Title: How the Federal Government Perpetuates Injustice
Original CoS Document (slug): ilinjustice
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Created: 2018-09-03 13:35:14
Updated: 2018-09-29 15:14:56
Published: 2018-09-29 15:14:56
Converted: 2025-04-14T20:24:36.457322526
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Civil Asset Forfeiture: Stealing from our Most Vulnerable Neighbors
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Do as I Say, Not as I Do: Congress Excuses Themselves from the Law
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Federal Sentencing Minimums: Catastrophic for Minority Communities
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Civil Asset Forfeiture: Stealing from our Most Vulnerable Neighbors
Civil asset forfeiture is a practice in which law enforcement officials may seize a person's property based on the mere suspicion that the property is somehow connected to criminal activity.
Civil Asset Forfeiture is a useful case study in the separation of powers, one of the bedrock principles of our constitutional republic. In a typical civil asset forfeiture case, a person is pulled over for a minor infraction, such as a broken tail light. The law enforcement officer will ask for permission to search the car.
Unafraid because they haven’t done anything wrong, the subject gives consent. Law enforcement then has the authority to seize anything they find during that search based on the flimsy excuse that said property may have been connected to some kind of criminal activity…even if the subject isn’t being arrested.
Because the person is never charged with a crime, they don’t get their day in court. Instead, they must enter a bureaucratic maze in which the onus is on them to prove their innocence, rather than on the government to prove guilt.
Frequently it costs more to hire the needed professionals to get the property back than it was worth in the first place; and often, instead of returning it, a “settlement” is reached in which the victim doesn’t recover all that was taken, and is coerced into signing a non-disclosure agreement that prohibits them from publicizing the wrongdoing or taking any further action against the agency.
Perhaps the most horrifying aspect of forfeiture is that parents have been threatened with having their children removed from their custody and thrown into the child welfare system.
Civil asset forfeiture has been used since ancient times. It was the British use of civil asset forfeiture, then called “writs of assistance,” that prompted the inclusion of the Fourth Amendment in our Bill of Rights. Here in the United States, it was used for a brief period as a means to collect taxes or customs duties on the high seas, but was mothballed for about a century.
It was resurrected during the Prohibition Era to fight organized crime, and again in the 1980s in the “war on drugs.” Regardless of the good intentions used to justify it, civil asset forfeiture is a blatant violation of our Fourth Amendment protections against unreasonable search and seizure; and because the victim is never charged with a crime, it also skirts the Sixth Amendment, which guarantees our right to a speedy public trial before a jury of our peers.
It disproportionately victimizes members of low-income and minority communities, who are more likely to do business in cash (according to the Washington Post, the average seizure is less than $500), and less likely to have access to the professional help needed to fight this abuse.
Civil asset forfeiture is just one of many examples of why the separation of powers is such an important feature in the design of our government. The drafters of the Constitution understood the corruption that occurs when the people who write the regulations are the same people enforcing and adjudicating them. The people who decide whether you get your stuff back or not aren’t just the people who took it from you, but worse, are the people who wrote the regulations that allowed them to take it in the first place!
Our Constitution stipulates that the only institution that has the power to make federal law is Congress: a group of men and women who must face We the People on a regular and frequent basis, so that we have the opportunity to weigh in on the laws they make for us to live under.
But Congress has skirted this accountability by passing vague legislation and then handing off the responsibility to nail down the particulars to executive agencies: unelected career bureaucrats who seldom experience any consequences for wrongdoing, and frequently have very little real-world experience in the areas they regulate.
This allows politicians to escape accountability by taking credit or shifting blame as is politically expedient; and creates the situation in which the people legitimately tasked with enforcing the law have also been conferred with the authority to write it.
As a result, they can name themselves adjudicator of the law, as well. Some states have attempted to step in and protect their residents from this kind of abuse, but the Department of Justice has circumvented these measures with a program called “Equitable Sharing.” The IRS is also actively involved in seizing Americans' assets without due process.
