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February 28, 2008

An economically astute(?) forfeiture approach to sex offenders

As this article spotlights, legislators in Kentucky are talking about an new way to punish sex offenders:

Two state representatives from Northern Kentucky want the property of sex offenders confiscated so that those who use the Internet to lure their victims lose their computers for starters. The bill, filed last month by Reps. Arnold Simpson, D-Covington, and Thomas Kerr, R-Taylor Mill, would “require the forfeiture of all real and personal property used in or acquired as a result of certain sexual offenses against minors.”

If passed, the measure would allow for the seizure of property used by convicted sex offenders, including their cars, money, computers, money, homes — any personal belongings they may have used during the sex crime against a minor....

Too often, Simpson said, the tendency in Frankfort is to enhance criminal penalties in ways that result in longer sentences. The problem with longer sentences, he said, is that they increase correctional expenses for the state and counties. “I feel the bill would be still another tool to attempt to combat crimes against our children and would have little or no budget impact,” said Simpson.

The proposed sex offender law would work much like those already on the books for taking the property of convicted drug dealers. “If they use an asset in a crime they run the risk of forfeiting their property,” Kerr said. Under the bill, officials would also be able to take the sex offender’s home, or other property, if that is where the sex crime took place.

“HB 210 may be unconstitutional in that the state cannot deprive a person of property without affording a prompt opportunity to reclaim it if it is unlawfully seized,” said Daniel T. Goyette, chief public defender for Louisville Metro Public Defender's Office. “The Constitution requires a remedy for all injuries done to property ‘without sale, denial or delay.’”...

Under the bill, property would be seized by law enforcement, held and then sold. The funds would go to police and prosecutors, minus any liens on the property, such as car loans. “This will help prosecutors by giving them additional funds to prosecute the offenders,” said Kerr. Kenton County Commonwealth’s Attorney Rob Sanders, who, according to Simpson, requested the bill, said that under the bill 15 percent of the money that comes from sex offenders’ confiscated property would be earmarked for prosecutors, who could use the funds for expert witnesses, forensic investigations and the like. Law enforcement agencies investigating such crimes would collect about 85 percent of the money brought in from sex offenders’ seized assets.

“It’s a great benefit to law enforcement and to the protection of children,” said Sanders. Goyette said the bill invites problems. “What people do not seem to understand about this is that if the government can seize a sex offender's property with impunity, there is nothing to prevent seizure of other property,” said Goyette.  “The government does not start exercising such power by seizing the property of citizens who have influence and positions of prominence in the community—they start with people everyone despises anyway.... I question whether this bill is even necessary, except to create a fund for prosecutors without imposing a tax for it,” Goyette said.

This article provides another great example of how prison costs are changing how states are thinking about crime and punishment.  It also spotlights why legislatures, because of the high cost of prisons, are always going to consider seriously ways to punish through deprivations of property rather than through deprivations of liberty.

I wonder if all the folks generally concerned about private property rights and the Supreme Court's Takings jurisprudence will speak out concerning this interesting Kentucky forfeiture proposal.  As regular readers know, I am generally a big fan of alternatives to imprisonment, and it seems that this Kentucky bill imagines forfeiture as a possible alternative (rather than an addition) to lengthening prison terms for certain offenders.  Consequently, I hope this bill gets some traction and that more jurisdictions start considering property deprivations (as opposed to liberty deprivations) as a way to get tougher on sex offenders (and all sorts of other offenders, too).

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Very bad news. The notion that this will somehow, in the long run, replace time spent in prison by sex offenders is unrealistic politically. So you'll just have another add-on that will potentially increase law enforcement corruption, and could skew priorities.

The principle of approved looting in law enforcement is always a bad idea. The only way asset forfeiture can be a sound sanction is if the assets being seized cannot directly benefit those who are seizing.

Posted by: Pete Guither | Feb 28, 2008 10:50:07 AM

Several problems with this proposal - the first and most glaring is what about innocent family members (who in fact, may even be the victim of sexual abuse) of the sex offender? What if it is sexual abuse by a parent of a child in the home (assume fully owned and occupied by both parents)? If it gets reported, will the spouse and the child victim suddenly be kicked out in the streets? What will that do for incentives to report abuse by family members?

Then there is the issue of incentives to law enforcement - will law enforcement start spamming homeowners with child pornography in hopes that they can bust anyone who doesn't promptly delete it and seize their homes (there are reports that this sort of thing has taken place in the drug war, but I don't have enough information to access their accuracy). There are some very dangerous slippery slopes and already some evidence that once allowed the slippery slope will be expanded(after all, in Virginia we have already seen them using "administrative non-criminal" sanctions against other people (bad drivers) after the courts allowed registration as a "civil" penalty for sex offenders).

Also, I think its pretty clear from the article that what the proponents want to do is use seizures AND long prison sentences, not as an alternative. Very dangerous trend.

