Saturday, 25 March 2017

Asset Forefeiture

Malleable Justice in An Atheistic World

In the United States civil forfeiture is a great evil.  Police can seize assets from citizens on suspicion of criminal wrong doing.  The assets seized usually go towards funding the police.  Not that one would ever know that's what it was used for.  Need a few more sophisticated equipment in the squad cars?  Just get out into the community and rattle a few branches.  Pick on any likely dumbos.  Seize their vehicles, houses, whatever.  Sell them off, and voila.  Leather seats in the squad cars all around.

In New Zealand, we have our own variant.  In some critical ways it is not quite as bad as the US monstrosity.  In NZ, the police can only seize assets when someone has been prosecuted and convicted of crime.  Theoretically, the only assets seized are to be those which have been garnered through crimes.

Nevertheless, the New Zealand variant of civil forfeiture has noisome aspects.  Recently one of our local rags took up the case of a guy who was convicted of being a fence, a receiver of stolen property--in particular, gold.

It's a funny place to weigh your gold, but for Rob Burgess the second-hand business has always had its oddities.  So he sat in his car in the parking lot outside a West Auckland hardware store, with wife Llannys, and waited.  Soon enough, a familiar face emerged. The undercover police officer would be called "Billy" in the court cases.

Waved into the car, Billy handed over gold jewellery. There was a 62 gram bangle and two gold earrings, all nine carat quality.  Rob Burgess weighed the gold on his scales as his wife got the cash out. A few bills went to Billy for the earrings but the sheaf of $100 bills (stapled) went to her husband.  He checked the figures on the scales and handed six $100 bills to Billy.

Billy: "You won't put this in your shop on display will you?"  Rob Burgess: "F*** no Billy, we're not that stupid, this will go straight into the melting pot."  Llannys Burgess: "We wouldn't do that to you."  Rob Burgess: "It all goes into the melt Billy, we all got to make a buck."  That's how the police say the Burgesses operated, and that's what the courts accepted.   The second-hand dealer's own evidence was dismissed - both he and Llannys were found to be less than credible.  [NZ Herald]
Burgess went to prison.  The police took a second case to the court, which looks likely to strip most (of not all) of his assets.  Having profited from the crime, and done the time, the profit also has to go.

The key thing here is that the suspect has to  be convicted in a court; moreover, the police, in order to seize the assets, have to have sanction from the courts.  But in 2009 a significant change was made to the law:
. . . those suspected of having accrued assets outside the law could be forced to prove they were earned lawfully.  If they could not, the assets would go. The Crown could use the courts to legally confiscate anything that couldn't be verified as 100 per cent lawful.

In seven years since, police seized 110 homes worth $34.5m, cash and bank deposits worth $27m, four farms or orchards worth $7.6m, 234 cars and 97 motorcycles worth $5.6m, eight commercial businesses worth $4.3m and a dozen lifestyle blocks valued at $3.9m. The money is put back into law enforcement.   [Emphasis, ours.]
Two aspects stand out as being terribly wrong.  Firstly, the burden of proof is placed upon the suspect.  He or she is very definitely not innocent until proven guilty.  Rather, the "target" has to prove the assets were gained lawfully.  Secondly, the police have a conflict of interest.  Any funds seized go back into funding the police.

Would it be just if the police knocked on your door one night and said they suspected that you had been involved in meth production.  You denied any involvement.  But the police put you before the courts and secured a conviction because you could not prove your non-involvement.   It is very dangerous ground indeed when the state starts to nibble away at the fundamental principle of "innocent until proven guilty" and the high standard of proof required is "beyond reasonable doubt".

In New Zealand we appear to have set some very questionable and troubling precedents when it comes to asset forfeiture.  We have no objection whatsoever to seizing assets and property that has been proven to be the profits of crime beyond reasonable doubt.  We believe, however, that it is something which juries must adjudicate whether the "reasonable doubt" test has been met.  It is not something the police, nor even the Crown, can be left to adjudicate because both police and Crown have conflicts of interest.

We suspect that these erosions of fundamental principles of justice  are occurring in the West because of its atheism.  When Christians are predominant in a society, Christian principles of justice will hold sway.  In at least two aspects, Christian justice diverges strongly from modern, non-Christian justice.  Firstly, no justice in this world is final.  Christians believe in God's justice--perfect, infallible, infinitely just--will be visited upon every creature, including every human being.  Therefore, if human courts in this life fail because there is insufficient evidence, or the high burdens of proof are not met, the guilty have only escaped temporarily.  They will all face final and complete judgement.

Secondly, Christian justice systems remain acutely aware of the fallibility of all human beings: power corrupts, and absolute power corrupts absolutely.  Therefore, standards of proof must meet exacting levels.  "Out of the mouth of two or three witnesses every matter shall be established."  Needless to say, that remains a very high bar.

Justice in atheistic societies is tempered with a desperation to "get a result" because there is no higher court.  Pagan justice seeks absolute resolution, lest it be seen to tolerate injustice.  Secondly, the demand to get a conviction will erode just standards of proof.  Corners will be cut.

The forfeiture of assets under "proceeds of crime" legislation [Criminal Proceeds (Recovery) Act] in New Zealand shows the tinctures of atheism, not Christian faith.

Two troubling things in this regard stand out.  In the first place, the burden of proof placed upon the police seems indulgently to favour the authorities.
Burgess' lawyer Kilian says the law is "one of the most draconian pieces of legislation in New Zealand".  The scheme, as he describes it, has a Wild West feel to it - police assessing value without having a financial background, using different methods to make those assessments and even using data from third-party sources to work out a proximate level of allegedly ill-gotten gain.  "The legal test therefore requires people to keep the same standard of accounting records for their personal affairs as you would there businesses."
In the second place, the Government has set the NZ Police a performance target in asset forfeiture.
This week it emerged police have been given permission to go even harder. Police Minister Paula Bennett told the Herald officers had been asked to almost double the amount seized using proceeds-of-crime legislation.  She said police were on track to seize $230m worth of tainted cash and assets over the next four years but have now been set a target of $400m.
That is troubling stuff.  Imagine if Bennett announced that she had set the NZ Police a target of increasing the prison population by 100 percent over the next four years.

We repeat, seizing assets proven to be proceeds of crime is implicitly just.  Using the proceeds, however, to fund the Police is an egregious conflict of interest.  Doubtless there will be more than a few police officers who are uncomfortable with that imbroglio.  Moreover, the normal standards of proof justifying the seizure of assets, need to be strictly maintained--that is, beyond reasonable doubt.  Finally, politicians need to keep their mouths tightly shut when it comes to setting "performance targets".  

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