Legal Delusions

At most times and places in history, state authorities have had pretty wide discretion to help or hurt folks.  People knew to submit to authorities, and to accept occasional arbitrary applications of authority power.  Thankfully, such applications were limited by the fact that authorities were distracted trying to keep their power via keeping the peace, meeting revenue targets, etc.,

Today folks proudly bask in a glow of higher status by believing that they have more control over their government.  They believe democracy puts them in charge, and that a “rule of law” drastically discourages arbitrary applications of authority power.  They are deluded:

Over the past three decades, it has become routine in the United States for state, local, and federal governments to seize the property of people who were never even charged with, much less convicted of, a crime. …  [An] Act of 1984 … included an earmarking provision that gave forfeiture proceeds back to local law enforcement agencies that helped in a federal forfeiture.” …

The government had only to show probable cause to believe that it was connected to drug activity, or the same standard cops use to obtain search warrants. The state was allowed to use hearsay evidence—meaning a federal agent could testify that a drug informant told him a car or home was used in a drug transaction—but property owners were barred from using hearsay, and couldn’t even cross-examine some of the government’s witnesses. Informants, while being protected from scrutiny, … could receive as much as one-quarter of the bounty, up to $50,000 per case. …

Justice Department’s forfeiture fund … as of 2008 assets had increased to $3.1 billion. … Almost half of surveyed police departments with more than 100 law enforcement personnel said forfeiture proceeds were “necessary as a budget supplement” for department operations. …

Less than 20 percent of federal seizures involved property whose owners were ever prosecuted. … More than 80 percent of federal seizures are never challenged in court. … In many cases the property was worth less than the legal costs of trying to get it back. … Forfeiture defendants can’t be provided with a court-appointed attorney. …

To even get a day in court, owners were forced to post a bond equal to 10 percent of the value of their seized property.  The average DEA property seizure in 1998 was worth about $25,000. In 2000 a Justice Department source told the PBS series Frontline that this figure was also the cutoff under which most forfeiture attorneys advised clients that their cases wouldn’t be worth pursuing. …

In 2000, Congress … raised the federal government’s burden of proof in forfeiture cases. … Problem was, the 1984 law had already spawned dozens of imitators on the state level.

Articles about this stuff have appeared periodically for decades.  Clearly such news has not sparked an irate revolution of concerned citizens demanding the return of their supposed rule of law.  As long as we don’t hear about stuff being arbitrarily taken from someone we know, we can keep believing we are better than those ancients – we still live under a rule of law for those who really matter – people like us.

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  • James Daniel Miller

    What’s even worse is that U.S. criminal laws are so numerous and broad that most adult Americans have committed a crime for which they can be put in jail. It doesn’t seem to bother most U.S. citizens that if a prosecutor knew enough about him the prosecutor would have the capacity to force the citizen to spend several years living in a small steel cage.

    • Brendon

      Could someone please make an internet quiz for “how long do you deserve to go to jail?”

      Questions might include:
      “Have you used/bought drugs? What kind? How many times?”
      “Have you downloaded copyrighted material?”
      “Have you ripped cds to your iPod?”
      “Have you ever failed to pay sales tax on a cash transaction?”


      At the end, you’ve got the amount in fines you’d have to pay and the amount of time you’d do.

    • Hal Finney

      The laws that really bug me are the ones against “disorderly conduct” and such. These seem to be catch-all ordinances that amount to pissing off a police officer. That’s what the Henry Gates incident involved last year, the Harvard professor who turned out to be a friend of Obama. Everybody seemed to focus on other parts of the story but I couldn’t get past wondering why the police had the right to arrest him basically for giving them a hard time.

      • Joe

        Indeed. “Disorderly conduct”, “disturbing the peace”, “mischief”… even if these had well-crafted legal boundaries in the common law (maybe they do), the average person kind of lumps them under “Being An Asshole”.

        In the forfeiture cases mentioned in this post, the police agencies are well aware that public outrage will be manageable only so long as “obvious scumbags” are the ones being looted.
        On the flip side: I’ve spoken with members of prominent companies and law firms who indicated that they “abuse” certain tax loopholes to a more limited extent than technically available, because they don’t want to raise the attention of the public/ legislators who could close the loophole.

  • In Limine

    Having done forfeiture work for several municipal law enforcement agencies, I can attest to the nearly insurmountable burden placed on those whose property has been seized. Most defendants don’t contest the forfeiture. Those who do face the risk that anything they say in the forfeiture hearing could be used against them in their criminal proceeding. Many times, the police department will give the property back after an settlement is reached with the defendant.

