property has been taken cannot contest the seizure, let alone try to recover his assets.
The state government – at least the agencies that profit directly from it – does not want these programs to end. The state Supreme Court has been asked to make a final statement on the constitutionality of civil confiscation in South Carolina. While the issue is still open, all cases of confiscation on the circuit where it was declared unconstitutional have been suspended.
The government wants them to move again. But his arguments – and his legal representative’s apparent inability to provide direct answers to the court – appear to be putting pressure on the state Supreme Court to side with the circuit court.
State Supreme Court justices lobbied a lawyer who defends South Carolina’s civilian confiscation law with dozens of questions on Wednesday about the legitimacy of the practice, the timing of cases being resolved and whether the state’s seizure system and confiscation leads to frequent abuse by the police.
The state’s legal representative, James Battle, seemed evasive when asked directly about the potential abuse of the programs, prompting him to be terminated by a SC judge before he could start talking about what was happening.
“Do you not agree that the application of our confiscation statute, I am generally speaking about the application of the statute, has resulted in abuse, disproportionate confiscation and is a legitimate cause for concern?” Justice John W. Kittredge said.
Battle started to respond, and Kittredge said, “I don’t want you to answer the question for obstruction, and I think you just answered it because you’re not willing to acknowledge that applying our South Carolina confiscation statutes has resulted in abuse.”
Battle finally recognized the system could be abused but refused to recognize you had was abused.
Battle also claimed that the courts could prevent abuse, even if the initial seizure was abusive. While it is true that the courts are a control against abuse, very few cases of confiscation are actually handled by judges, as the small amounts of money taken more often are not worth challenging in court.
Judge Kaye Hearn asked Battle if law enforcement officials with a financial interest affect the way they operate. Battle said he can, but a judge must approve the confiscation.
“So, I suppose your answer is, although it may have been inappropriate at the beginning, at the end of this process is it corrected by the court?” Hearn said.
“Exactly,” answered Battle.
Another judge pointed to Battle’s evasion, even when he shied away from another direct question about the number of times cases are closed in exchange for seized assets. Battle’s response was to claim that he only worked with civil cases, so I had no idea if that happened or how often. This prompted the court’s president, Donald Beatty, to state categorically that he “did not believe” Battle’s claim of ignorance.
This isn’t over yet. And oral arguments can sometimes be misleading. But a system that has been abused repeatedly – and provides all the necessary incentives to encourage perpetual abuse – appears to be in jeopardy in South Carolina. The programs are so problematic that the government attorney cannot answer questions directly or honestly without confirming the suspicions of state judges. This does not bode well for the future of confiscation in the state.
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Filed under: forfeiture of assets, forfeiture of civilian assets, abuse of forfeiture, battle of James, legal theft, South Carolina