The Supreme Court, by its own admission, has abandoned its responsibility to check the the legislative and executive branches, choosing instead to become an enabler in the natural quest for power our Constitution was intended to blunt. In the 1992 New York v. United States, 505, the Justices openly stated that they and their predecessors had been engaged in empowering the federal government to undertake activities that “would have been unimaginable to the Framers.”
In over a dozen opinions, they have further maintained that the only check on their power is their own “good judgement.” Apparently, the checks and balances implemented through the creation of the executive and legislative branches no longer apply to them.
The abuse of innocent Americans through the practice of civil asset forfeiture has been underway for decades. If the Executive Branch were going to clean up its act, it would have done so by now. If Congress had any interest in using legislative means to rein in the misconduct of unelected officials, they would have acted long ago.
The Supreme Court has had numerous opportunities to step in and defend innocent Americans against this obvious trammeling of the Bill of Rights, but has opted instead to nibble around the edges by issuing opinions about proportionality and double jeopardy.
It is time to require Congress to return to passing laws and regulations in their final form. Many options exist to reform the judiciary, including term limits and involving the states in the appointment of federal judges. The states must step in where the federal government has lost its way, and use the Constitutional authority invested in them in Article V.
Do as I Say, Not as I Do: Congress Excuses Themselves from the Law
As I travel around the state educating voters about Article V, I’m often asked what amendment I would most like to see come out of a convention to limit the power & jurisdiction of the federal government. I reply that if I were honored to be a part of the Illinois delegation, the first amendment that I would fight for is one that would prohibit federal officials from excusing themselves and their friends from the laws to which they subject their fellow citizens.
Many times, the response is an astonished, “They can DO that?!” The shameful fact of the matter is that they can and they do, with shocking regularity. Federal officials have been engaging in this cynical habit for at least 75 years. Here are just some of the laws from which Washington has excused itself:
- The 1938 Fair Labor Standards Act
- Title VII of the 1964 Civil Rights Act (protects workers from discrimination & sexual harassment)
- Age discrimination statutes
- OSHA regulations
- Family & medical leave provisions
- “Robocall” prohibitions
Apologists for Congressional privilege point out that this prerogative is necessary to protect them from politically-motivated attacks, and Congress eventually moved to include itself in federally-mandated worker protections, so such an amendment is unnecessary. We would argue that so-called public servants should be prioritizing a fundamental sense of fairness and the needs of the citizenry above their own political careers.
It should be noted that it took over a half-century, multiple legislative attempts, and a very public sexual harassment scandal involving a United States Senator before Congress finally mustered the political will to take steps to provide their own employees with just some of the same protections they require of private-sector employers. It’s also important to note that Congress has yet to provide all of the worker protections to its own employees that it requires of other employers.
While the 1995 “Congressional Accountability Act” extended discrimination and sexual harassment protections to Congress itself, Congressional staff remain unprotected by the safeguards prescribed in the Whistleblower Protection Act of 1989.
One has to wonder why, a quarter-century later, Congressional staffers, the people best-situated to observe and expose mismanagement and illegal activity in Congress, remain uniquely vulnerable to reprisal; and how this particular provision happened to be overlooked in the CAA.
One also has to wonder why they opted for a 100-plus-page piece of legislation when a simply-worded statute such as “all federally-prescribed worker protections applicable to private sector employees will heretofore be extended to all federal employees, including Congressional staff” would do. Or why Congress opted for a bill that could easily be repealed or modified when they could have instead passed a Constitutional amendment that would guarantee that this sort of dictatorial hypocrisy never happened again.
The truth is, there’s no satisfying answer to this “oversight,” but when we look at another of the perks that Congress has legislated for itself, the explanation becomes self-evident.
In addition to worker protections, another area in which Congress has exempted itself from laws that apply to the common man is insider trading…you know, what Martha Stewart went to prison for. Have you ever wondered why the net worth of the average Congressman hovers around $7 million? (Hint: they weren’t all rich when they got to Washington.) Or how disgraced Speaker of the House Dennis Hastert, a high school wrestling coach, got his hands on millions of dollars of hush money to buy the silence of his victims? The answer: insider trading.
