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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.
Legal Delusions
:-)
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.