    As to Hanson’s statement concerning the lack of public outrage, most of the defendant’s I have come across are minorities who have been caught in their vehicles with drugs or weapons.

  • The FBI has been known to cause collateral damage during investigations by seizing too many or even all of the servers at a given data center, regardless of who the servers belong to or whether they have anything to do with the activity under investigation.

  • anon

    Articles about this stuff have appeared periodically for decades. Clearly such news has not sparked an irate revolution of concerned citizens demanding the return of their supposed rule of law.

    I think you’re being far too complacent here. Government oversight is largely a public good, and these asset seizure regulations have had the unfortunate effect of creating a concentrated interest group (DEA and other law enforcement agencies) which is strongly motivated to protect and expand its “revenue” stream.

    This issue is simply an especially stark instance of public-choice failure. It says little or nothing about ctizens being unconcerned about such stuff, or even about “rule of law” violations occurring in milder circumstances.

  • PBRfan

    “If you aren’t doing anything wrong, you have nothing to worry about.”

  • Bill

    Some of these folks should avail themselves of statutes that permit small business to sue for damages where the government has been wrong.

    The problem might be associated with where you place administrative or other review. If the responsibility lies with, say, some federal officer, rather than the court, I would expect more hassle. This stuff should be managed by the court, rather than administratively.

  • CraigM

    This specific affront to individual rights can be traced to two pernicious trends in the American idiocracy:

    First, since the 1980’s there has been a deepening belief that government can take an increasing role in “protecting” citizens while cutting taxes – this necessitates raising revenue from some unpopular minority which is unable to fight back. Drug-related confiscations are one example, but red-light cameras, dramatically increased traffic fines, etc are effective ways for municipalities to replace tax revenues lost to anti-tax hysteria. Of course, this gives a cut of the new revenues to large insurance companies, since even if they were operating in free efficient markets, their actuarial analyses are based on lagged data. The result – lower taxes, but a higher net out-of-pocket cost for the services provided.

    Second, since the growth of 24/7 cable news, criminal acts against vulnerable people have seemed omnipresent. The key word is “seemed” – statistics reveal that a child was much more likely to be kidnapped/killed/injured by a stranger in 1965 than in 2005 – but I challenge you to find anyone who feels like that fact is true. So we demand more and more police “protection”. John Walsh and “America’s Most Wanted” have fed a fearful culture where we can’t let our kids out of sight, so they stay home, play videogames and communicate by text message, and basically turn into obese little beachballs with overgrown thumbs, clogged arteries, and overworked livers. It would be interesting to see a comprehensive analysis of attitudinal changes, media, obesity./inactivity and projected health/mortality impacts. I’m pretty sure that any reasonable set of assumptions would lead to the conclusion that John Walsh/FoxTV will be responsible for more premature death and suffering than all criminal predators combined.

    It may not be the case that we have nothing to fear but fear itself, but a little bit of reason could sure lead to a better allocation of public resources and make us all better off.

  • Violet

    Lots of people think the war on drugs is a bad idea.

    Hopefully it will come to an end in the future.

  • Allan Crossman

    Isn’t this against your constitution or something? Has it never been challenged at the Supreme Court?

  • botogol

    The Law that always jumps out at me when I visit the US – to New York specifically – is the notices on the steets prohibiting ‘Loitering’

    Unless I am misunderstanding, this means that on the streets of Manhattan, the heart of the Land of the Free, you can be arrested for standing still.

    From time to time I would ask my american co-workers about this curious law, and was always met with a shrug.

    Americans can also get arrested, I think, for crossing the street in the wrong place (‘Jay-Walking’)

    (NB this is not to say that we in the UK are any more free, we have our own laws…oh yes..)

    • Jack

      Unless I am misunderstanding, this means that on the streets of Manhattan, the heart of the Land of the Free, you can be arrested for standing still.

      As a resident of Manhattan, I assure you, we are only angry that this is not enforced.

    • David J

      Evaluating laws without considering the punishment side is not all that helpful.

      Loitering, I believe, only/mostly applies to semi-private property (where it would be difficult to enforce trespassing).

      J-Walking is a great example of a law that tries to save people from themselves; and make it clear that if you are hit by a car while J-Walking that you probably have little to no legal recourse.