Legal for decades, Congress was once again shamed into passing legislation requiring itself to live under the laws they made for the rest of us after an embarrassing 60 Minutes exposé. Amid much fanfare, the Stop Trading on Congressional Knowledge (STOCK) Act, was passed just before the November elections in an attempt to quell voter outrage directed at incumbents up for reelection; but less than six months later, Congress moved quickly and quietly to suspend the rules and forego debate on a bill to gut the reporting requirements necessary for enforcement of the statute.
In a stunning example of politicians blatantly disregarding their responsibility to impose checks and balances upon one another in favor of conspiring with and enabling one another, the President quietly signed the bill into law, not only reinstating an egregious perk, but worse, stating plainly to both Congress and the American people, that yes, We the People are no longer fellow citizens, but subjects.
Thomas Jefferson said, “Tyranny is defined as that which is legal for the government, but illegal for the citizenry.” By Jefferson’s definition, Washington insiders have, over and over again, acted as tyrants in their quest for power and personal enrichment. When caught, they do as little as they possibly can to appear to address the disparity, but then work to restore their privilege as quickly as they think they can get away with it.
It’s time to stop addressing this corruption in a piecemeal fashion, and tell federal officials once and for all that we will no longer tolerate their tyrannical rule. It’s time for an Article V Convention.
How the Federal Government Perpetuates Injustice: Federal Sentencing Minimums
In 2015, President Obama was the subject of harsh criticism among conservatives for commuting the sentences of nearly four dozen offenders serving lengthy sentences in federal prison. Who were these people? Why did the President intervene? And most importantly, can and should anything be done to prevent the need for Presidential intervention in these kinds of cases going forward?
These individuals were convicted in federal court for non-violent drug-related offenses. Because of mandatory sentencing minimums passed by Congress in the 1980s and '90s, these people were serving longer sentences than some convicted murderers and rapists.
These laws were implemented by well-intentioned federal officials who sought to protect our nation’s young people from the scourge of drugs, and, ironically, to eliminate racial bias in sentencing. But now that they’re in place, it has become apparent that they are deeply flawed. As so often happens when the federal government becomes involved, these laws have actually exacerbated the problems they were meant to solve.
The impact of federal sentencing minimums is not only felt by men. The impact on families can be catastrophic. Children are deprived of the benefit of having their fathers present in their lives, and their mothers are left to support the family and raise children alone for extended periods of time, increasing the likelihood that the family will fall into poverty.
Some women are pressured to participate in crimes by a romantic partner, and are sentenced just as harshly as the real perpetrator for what only amounts to peripheral involvement. This leaves children doubly disadvantaged as both of their parents are incarcerated. If they are lucky, there are caring extended family members able and willing to make the long-term commitment to raise them. Others are thrown into the child welfare system.
Judges have described these mandates as “cruel and unusual punishment.” In many cases, treatment is the far superior course of action, but judges’ hands are tied by federal mandate. Law enforcement and judges alike want to see sentencing reforms that allow them to use their good judgement to allow for individual and extenuating circumstances.
Congress has taken the initial steps to modify federal sentencing minimums, but in this Presidential election year, the parties are even more polarized than usual and the legislation has stalled.
The havoc federal sentencing minimums wreak on American families and minority communities is an excellent example of what happens to everyday Americans when government officials are too quick to cut corners on one of our bedrock principles, the separation of powers. By passing federal sentencing minimums, Congress has invaded the judiciary, replacing a judge who is able to consider individual circumstances and mitigating factors for one-size-fits all formulas created by people with little, if any, experience in criminal justice.
Now that we’ve seen the disastrous effects of this move, Congress is too polarized and there are too many competing interests to muster the political will to walk back the error. State legislatures are far less divided and are able to deal with these issues in a far more responsive manner.
These 46 people were fortunate enough to have a President willing to intervene on their behalf. The next American caught up in the federal net will probably not be so lucky. But the good news is that the States are part of the original design of checks and balances in our government. When the political will does not exist on Capitol Hill, when the Supreme Court is satisfied to nibble around the edges, when the Oval Office is occupied by an unsympathetic President, an Article V Convention to limit the power and jurisdiction of the federal government can repair the tattered fabric of the Constitutional protection against cruel and unusual punishment all Americans should enjoy, regardless of race.