From a property rights perspective, there is, other than computers, a real tenuous link - in most cases, the sex crime isn't likely to have much nexus with the purchase or use of property. Of course, if there is an actual link between the home and the sex crime, the victim is very likely to be someone who also resides in the home. And of course, anyone who cares even a little about property rights should be very wary of the effect on innocent parties - punishing the spouses, parents, siblings, cohabitants, and children of sex offenders is hardly a positive outcome (and as noted, may well punish the very victim of the crime and discourage reporting). So in this case, I think the property rights and criminal policy both should lead to the same outcome - the possibility of punishing the victim of the crime should lead to the rejection of this proposal.

Posted by: Zack | Feb 28, 2008 11:52:40 AM

the Sex offender laws are meant to provide business. Sex offenders have to pay hundreds of dollars a month in treatment, and if they default, that is a violation of their parole or probation. As other have already mentioned, this will provide an incentive for Law Enforcement and prosecutors to charge people in the hopes of getting money in return.

Another problem is that if they confiscate the assets of sex offenders that were not obtained through crime, it will further condemn them to homelessness and poverty.

Posted by: EJ | Feb 28, 2008 3:07:05 PM

I don't see how this is any different than general forfeiture. You buy a car with drug money, the State takes it when they prosecute you because it was purchased with ill gotten gains. Run a drug house, they take it because it furthered your illegal enterprise. Here, if you drive across state lines to commit a sexual offense (presumably a felony), then your car is an instrumentality of the crime and should be forfeited. Same thing with the computer -- if you use it to meet/groom a victim, it is an instrumentality of the crime and should be forfeited. We don't give a drug dealer his scales/baggies back, so why should we give the items above back?

Posted by: JustClerk | Feb 28, 2008 3:17:02 PM

Isn't this going to make prosecution of a sex offender even more difficult? Think about it for a second. If they are at risk of losing everything, wouldn't they just sell everything in order to get a better defense?

Posted by: Mark | Feb 28, 2008 5:23:44 PM

Forfeiture is the dirty underbelly of law enforcement ad it provides many opportunities for corruption. In drug cases the forfeiture begins at the point of arrest. Perhaps it is not complete until after a conviction, but it is always a part of plea bargaining. Even after an acquittal property is difficult to recover. Another side affect is unequal justice.

I do not believe we want to expand this ill conceived practice.

Posted by: beth curtis | Feb 28, 2008 7:27:02 PM

Also in drug cases, if the person arrested can prove that the property in question was bought by 'legal' means isn't that property usually exempt from being taken?

One of my sister's boyfriends was in that type of situation. Mom died, got out of prison received like 90,000 dollars. Used most of that on a house then the rest to fund a drug operation. When he was eventually caught he was able to keep the house because he proved that it wasn't bought through his illegal activity. Even though, the illegal activty was taken place at the residence.

Now comparing this to what they plan to do with sex offenders doesn't seem to hold any merit. If a sex offender uses money to commit his crime, the money used in the crime is already spent, how does it justify taking any other money from him if it wasn't obtained through an illegal act?

Another thing that bothers me is the child pornography aspect. With Child Pornography we are already entering a grey area (though rationally applied) with 'thought crimes'. The act of having child pornography by itself without going into the mental aspects of it is simply having something that is considered illegal and the person that possesses it is not charged with actually molesting the child. Since the article has stated 'computers' as possible property that can be seized I believe that implies this law can be used in Pornography crimes. Can they take the house because the pornography was downloaded in the house? Can they take his care because he used the car to go to Best Buy to buy the computer? IF he didn't actually buy the pornography can they stretch out and seize his money because he used it to pay for his internet connection?

This outright scares me.

Posted by: Mark | Feb 29, 2008 2:02:06 AM

Some cities in California tried to confiscate Johns' cars in prostitution cases.

City of Los Angeles v. 2000 Jeep Cherokee, B185673

Posted by: George | Feb 29, 2008 11:00:13 PM

Not much to add to what has already been stated in the above comments except this:

It is impossible to have liberty without property rights. All of our other rights follow from property rights. (An interesting side comment is that yes, indeed we have already lost our liberty, but we don't know it yet.)

Therefore, I completely disagree with your support of this bill--- to deprive one of property IS denying liberty. You can't have one without the other, so your argument in support of this legislation is flawed. Just MHO (as well as that of the Founding Fathers)...

Posted by: static | Mar 3, 2008 8:05:40 AM

Doug. I normally agree with you on things but I think you are off base here. I agree that we need to consider alternatives to long sentences. But this is not the way to do it. Many people have already made excellent points about the law of unintended consequnces. I just want to respond to "justclerk" comment about "forfeiture." The issue is where does one draw the line. For example, I can actually see taking the computer in a on-line case. But the house? That's crazy. It's like seizing the McDonald's down the road because the drug dealer stopped there on the way the sale. SC Justice Holmes actually has an extensive discussion of the chain of casuation in liabaility cases in "the common law" and rightly points out that the chain could go on forever if you let it.

The real issue here is $$$. Taking the computer offers no incentive to the police and no significant punishment to the offender. You need to hit them where it hurts. But if you think about it logically, you will see that if you allow the chain to extend as far as the home, it violates common sense. Indeed, I would go so far as to say it is "cruel and unusual". It is obviously cruel to take someone's home and it unusual because we require people to forfit their homes for no other crime, not even murder!

Posted by: Daniel T | Mar 5, 2008 2:03:46 AM

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