      I don’t think (most) anyone truly wants to live utterly free since that would mean that everyone around you is free to do as they wish as well. The basic freedom we have is not so much of the physical nature but of a verbal nature – the freedom to speak up and not but prosecuted by the government for doing so. Practical considerations require that we regulate how individuals use our collective space.

      • My friends and I were having a discussion on pretty much the same topic last night, and my one friend told us about how he’d been arrested for jaywalking as a teenager by a cop who openly admitted that they were doing so to meet quotas.

        But then again, I live in Calgary and we have one of the worst police departments in Canada.

  • Robin Hanson writes that it’s “deluded” to think that democracy gives people “more control over their government”. Is this reasonable?

    I think this article takes an example of something bad that happens now, and uses that bad thing to allege that democracy does not “drastically discourage arbitrary applications of authority power”. To prove that, one would need to show comparable figures for other countries which are not democratic, or even more precisely, figures for democratic countries before they were democratic.

    Until that happens, there is nothing in this post that contradicts the thesis that the democratic rule of law will “drastically discourage arbitrary applications of authority power”.

    What’s in the water in GMU that makes many of its leading advocates hate democracy in such a sure manner?

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  • curious

    Today folks proudly bask in a glow of higher status by believing that they have more control over their government. They believe democracy puts them in charge

    is there any truth to this? are there actually people out there with a high internal locus of control with respect to government?

    sure, i would suspect that people in democracies would assign themselves a higher level of government influence relative to other forms of government. but that may not be saying much.

    but imagine making a list of potential government influencers in our “democracy.” it might include corporations, lobbyists, perhaps unions, etc. (pick your favorite villains.) and let’s say you include on your list a spot for “regular people” or “voters” or “citizens” (exact phrasing will matter in terms of implying control, but you get the idea). then you hand the list out and ask people to rank it according to their estimations of each influencer’s power over the government. what would people’s rankings would look like?

  • You must have been reading Rodney Balko of fame.

  • For some insight into how difficult pre-democratic governments found raising money, check out John Nye’s “War, Wine and Taxes“. More generally, Bertrand de Jouvenel’s “On Power” is a good narrative of how the power of the state increased even as the populace thought it had come under their constraint.

    CraigM, have you been following Bryan Caplan’s series on “Free Range Kids” and “A Nation of Wimps”?

    Allan Crossman, as Balko’s article notes, much of this is at the state/local level where the law differs from the federal level. Henry Hyde changed the law at the federal level to try to limit this, and some states followed suit. However, state authorities found ways to get around laws (requiring that seizures go toward the school system) by handing over seized property to a federal agency and then taking an 80% cut.

    Steve Burrows, Balko’s first name is “Radley”.

  • Regarding…

    Clearly such news has not sparked an irate revolution of concerned citizens demanding the return of their supposed rule of law.

    When I saw the magnitude of the wealth transfer of the bail outs, I thought people would be out with “pitchforks and torches” going after any member of the government they could get their hands on. But it didn’t happen. People just “took it“.

    People today ironically equate the phrase “the rule of law” with what was once called “the rule of man“. I.e., they accept being ruled.

    Do you really expect people who fully accept (men as) rulers to “tell” said rulers “no” in any meaningful way (except for what amounts to wining or begging).

  • Larry

    I have practiced law for more than twenty years and have seen how weakly our legal system adheres to the rule of law and protection if individual rights.

    It seems that many elements on both the left and the right are happy to see our liberty chipped away.

    Even after I got out of law school I would react to many of these outrages with a response of “surely that violates due process and surely it won’t stand up in court”. But these outrages are tolerated by the courts.

  • Robert Koslover

    Robin, I believe you are completely correct and I applaud you for speaking out about this issue. Also, would you like to comment on the related issue of Government seizures of property based on eminent domain?

  • Doug S.

    But what should I do about it?

  • bgreen

    h g wells wrote, in “the time machine”, of a future world where the surface living people, the eloi, were farmed by the subsurface moorlocks.

    his vision is very clearly being played out in many countries and especially the US “democracy”, where we see the working and middle classes consumed by a cannibalistic oligarchy.

    obama said in his state of the nation speech something about dishonesty hating daylight. yet he has done nothing to open institutional doors and let in the light.

    is barrack a moorlock pretending to be an eloi?

  • David J

    It is easy to say those who feel that Democracy gives them full control and zero abuse are deluded – they are. But it is delusional to assert such absolutism is held by others. If you instead posit that we humans realize that ANY political/social system is run by individuals and that to a large extent the daily actions of those individuals is not controllable; then is it delusional to believe that the status-quo is acceptable what change requires that some “cost” is paid by those wishing for change to occur?

