By Stephen Smoot
John Yoder loved many things in life. He loved serving the people of West Virginia as a State Senator and as a Circuit Judge from Jefferson County. He loved his historical home that rested within shouting distance from Bolivar National Battlefield near Harpers Ferry. He loved grilling on his front porch and he loved his large, gentle, and supremely fluffy dog.
What Judge Yoder did not love, however, was the part of his professional legacy that had tremendous impact across the nation at both the federal and state level.
John Yoder, to his regret late in life, was one of the founding fathers of Civil Asset Forfeiture.
Cornell Law School’s Legal Information Institute states that laws establishing the practice at the federal, state, and local level “allows the government (typically the police) to seize – and then keep or sell – any property that is allegedly involved in a crime or illegal activity.”
It goes on to state that “owners need not ever be arrested or convicted of a crime for their cash, cars, or even real estate to be taken away permanently by the government.”
The novelty of this law helps it to, somehow, escape the Fifth Amendment’s Takings Clause. In the Bill of Rights, this amendment states “nor shall private property be taken for public use, without just compensation.”
Its origin goes back to the mid 1980s when South American drug cartels extended their tentacles deep into the United States, The cocaine trade ruled Miami and southern Florida. People became millionaires overnight as low level functionaries for the cartels. With high priced lawyers keeping criminals out of jail, Ronald Reagan’s Attorney General Ed Meese determined that the assets represented the weak link in the chain.
When they could not get the criminal, they wanted to seize the money and assets to cripple the business.
Judge Yoder was part of a team that came up with the idea of moving the assets from a criminal burden of proof (beyond a reasonable doubt) to a civil law burden of proof (preponderance of the evidence.) This left the property owner with the obligation to prove that the assets and/or money were not used to further a criminal enterprise.
He later said that the team was assured that CAF would only target the highest level criminals and organizations, never the poor.
Similarly, when in 1913 Progressives pushed for a Constitutional amendment to permit the federal government to levy income taxes, people were assured only the top two percent would ever pay them.
Reality is that any legal weapon fashioned against the wealthier malefactors will be more often used against those least able to protect themselves.
Legal proceedings in CAF cases pit the government against the property, leading to cases such as “United States v. Eight Rhodesian Stone Statues.” CAF makes the property itself the defendant in the legal action.
Some restraints on the practice in case law do exist. Cornell Law School used as an example the case of United States v. Bajakajan in which the judge ruled that CAF must not be “grossly proportionate to the gravity of the defendant’s offense.”
Perversely, if the government chooses to not charge, they still get to keep the assets and there is no criminal offense for which the seizure must be proportionate.
Other federal and state restraints have come into effect, but none really change the fact that as it currently stands, most CAF laws are a bald-faced violation of the Fifth Amendment whether the courts accept it or not.
Judge Yoder regarded his work on CAF with dismay instead of pride when enforcement and use of it tended to work against the poor rather than rich criminal bosses. Poor people have almost no recourse to get seized property back from the government. That action requires a lawyer and, unlike a criminal case, a poor person cannot get a court-appointed attorney to help with CAF.
In many cases, people on the margins of society get the worst of it. Sometimes, for example, a legal immigrant comes from a country with an untrustworthy banking system and government. They do not trust banks anywhere because their experience in their home country was that no one ought to. Some of these people carry their cash on them rather than put it in the bank. When, for instance, they are in a traffic stop, if the officer, deputy, or trooper see thousands in cash, they first think that it must be tied to criminal activity. Often times, the cash will be seized and never returned.
It must be stated that everyone in the United States can carry as much cash as they desire on their person. No legal limits exist on this, even if the practice looks suspicious to law enforcement.
For this reason, Judge Yoder worked over a decade ago to marshal support among Eastern Panhandle legislators to amend or end the practice in West Virginia. He also appeared repeatedly on Fox News to spread his concerns across the nation. This kind, intelligent, and good-hearted public servant succumbed during a routine procedure and that ended his crusade – at least at that point.
Law enforcement agencies have tended to oppose eliminating CAF because some departments have come to rely on it for revenues.
A new generation of legislators around the state, led by Berkeley County’s Charles Horst and including former Hardy County Sheriff Bryan Ward, have sponsored a bill to “protect the due process rights of property owners” by stating in State Code that “forfeiture is disfavored as a legal remedy, and this act is to be liberally construed in favor of the person or persons whose property rights are to be affected and strictly construed against forfeiture.”
Forfeiture would still be allowed, but along much more narrowly governed lines and must be tied to a lawful arrest or other specific conditions.
On the face of it, CAF would appear to most to be an un-American practice, but it has been a tool in the law enforcement toolkit for over a generation now. While criminals should have to give up the assets that enable or come from their law breaking enterprises, violating the property rights of those least able to protect themselves is no way for any government agency to act.
Judge Yoder would have likely chuckled at the thought of the legislation carrying his name and declined to have it attached to this, or any, law. He was too humble of a man to have embraced that honor. That said, his career and life of public service, as well as the rare act in politics to issue a mea culpa to the entire nation for his own work, have earned this good man recognition for a good cause he joined well before most.