    You can point out all the human-driven abuses you’d like but our system of government has provided means by which such abuse can be countered – means which include lawsuits and elections. Of course, individuals are always allowed to die for a change they desire greatly enough but lawsuits and elections ask them to risk much less than their life.

    I’ll give you that those means are not always used by those wronged but the system does provide them for the people to use. Just the fact that you CAN sue the government without risk of death is an improvement over many past and current political systems. And yes, a lawsuit does have a cost associated with it but the judicial branch cannot rule on laws directly but much interpret them in light of cases presented. But failing in a lawsuit does not usually cause one to die and success affects meaningful change without the downside of having to defending oneself for killing in the name of ones cause.

    The just completed Tillman case is a good example. The killer felt so strongly about his beliefs that he was willing to die so that unborn children could live. Those who would support his beliefs actually felt his actions hurt the cause as opposed to helping it. A court decision finding Tillman guilty would have the same immediate effect as the gunshot but the cause would not be tainted in the process and the solution would be more permanent.

    A diverse society cannot always agree and will always have corruption and abuse; so those who would “overlook” such abuse are simply accepting whatever level they deem as unavoidable given the cost they are willing to put up. Furthermore, such leniency is not only the msot practical way to run such a large society but the masses on the whole benefit from giving those in power discretion to act on their behalf and not require the court system to become involved in every single “situation”.

    Realism trumping idealism and delusion.

  • Check out my blog, the “Anti-Democracy Agenda”:

    and my book, “Anti-Democratic Thought” (Imprint Academic, 2008):


  • ad

    As long as we don’t hear about stuff being arbitrarily taken from someone we know, we can keep believing we are better than those ancients – we still live under a rule of law for those who really matter – people like us.

    So people only care that the rule of law applies to them, whether or not it applies to a bunch of other people? They just say that they care about whether it applies to other people?

    What a surprise.

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  • numerouno

    “The tree of liberty must be refreshed from time to time with the blood of tyrants and patriots”

    You can use this thought on an organtizational level or government level.
    Have a good day all.

  • The legal system is also increasingly biased against men as more laws are passed to protect women and children at the expense of negating equal protection and due process. Nowhere is this more apparent than in the treatment of those falsely accused of sex crimes. The False Rape Society discusses these issues in detail. The readers and critical thinkers of (especially the men) would do well by becoming more informed of this emerging issue in our culture. False rape claims such as those at Duke University and Hofstra in the past 3-4 years are only the tip of the iceberg and it is important for all men in the United States (as well as most of the anglosphere) to understand how changes in the law affect them and their families. Read the primer here: .

  • Today folks proudly bask in a glow of higher status by believing that they have more control over their government. They believe democracy puts them in charge, and that a “rule of law” drastically discourages arbitrary applications of authority power. They are deluded:

    Everything (before the delusion bit) in that paragraph is completely true for the majority of Americans. The applications of power you mention are no more arbitrary applications of authority power were the actions that transformed us from the society/government we were in colonial days to the one we are today even though we didn’t get from the original meaning of the constitution to where we are today via a rigorous formal process of crossing parlimentary t’s and dotting constitutional i’s.

    Ultimately it’s pretty silly to think of constitutional rights as being what protects us from arbitrary applications of power. I mean the men with the guns could always theoretically (as they did under Jackson) simply say “fuck that” to the established legal norms and demand you do what they wanted anyway. In the end analysis legal and constitutional rights are simply one way of ensuring a continuing cultural consensus on acceptable and unacceptable official behavior. When the meaning of the constitution evolves (as empirically it does) it doesn’t require enter some period of legal chaos because the real bulwark against arbitrary application of authority, the cultural/traditional norms, are always present even while undergoing change officials don’t think they can get away with blatant deviations from this norm and thus don’t.

    I’m VERY unhappy about it but drug law seizures are unfortunately not in violation of our cultural norms about official behavior. The reason such seizures continue despite the overwhelmingly clear constitutional case against them is preciscely the fact that the people (or at least those middle class and above) tacitly approve or at least don’t violently object to such programs.

    Indeed, I would say a correct description of the situation is that there is an unwritten societal understanding that says these forfeiture laws shall only be used against certain classes of people. Officials don’t get in trouble for violating the letter of the law or constitution but for violating these social norms and in this case the norm says you don’t fuck with middle class ‘respectable’ white people whose kids get caught in the car with weed the way you do with poor blacks and that’s the protection people have.